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clearly divisible, and two distinct questions are raised, not only on the form of the pleadings, but on the actual

One was a claim in respect of a total loss of the cable, another in respect of the loss of a portion of the cable on quite a different occasion. In Traherne v. Gardner (a) we considered all the items claimed, and having found five or six of them in favour of the defendant, held that, as the issue was capable of being divided, and the questions raised were distinct, we should enter the result according to the truth. If Anderson v. Chapman (b) had been a case of liquidated damages with one breach alleged it ought to be taken for law. But since the late cases I entertain some doubt whether it was rightly decided; for Mr. Gray, in his Treatise on the Law of Costs, p. 64, questions if the issue in Anderson v. Chapman did not admit of division. Mr. Gray puts it very well thus: "If substantially there were but one breach, the issue would not be distributable; but if the general breach included two or more particular breaches, to each of which a distinct item applied, and the defendant had a distinct case and evidence as to one of those particular breaches, there seems to be no reason why the issue should not be distributable." If the matter is one in respect of which you claim unliquidated damages, it cannot be divided. To illustrate this, suppose a plaintiff were to sue for damages for the non-repair of a dwelling house to which a hothouse is attached, it would be absurd to say that he was suing for damages for not repairing each separately. But suppose a storm were to injure some windows in either house, that

(a) 8 E. & B. 161.

(b) 5 M. & W. 483.

would raise a distinct question. Here, not only is the issue divisible, but there were two entirely distinct questions before the jury.

BLACKBURN J. There can be no doubt that here, where the plaintiff recovered for one part of the case only, and was defeated on a distinct part (and that the most important), justice (supposing this an isolated case) requires that the defendant should have his costs of the part on which he has succeeded. But the question is to be decided, not on the justice of the particular case, but on the general rules of law. When this matter was before me (acting as deputy for my Lord Chief Justice before whom the case was tried), I came to the conclusion that Anderson v. Chapman (a) was precisely in point, and that I ought to follow it. I still entertain the opinion that the principle on which that case went is identical with that involved in the present, but I have changed my opinion as to the propriety of following that case now; for the principle on which the Court of Exchequer there intended to act was a right principle, but it was misapplied by them, and would be misapplied if followed here. I will not give at any length my reasons for thinking the principle in that case a sound one, as they are all stated by Mr. Gray in pp. 61-64 of his Treatise on Costs. I agree with my brother Wightman that where a defendant succeeds in reducing the damages for one individual cause of action the issue ought not to be divided; but in a case like Anderson v. Chapman (a), where the plaintiff sued for

(a) 5 M. & W. 483.

1862.

PATERSON

V.

HARRIS.

1862.

PATERSON

V.

HARRIS.

negligence and proved it only partially, or in a case like the present where there is a count on a policy of insurance, and one loss is shewn to have been caused by perils of the seas and one not, those are distinct matters for which separate actions might have been brought and separate pleas pleaded.

It is argued however that, as this is only one cause of action, the plaintiff could not have brought an action for partial loss before the voyage had come to an end. There is no authority for that, and the practice, I think, is to adjust and pay for partial loss during a voyage; and I do not see any reason why it should not be so. Stewart v. Steele (a), which has been relied on, is really no authority at all. There the jury erroneously included in the amount of damages the costs that would have been incurred if the ship had been repaired, but which never were actually incurred, seeing that she was broken up. It was with respect to that that Maule J. was speaking in the passage cited; and he refers to Livie v. Janson (b), which fully establishes his proposition.

(a) 5 Scott N. R. 927.

Rule absolute.

(b) 12 East, 648.

1862.

June 17th.

THE QUEEN, on the prosecution of the Burial Tuesday,
Board of AMERSHAM, against The Overseers of
COLESHILL.

Burial Acts.
15 & 16 Vict.
c. 85., 18 & 19
Vict. c. 128.
Parishes

united for

1. Where two parishes or places each maintaining its own poor, are united together for ecclesiastical purposes, a Burial Board for the whole district, appointed by the vote of the vestry, or meeting in the nature of a vestry, is properly constituted, by virtue of stat. 18 & 19 Vict. c. 128., read in connexion with stat. 15 & 16 Vict. c. 85, although this would purposes. have been otherwise under the 15 & 16 Vict. c. 85.

2. In such a case, in the contract for providing for the expenses of the burial ground, the Burial Board ought to fix the sum payable once for all;-not to fix one definite proportion for the amount to which each of the two parishes or places is to be chargeable in future: although this also would have been otherwise under the former Act.

3. In such a case, where money is borrowed by the Burial Board towards the expenses of providing the burial ground, the deed should charge the sum borrowed upon the future rates of the one part of the parish, and also upon the future rates of the other part (a).

MANDAMUS to the overseers of the poor of the

hamlet of Coleshill in the parish of Amersham in

the county of Hertford.

The writ after reciting that the hamlet of Coleshill was part of the parish of Amersham in the counties of Bucks and Herts, and before and at the time of the passing of the 18 & 19 Vict. c. 128. and 20 & 21 Vict. c. 81., was a place separately maintaining its own poor, and united for ecclesiastical purposes with the residue of the said parish, that is to say, with a place called Amersham, in the county of Bucks, also a place separately maintaining its own poor, and that those two places had a church and also a burial ground for their joint use, and that the inhabitants of those places had been accustomed to meet in one vestry for purposes common to such several places, and that the

(a) This is the case referred to by Crompton J. during the argument in Reg. v. The Overseers of Walcot, supra, p. 557.

VOL. II.

3 H

B. & s.

ecclesiastical

1862.

V.

Overseers of

vestry or meeting in the nature of a vestry of those two

The QUEEN places did, on the 31st October, 1857, pursuant to the said Acts and other the Burial Acts in force in England, COLESHILL by and with the approval of one of the principal Secretaries of State, appoint a Burial Board for the two places, that is to say, for the parish of Amersham, in the counties of Bucks and Herts, and thence from time to time did supply vacancies therein, and exercise the same powers of authorization, approval and sanction in relation to such Burial Board, and such other powers as under those Acts are vested in the vestry of a parish or place separately maintaining its own poor, and such Burial Board then became the Burial Board under the Burial Acts for the parish of Amersham; and that the Burial Board, with the sanction of the vestry or meeting in the nature of a vestry of the parish of Amersham, and the approval of the Commissioners of the Treasury, did borrow the money required for providing, laying out and enclosing two several burial grounds theretofore, with the approval of one of the principal Secretaries of State, provided for the parish of Amersham under the Burial Acts to be used, the one as a consecrated and the other as an unconsecrated burial ground, that is to say, the sum of 16004., and charge the future poor rates of the parish of Amersham with the payment of such money and interest thereon; and that the Burial Board did require the sum of 1521. for defraying expenses incurred by them in carrying the said Acts into execution, that is to say, for paying the agreed interest on the principal money the sum of 721., and the further sum of 807., being a sum equal to or exceeding one fiftieth part of the principal money so borrowed, which the Burial Board did then think proper

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