In the Goods of THOMAS DOUCE-DIGEST OF MARITIME LAW CASES. PROB.] cts [ADM. this case there is no suggestion, it would be a direct | mentions the names of certain children of the testator, thority. Cur. adv. vult. July 29.-Sir C. CRESSWELL, after stating the as above, said:-Allen v. M'Pherson, decided in e H. of L., shows that a Court of Probate has auority to omit from probate a clause introduced into will by fraud. I can see no difference in principle nere, as in this case, a clause, for which the deceased ve no instructions, and which was not read over to m, formed, per incuriam, part of the document gned by the deceased. I think administration with e will annexed may go, omitting the residuary clause favour of the children. Tebbs and Son, proctors. July 22 and 29. (Before Sir C. CRESSWELL, on motion.) In the Goods of THOMAS DOUCE (deceased). Execution by mark-Wrong name-Probate. 1. B. put his mark to a testamentary paper in which and these names are shown to be the names of the children of Thomas Douce. I had occasion to consider (In the Goods of Susanna Clarke, 1 Swab. & Trist. 22) whether a marksman signing, against whose mark a wrong name was written, was sufficient, and I held that it was. Here I am satisfied that Thomas Douce duly executed this paper by mark animo testandi, and that is as much as if he had written Thomas Douce; and the discrepancy between the real name and the wrong name which appears on the paper being fully explained, I think the will is entitled to probate. Austen and De Gex, solicitors. DIGEST OF MARITIME LAW CASES he was throughout described as C. B. The court, [N.B.-The LAW TIMES REPORTS, N. 8., will give all the Maritime being satisfied on affidavit that A. B. duly executed the paper by mark animo testandi, granted probate thereof as his will. In this case Thomas Orme, a schoolmaster, since deceased, wrote a will for the deceased Thomas Douce, who could neither read nor write. Orme, mistaking the Christian name, described deceased throughout as John Douce. of Witherby, in the county of Leicester, labourer, and wrote against the mark by which the will was executed, "The mark of John Douce." The will referred by name to five children of the testator. From the affidavit of Henry Orme, who, with his father the said Thomas Orme, subscribed the will, it appeared that, before the execution of the will, it was fully explained to Thomas Douce by Thomas Orme, that it was prepared and written by Orme as and for the will of Thomas Douce, and that the name "John" in the introductory words of the will in the testimonium clause, &c. was inserted in error and by mistake for Thomas, which was the real Christian name of the testator, and by which he was well and commonly known; that at the date of the will there was no person answering the name and description of John Douce, of Witherby, in the county of Leicester, labourer, other than the testator's son John Douce mentioned in the will. It was also stated on affidavit that the deceased Thomas Douce had the children whose names were mentioned in the will as the children of the testator. Law Cases decided from Michaelmas Term 1859. This Digest will contain all (except the Salvage Awards) decided from 1837 to Nov. 1859 A Digest of the Salvage Cases during the same period is appearing in the LAW TIMES.] FREIGHT. I. ADVANCE (continued). 1174. The master, who was principal owner of a vessel, entered into a charter-party, which stipulated that a lump sum should be paid by the charterers for the entire ship for power was given to the charterers to direct in what manner a voyage from Liverpool to Buenos Ayres, and unlimited and on what terms the master should sign bills of lading, and what goods should be received on board. Some parts of the freight were by the bills of lading made payable in England and some parts of it abroad. A bill at three months' date was, according to agreement in the charter-party, granted by the charterers to the master's agent for part of the lump freight, and six days after granting this bill the could not claim in liquidation of this acceptance at three charterers suspended payment. Held, that the shipowner months the freight which by bills of lading was made payable by the shippers in Liverpool, but which was not yet paid by them. The Court considered that, under this particular charter-party, the charterers were pro hac vice owners of the ship so far as regarded the matter in question, and the master their agent, and not the agent of the shipowner, in contracting with the shippers; the bills of lading did not stipulate to whom the advances of freight were to be paid: (The Secret; Marquand v. Banner, Q. B., Shipping Gazette, April 30, 1856; Harrison's Digest for 1856, 234; 6 El. & Bl. 232; 2 Jur. N. S. 708; 25 J. 313, Q. B.; 27 L. T. Rep. 66) 1175. The freight of goods by a general ship having been paid at their shipment, and such payment admitted in the bill of lading, the vessel being totally lost, and the goods transhipped by the master at the same rate of freight: held, that the consignees were not liable to pay the freight by the new ship: (The Almeida Family, Kirk v. Lim Eng Tuan, Court of Judicature of Prince of Wales Island, Singapore and Malacca, Aug. 14. Shipping Gazette, Oct. 31, 1856.) the sea, the decision as here reported seems to be erroneous.] [Note by the compiler.- If the vessel was lost by perils of 1175 a. A charter-party stipulating that the freight was to be paid (subject to insurance) by acceptances on ship clearing from Liverpool on her outward voyage: held, that the duty of insuring devolved on the merchant, and not on the shipowner: (The Sir Charles Napier; Jackson v. Isacson, C. E., July 10. 1858, Shipping Gazette; 27 L. J. 392, Ex. ; 3 H. & N. 405; Maclachlan on the Law, of Merchant Shipping, 426. See No. 1172.) II. BOTTOMRY. Dr. Swabey moved for probate as of the will of Thomas Douce to be granted to the executor named in the will. The Goods of Eleanor Bryce, 2 Curt. 325, comes nearest to the present case in circumstance; there a testatrix signed a paper by a mark, and no name appeared on any part of the paper. Sir Herbert Jenner, in disposing of that case, says: "The paper is identified as being the will of the deceased; and, being signed, &c., I am of opinion, that the statute is sufficiently complied with." Here a wrong name appears on the face of the paper, but if the court is satisfied 1176. When proceedings are taken upon a bottomry bond that it is identified as being the will of the deceased, it on ship, freight and cargo, the Admiralty Court has jurisis submitted that it will be entitled to probate: (Indiction to consider both the validity of the bond, and also the Goods of Shuttleworth, 1 Curt. 911, was also cited.) whether the consignee of the goods is bound to pay the surplus of the freight or not to the shipowners afterwards: (Place v. Pott, E. C., April 27. 1853; and H. of L., July July 29.-Sir C. CRESSWELL-In this case a per-3, 1855; 1 C. L. R. 679; see I C. L. R. 45, Ex., April 15, son of the name of Thomas Douce, an illiterate man, placed his mark to a paper which had been prepared for him by a schoolmaster, against which mark the schoolmaster wrote John Douce, and throughout the document so described the testator. On application for probate it was objected that it was not the will of Thomas Douce; but I am quite satisfied that Thomas Douce was the man who put his mark to the paper, intending thereby to execute it as his will. The contents of the paper afford internal evidence of this, for it Cur, adv. vult. 1853; same case, before Ex. Ch., June 16 and 20, 1854; C. L. R. 1177; see Maclachlan on the Law of Merchant III. CONSIGNEE'S LIABILITY. stances for freight of goods received by agents to whom he 1177. Consignee held not liable under certain circumhad indorsed the bill of lading: (Tobin v. Crawford, &c., Northern Circuit, Liverpool, Aug. 25, 1837; 5 M. & W. 235; Shee's Tenterden, 319; Maclachlan on the Law of Merchant Shipping, 427.) 1178. Under a charter-party wherein it was stipulated that the freight was to be paid upon delivery of the cargo, the ADM.] SELBY V. THE CRYSTAL PALACE DISTRICT GAS COMPANY. CHAS V. INSURABLE INTEREST IN PROFIT ON SHIFOWNESS' GOD, captain delivered part of the cargo, but withheld the rest of it until the assignees of the bill of lading should pay the freight. The ship was detained in consequence of the re- 1189. A shipowner may insure as freight the prof: fusal of these assignees to pay the freight until the whole pected to be derived from carrying his own pools ons cargo was delivered: held, reversing the judgment of the own ship. Risk on freight held to have commented te Court of Q. B., May 9, 1858 (3 W. R. 421, Q. B.; ship being in an artificial dry dock for repairs at her las Shee's Tenterden, 221), that there was no new contracting port on the coast of Coromandel, and broken to pers entered into by the assignees presenting the bill of lading by an accident while being moved out of it, and, when que to the master, whereby they could be found liable in ready to ship the cargo and put to sea, the cargo also has iz damages for such detention: (Moller v. Young. E. C., Nov. been purchased and ready for shipment: (Deraz v. Jum 26, or Dec. 5, 1855; Harrison's Digest, 231; 5 El. & BI. C. P., May 8, 1839; 5 Bing. N. C. 519; 7 Scott. 507; 3 Jur. 755; 2 Jur. N. S. 393; 25 L. J. 94, Q. B., Ex. Ch. ; 678; Arnould, 272, 528; Phillips, 333; Hildyard's enter 5 El. & Bl. 71; 1 Jur. N. S. 934; 24 L. J. 217, Q. B.; of Park on Insurance, 64.) See case of Fint 1. Peng W. Rep. 149; see Maclachlan on the Law of Merchant (1830), Lloyd and Welsby's Mercantile Cases, 54; a Shipping, 369.) on an open policy on freight, the freight arising paris on shipowners' goods, partly on goods shipped under a var contract with others. 1178 & Indorsee of bill of lading held not liable for freight after indorsing the bill of lading over to another person: (Smurthwaite v. Wilkins, C. B., Feb. 11, 1862; 5 L. T. Rep. N. S. 842.) IV. DAMAGE, Deficiency, or Increase in Measure of 1179. Half freight allowed on damaged grain in accordance with usage at Gloucester: (White v. Sturge, &c., Gloucester C. C., May 14, 1848, Shipping Gazette.) 1180. Question as to freight of damaged corn: (Cappolo v. Russell, Limerick Assizes, March 5, 1851; Printz v. Ralli, C. P., Feb. 17, 1853: Tamraco v. Lucy, Gloucester, C. C., May 9, 1853; Huntley v. Sturge, Gloucester C. C., Nov. 26, 1853, Shipping Gazette.) 1181. Held by a majority of the judges, where the jury had found that the corn had increased in bulk, from the effects of sea-water during the voyage, beyond the measure at the port of shipment, that the shipowner was not entitled to freight for the excess: (Gibson v. Sturge, C. E., June 14, 1855; 10 Ex. 622; Shee's Tenterden, 311; Maclachlan on the Law of Merchant Shipping, 369.) 1182. Question as to freight of grain so damaged as to be almost useless, refused by the merchant, and sold by the captain at the port of destination: (Ranville v. Roulstone, C. P., Dublin, Shipping Gazette, Dec. 14, 1855.) 1183. Loss by leakage having arisen by casks of oil being exposed to the sun at New Orleans for two days before shipment, chiefly through the negligence of the shipowners. consignees held entitled to set off the damage against the freight. Rule of Admiralty Court as to equal division of damages where both ships are in fault in case of collision applied to the special case before the court. To put the resps, to a cross-libel for damages in such a case might be a denial of justice. If the damage proved greater than the freight, the court would not sustain a new libel afterwards for the excess. The remedy must be by a cross-action, and not a claim for set-off, if more than the amount of freight is sought to be recovered. Numerous English and American decisions cited: (American case: Snow, &c. v. Carruth, &c., District Court of U. S., Massachusetts, May Term 1856, 9 M. L. R. 198.) 1184. According to bill of lading 119 tons of coal were shipped, while the account of delivery showed only 110 tons to be landed. The difference could only be explained by an error in the one account or the other. It was not questioned that all the coals actually laden had been delivered. Held, that the master was entitled to full freight for the quantity specified in the bill of lading. Demurrage for three days occasioned by this controversy as to freight not allowed: (American case: Steelman v. Taylor, District Court of U. S. for Massachusetts, Jan. 10, 1856; 9 M. L. R. 36, Boston, U.S.) 1185. Question as to freight of beans increased in measure by sea damage: (The Ochtertyre; Hendsy, &c. v. Tymbus, &c., Liverpool C. C., May 9, 1856, Shipping Gazette.) 1186. Shipowner held not entitled to freight on excess of Indian corn delivered at port of destination, the corn having increased in bulk by heating on the voyage. Evidence as to extent of increase in measure of heated cargoes of corn: (The Commandeur Hvidfeldt: Martins v. Usborne, Recorder's Court, Cork, Nov. 6, 1856, Shipping Gazette.) 1187. Freight on increase of quantity of corn, not seadamaged, but alleged to be heated during voyage. Bill of lading considered to be incorrect in regard to quantity. Held that the quantity turned out at port of discharge was the measure of the freight: (Observations as to case of Gibson v. Sturge; Cooke v. Hubback, Liverpool, C. C., Jan. 22. 1858, Shipping Gazette. But see No. 1181.) 1188. Freight of bricks held to be recoverable from shipper or charterer, although arriving at their destination in a state unfit for use. An action for damages must be separately instituted if the fault or neglect of the shipowner is alleged. The bricks were reduced to dust, or otherwise rendered useless for building purposes, by heavy machinery having been stowed over them. The correct rule of law is laid down in Ritchie v. Atkinson and Davidson v. Gwynne: (The Matilda Wattenbach; Garrett v. Melhuish; V. Ch. C., April 27, 1858; W. Rep. 491: 33 L. T. Rep. 25; Maclachlan on the Law of Merchant Shipping, 399.) VI. INTAKE MEASUREMENT. 1190. Charter-party stipulating that freight was to be payable on the intake measurement of the arge st. 5. Andrew's, N.B. Mode in which extent of liability of migr for deficiency of cargo is to be ascertained: (TM Xey Annah; Barnes, &c. v. Grace, Bristol, C. C. Shipping Gazai, Sept. 28, 1855.) VII LIEN. 1191. Where by stipulation in a charter-party the fr was to be paid “on unloading and right delivery of the cargo, two months after the vessel's report at the Costinhouse:" held, that the freight was not payable on t months after the inward report, and that the shiper had not, after the cargo was discharged. any lien theres for freight. Case as to effect of usage in constraction of charter-parties: (The East London; Alsager v. The &t. Cate rine's Dock Company, C. E., Nov. 19, 1815, Shipping Gente: 14 M. & W. 794; Maclachlan on the Law of Merchant Shipping, 436; see also Shee's Tenterden. 2!6, 234, as t master entering goods in his own name in Queen's wate house to preserve his lien for freight.) 1192. Case relative to captain's lien upon or right to tain cargo until freight is paid: (Green, &c. v. Diron, E. C. E, July 11, 1848, Shipping Gazette) 1193. The captain has a lien on cargo against freighters, but only for freight named in bills of left, though less than chartered freight; but against charge or third parties receiving the goods on their behalf, the lin prevails for the chartered freight: (Gledistames v. Aïal P., April 22, 1852; 12 C. B. 202; Shee's Tenterden, 292, See Maclachlan on the Law of Merchant Shipping, 43× 45% also Kern v. Deslandes, Court of C. B., May 3, 4 and 6. 4 L. T. Rep. N. S. 349; Cases founded on by the Car Small v. Moates, 9 Bing. 579; Gledstanes v. Allen, as akan, 12 C. B. 202. (To be continued.) Equity Courts. COURT OF APPEAL IN CHANCERY. May 10, 12, 13, and June 6. Private road-Dedicated to the public-Freeholder- On a deed of partition between A. and B. of freed lands to be let for building villas, the parts alle d for roads were limited to A., in order that e and the occupiers and owners should at all tixs have a full and complete right of road or passag over, along and upon the same, in as absolute a mode of enjoyment as if the same were pat roads, and A. covenanted accordingly. Sere villas were built, some of which were soli, others let to different persons, at the invitation f some of whom, but without the consent of th others or of A., a public gas company brake w the roads and laid down their pipes for t supply of the houses. A. then filed a bill fira injunction, and that having been dismissed by the M. R., the plt. appealed: [Note by the compiler.-The rule of law seems to be Held, that he could not interfere to prevent the com strained here to the utmost. Are bricks reduced to dust still be considered as bricks ?] pany's acts, inasmuch as every occupier had t same right to call in, for the purpose of CHAN.] SELBY V. THE CRYSTAL PALACE DISTRICT GAS COMPANY. [CHAN. or enjoyment, all such aid as he might have called the said map or plan, as and for roads only, for the in had the roads been public, and the bill was mutual use and benefit of the said G. Selby, U. dismissed. Price and James Staley, and all others the owners and ord Justice Knight Bruce consented to the dis-occupiers for the time being of all the said several missal of the bill, but would have preferred retaining the bill for a stated time, with permission to the plt. to bring an action to try the question of right, though without any injunction in the meanwhile. The This was an appeal by the plts. against a decision of he M. R., dismissing their bill with costs. rayer of the bill was to the following effect : 1. That the defts. the Crystal Palace District Gas ompany, their agents, servants and workmen, might | e restrained by the order and injunction of this ourt from entering upon and breaking up the aid roads, except so far as might be necessary for he purpose of taking up and removing the pipes which had been laid down thereunder; and from llowing any of the said pipes to remain in or below the surface of the said roads; and from allowing ny gas to flow through the said pipes; and from llowing any part of the said roads which had been roken up by the said company, or which might be roken up in the process of removing the said pipes, o remain open or broken up, or otherwise than in its original condition, and that the said coinpany might be ordered to remove the said pipes and to restore the said land to its original condition. 2. That the lefts. the Crystal Palace District Gas Company might pay the costs of that suit. 3. That the plts. might have such further or other relief as the circumstances of the case required." closes or pieces of land, better known as one piece or parcel of land called Ravensbourne-park, and of all the villas and dwelling-houses for the time being standing or being thereupon, in the most complete mode of enjoyment as if the same were public roads. Certain parts of the said land were then limited to uses to bar dower in favour of the said Underwood Price, and other parts to similar uses in favour of the said George Selby," the said George Selby, for himself, his heirs, appointees, executors, administrators and assigns, doth by these presents grant, covenant, promise and agree to and with the said C. Fallowdown (the trustee), and his heirs, and also as a separate covenant to and with the said Underwood Price, his heirs, appointees and assigns, in manner following, that is to say: that he the said Underwood Price, his heirs, appointees and assigns, and the owners and occupiers for the time being of all and every part of the said lands and hereditaments thereinbefore limited to the use or for the benefit of the said Underwood Price, his heirs, appointees and assigns as aforesaid, and of all and every the messuages and dwellings then, or at any time thereafter to be, erected and built thereupon, and his, their and every of their relations, friends, visitors, tradesmen and servants, and others connected or having business to transact with him, them, or any of them, either with or without carriages and animals of any and every description, The bill stated an indenture of release and appoint-shou d and might, from time to time, and at all times ment, dated the 10th March 1830, between Underwood Price of the first part, George Selby, now deceased, under whom the present plts. were entitled, of the second part, and Charles Fallowdown of the third part, whereby, after reciting, amongst other things, that certain lands, called Ravensbourne-park, in the parish of Lewisham, then stood limited as to one undivided moiety thereof to the usual uses to bar dower in favour of the said George Selby, and that the said Jereditaments had been purchased by the said U. Price and G. Selby in order to build villas and substan ́tial dwelling-houses thereupon, and under an understanding that proper roads should be made thereon and for ever thereafter continued as such roads only for the accommodation of such villas and dwelling-houses, and that such roads had been marked out in the map or plan drawn in the margin of the said indenture; and that the said U. Price and G. Selby had agreed with one James Staley for the sale to him of certain parts of the said land, being the parts coloured red upon the said plan, and that the said James Staley and the owners and occupiers for the time being of the said land -contracted to be sold to him should at all times have a right of road and passage over, upon and along all the said roads marked out as such in the said plan, in as absolute and complete a mode of enjoyment as if the same were public roads. The said indenture then recited an agreement between U. Price and G. Selby for partition, and that it had been agreed by and between them that all the roads marked out as such in the said plan should be conveyed or limited to the said George Selby, his heirs, appointees and assigns for ever, and that the said U. Price and the owners and occupiers for the time being of the said parts or portions of land agreed to be taken by them in severalty should at all times thereafter have a full and complete right of road or passage over, upon and along all the said roads marked out as such as aforesaid, in as absolute and complete a mode of enjoyment as if the same were public roads; and also that it had been agreed that the said George Selby should be bound to continue the said several roads marked out as such on for ever thereafter, at his, their and every of their own free will and pleasure, go, come, pass and repass in, over, upon, along and through the said several roads marked out as aforesaid in the said map or plan drawn in the margin of these presents, and have the full use and enjoyment of all and singular the said several roads, in as full, free, complete and absolute a manner to all intents and purposes whatsoever, as if the same were public roads; and that he, the said George Selby, his heirs, appointees and assigns, shell and will at all times hereafter keep and continue such parts of the said lands and hereditaments hereinbefore limited to his and their use and benefit as aforesaid, as were in the said map or plan marked out for roads, as and for such roads only for the mutual use and benefit of the said George Selby, Underwood Price and James Staley, and the owners and occupiers for the time being of all and every part of the said closes, lands and hereditaments herein before mentioned and described, and the villas and dwellings now or at any time hereafter to be erected and built thereupon; and that he, the said George Selby, his heirs, appointees and assigns, or the owners or occupiers for the time being of the said messuages or tenements, lands and hereditaments hereby limited to his and their use and benefit as aforesaid, will at all times hereafter, whenever the same shall be necessary, join in making and repairing all the said several roads marked out in the said map or plan upon the whole of the said piece or parcel of land or ground called Ravensbourne-park; and also that he the said George Selby, his heirs, appointees and assigns, shall and will at all times hereafter keep and continue such part of the lands and hereditaments hereby limited to his and their benefit, containing about three acres, as in the said map or plan described as ornamental ground, as and for ornamental ground only." The said indenture contained several covenants and provisions for the repair of the said roads at the joint expense of the said U. Price, George Selby and James Staley, and their respective heirs, appointees and assigns, or the owners and occupiers for the time CHAN.] SELBY V. THE CRYSTAL PALACE DISTRICT GAS COMPANY. being of the said messuages and lands thereby limited to uses for their respective benefit. The bill charged that the lands thus marked for roads were made into, and were in fact, private roads, leading only from the highway to Ravensbourne-park, and the houses built upon it, and not elsewhere, and that such roads had never been dedicated to the public, and had never been repaired as public highways, but always at the expense of the owners and occupiers for whom alone they had been used. George Selby died in March 1860, and the plts., his five sons, were his devisees as tenants in common. The devise included the said roads. [CHAS consent of all owners and occupiers was recen and that had never been obtained. The occupies wer only owners of an easement, which gave them 1) right to interfere with the soil; here there wa thing but that the occupiers should have as mai enjoyment of the way as if it were a p way; but that did not make it one for sta purpose as the defts. the company had in view. T public had no rights upon the roads at all, and hal er used them, and could only use them, by way of mie ance. Selby had no power to dedicate the roadste public; inoreover, the company had never grea necessary notices. [Lord Justice KNIGHT BeraAre the houses supplied with water by pipes haar the road?] Yes; but that was with the express pemission of all the parties. The mortgagees took pr with the plts. Any ambiguity which might be tant to exist upon the covenant was removed by the re of the deed, the intention of which wsz [Lord Justice KNIGHT BRUCE. How are the bus to be drained if the contention of the ps correct ?] The defts. the Crystal Palace District Gas Company are incorporated under a private Act (21 & 22 Vict. c. 129), with which the Gasworks Classes Act 1847 (10 & 11 Vict. c. 15) is incorporated. The clauses which relate to the question in dispute are the 6th, 7th, 8th and 9th. The first of these provides that "the undertakers under such superintendence as is hereinafter specified may open and break up the soil and pavement of the several streets and bridges within the limits of the special Act, and may open and break up any sewers, &c, and do all other acts which the undertakers shall from time to time deem necessary for supplying gas to the inhabitants of the dis-tended that it never could have been the intentio trict included within the said limits, doing as little damage as may be, &c., and making compensation for any damage which may be done in the execution of such powers." The 7th section enacts "That nothing herein contained shall authorise or empower the undertakers to lay down or place any pipe or other works into, through, or against any building, or in any land not dedicated to public use, without the consent of the owners and occupiers thereof." The 8th section, "That before the undertakers proceed to open or break up any street, bridge, sewer, drain, or tunnel, they shall give to the persons under whose control or management the same may be, notice in writing of their intention to open or break up the same, not less than three clear days before beginning such work." And sect. 9 enacts, "That no street, bridge, sewer, &c., is to be opened or broken up except under the superintendence of the persons having the control thereof and their officers, and according to such plan as shall be approved of by such persons or their officers." In July 1861 this company was applied to by letter signed by some of the occupiers of certain of the houses to lay down gas-pipes for their convenience, and on the 16th the company, without the consent of the plts. or the other defts. (who were mortgagees of George Selby, deceased) entered upon and broke up a great part of one of the roads and laid down gas-pipes. Upon this the plts. at once sent the company a written notice to desist therefrom, but the defts. the company continued their operations, and laid down gas-pipes and connected them with several of the houses built upon the land. Upon that state of things the present suit was instituted. The cause was heard upon motion for a decree, when the M. R. refused to decide the question in the absence of the owners or occupiers of the houses to which the gas had been supplied. They appeared upon being served with a copy of the pleadings, and of the notice of motion. His Honour was of opinion that, as the occupiers and owners of houses desired that the gas should be supplied, the plts. had no right to interfere, and he dismissed the bill with costs. The plts. appealed against that order. Lloyd, Q. C. and Archibald Smith supported the appeal, and contended that the deed limited the right to the soil in the roads to Selby; and he was only bound to keep a passage open for the occupiers of the houses. It was a private road and nothing else; it was not "dedicated to the public use," and therefore was not within sect. 7 (already referred to). The Ware for the defts. the mortgagees, who had it appealed, but who took the same view as the pits. Selwyn, Q.C. and Jessel, for the gas company, two of the three persons to whom this property mi belonged, to put themselves entirely at the many the third, who might refuse them gas, water mi drainage unless they complied with such terms 13 1 thought fit to impose. The covenant could then not be construed to give to the owners and comes the mere right of passing over the surface, bat have given them the right of introducing to the p perty what were among the prime necessaries of For all such purposes the road was a public road fr the use of the owners and occupiers. The words d appeared to them to exhaust all the terms which wei make the roads public. If the plts. were dur they had their remedy at law; but they contem that no injury had been done, and that there wa pretence for interfering by injunction. G. M. Giffard, Q. C. and Francis Webb sprevi for those occupiers or owners of houses who had vited the company to supply gas, and they supp the decree. The following cases were cited:-As to the dediation of the road to the public: The Trustees of lyn School v. Merryweather, 11 East, 375 (note); Et v. The Swansea Waterworks Company, 17 Q.B. 25: Rex v. Lloyd, 1 Camp. 260; Roberts v. Kam, de 262 (note); Lethbridge v. Winter, Ib. 263 (19) Woodyer v. Haddan, 5 Taunt. 125; Wood v. Fes, 5 B. & Ad. 454; The Trustees of the British v. Finnis, 5 Car. & F. 460; Barraclough v. Johura, 8 Ad. & E. 99; Poole v. Huskinson, 11 M. & V. 827; Davies v. Stephens, 7 Car. & P. 570; Ret Bliss, 1 Jur. 959; Roberts v. Hunt, 15 Q. B. Rex v. Lyon, 5 Dow. & R. 497; Rez v. Leake, 3 & Ad. 469; The Grand Surrey Canal Company. Hall, 1 M. & Gr. 392; Brownlow v. Tomlinson, 1484; Reg. v. East Mark, 11 Q. B. 877; Petrie, 4 Ell. & Bl. 737; The Attorney-Generi The Sheffield Gas Company, 3 De G. M. & G. 34. and also the statutes 2 & 3 Vict. c. 73, s. 2; ant & 5 Will 4, c. 50, s. 23. As to right to relief injunction: The Attorney-General. The Kingdom Electric Telegraph Company, 10 W.E 167; The Rochdale Canal Company v. King, 2 N. S. 78; Wood v. Sutcliffe, Ib. 163. Lloyd, Q.C. having been heard in reply, their Lordships reserved judgment until the 6th June, when Lord Justice KNIGHT BRUCE said:-The principas or sole object of this suit is to obtain an injunction to prevent the defts. the Crystal Palace District 6 Company from laying down gas-pipes under ceas CHAN.] SELBY U. THE CRYSTAL PALACE DISTRICT GAS COMPANY. [CHAN. pads in Kent, and breaking the surface of those roads, | houses mentioned in the bill might be affected by he prayer of the bill being the [his Lordship then the decree to be made, ordered the cause to stand over, ead the prayer to the effect already stated, and con- and notice of the proceedings to be given to those inued as follows]:-The roads to which the suit occupiers; and they having accordingly appeared at elates, and in the surface and soil of which the plts. the hearing, his Honour ultimately, by his decree dated laim to be interested, are or were private, or in a sense the 10th March 1862, dismissed the bill with costs. private, and their use and enjoyment was to be accord- The appeal before us is by the plts. from the dismissal ng to a provision made by a deed of the 10th March of the bill. The ground on which the M. R. proceeded 1830, mentioned in the bill. The plts. insist that the in dismissing the bill, as I collect from his Honour's roads are still private roads under the deed, and accord-judgment, was in substance this: that, notwithstandng to its terms. The defts. the gas company, howing that these roads might be private roads vested in ever, contend that by dedication they have become public roads, and with the persons who, though not parties to the bill, have been allowed to appear in this cause as if they were parties, insist that, whether the roads are public or private, the company's Acts, of which the bill complains, and against which it seeks an injunction, were and are authorised and lawful. This the plts. deny. The M. R. dismissed the bill; and the matters which were before him, and are before us, appear to me such as plainly to render one of two courses right-namely, either dismissal of the bill, or permission to the plts. to bring an action for the purpose of trying the question of right, the bill being retained in court for a twelvemonth with a view to that object, and the suit to be dealt with after the plts.' failure to sue in due time, or their success or defeat in the action, but without any injunction in the meantime; my reasons being, the very slight nature, as it seems to me, of the damage done, and likely to be done, by the company's works-the object of those works-the circumstances in which they began, and were continued the language of the deed already mentioned, and the doubt whether the roads have or have not become, by dedication or otherwise, public roads. I think it not clear upon the evidence that the plts. have the alleged right, upon the supposed existence of which the bill proceeds, and that the case is one in which more inconvenience and more damage would be caused by granting an injunction erroneously, than can be caused by refusing or delaying an injunction erroneously. My impression, however, is against the dismissal of the bill at present, and is in favour of the other of the two courses which I have mentioned. But, I repeat, that an injunction at pre-out as such should be conveyed or limited to Selby, his sent is, even on that theory, in my judgment impossible; and if Turner, L. J., agreeing with the conclusion of the M. R., should hold that the dismissal ought to remain undisturbed, so, of course, it will be. the plts.-and his Honour, without deciding the question whether they were so or not, so treated them for the purposes of his decision-they were by force of the covenant contained in a deed which I am about to mention, and by which the plts. were bound, to be deemed and taken to be public roads so far as the use and enjoyment of them by the occupiers of the houses mentioned in the bill were concerned; and that those occupiers, therefore, were well entitled, as against the plts., to have the roads broken up and the pipes laid down for the purposes of having gas introduced into their houses. This view of the case renders it necessary carefully to consider the covenant in question, and examine the deed in which the covenant is contained. [His Lordship then read the deed and the covenant already set forth, and proceeded thus:] The first question which has presented itself to my mind on considering this deed has been, whether the lands marked out as roads were intended by this deed to be conveyed, or were conveyed by it, to George Selby as beneficial owner in part of the lands to be taken by him in full for his undivided moiety, or whether they were not intended to be, and were not vested in him merely in order that the roads might be made and maintained? The recitals of the deed are very peculiar in this respect. They are, that such of the lands as were thereinafter limited to the use or for the benefit of Price in severalty should be taken in full for his undivided moiety of all the lands, and that such of the lands as were thereinafter limited to the use or for tho benefit of George Selby in severalty should be taken in full for his undivided moiety of those lands; and then, that it had been also agreed that all the roads marked heirs, appointees and assignees the word "roads," as there used, meaning, as I conceive, the land marked out as roads, there not being in the deed any conveyance to Selby of roads quá roads; so that in this part of the Lord Justice TURNER said :-The bill in this case is deed there is, as it seems to me, a distinction drawn filed by the devisees under the will of George Selby, between the lands to be conveyed to Selby in severalty against the Crystal Palace District Gas Company, in full for his moiety and the lands marked out as and against several persons who are mortgagees of the roads. Proceeding, then, to the operative part of plts.; and the bill alleges that the plts., as the de- the deed, the same distinction appears to me to be visees of George Selby, are entitled to certain private still kept up as to the lands marked out for roads. roads leading from the highway into certain lands The conveyance to Selby is of the lands coloured called Ravensbourne-park; and it further alleges that blue, which are particularly described as consisting of "The plts. Frederick Selby, Alfred Selby, Henry specified quantities of building land and ornamental Selby and Edward Selby, reside on the said lands; ground, and then by a separate description also of the and the defts. the Crystal Palace District Gas Com- lands marked out for roads, and to be always contipany, well knowing that the plts. objected to the said nued as such as aforesaid. Looking at this deed, roads being broken up, and such pipes laid thereunder, therefore, in both its parts, I am very much disposed and that they would not allow the same to be done, to think that the lands marked out as roads were not took advantage of the plt. Edward Selby, being from intended to be, and ought not to be, held to have been home, and of the plts. Frederick Selby, Alfred Selby conveyed by to Selby in part of his undivided moiety, and Henry Selby going to London daily on business; but ought to be held to have been conveyed to him and on the said 16th of July 1861 the servants or only for the purposes of the roads. This construcagents of the said company, having collected a large tion is, no doubt, open to the difficulty that it cannot number of workmen, entered upon and began to break be said that the lands marked out for roads are not up the said roads as soon as the said last-named plts. conveyed to George Selby in severalty, and that it had set out for London, and laid down and covered in must be admitted, therefore, that they fall within the a considerable number of the said pipes in the course description of what he was to take in part of his of that day;" and therefore the bill prayed for an in-share; but, although they fall within the words, they junction. Upon the cause coming on before the do not, I think, fall within the meaning of the deM. R., on motion for decree, his Honour, con- scription, for they are not conveyed to him to be dealt sidering that the interests of the occupiers of the with as he may think fit, but for the specific purpose Vol. VI, No. 146, N.S |