Q. B.]

also true that when a fact is one of public notoriety, as of war, or where it is one which is a matter of inference, and the materials for informing the judgment of the underwriter are common to both, the party proposing the insurance is not bound to communicate what he is fully warranted in assuming the underwriter already knows." And Mellor, J. quotes from Lord Mansfield's judgment in Carter v. Boehm (3 Burr. Rep. 1910) as follows:"An underwriter cannot insist that the policy is void because the insured did not tell him what he actually knew, what way soever he came to the knowledge. The insured need not mention what the underwriter ought to know; what he takes upon himself the knowledge of, or what he waives being informed of." And Shee, J. expressly says:

"He is not bound to communicate facts or circumstances which are within the ordinary professional knowledge of an underwriter." It is therefore, it appears to us, impossible to contend successfully that there was any misdirection on the part of the judge in leaving this question to the jury. The rule, therefore, so far as it relates to the entering the verdict for the defendants, or to imputed misdirection by the judge, must be discharged. It only remains to consider whether there ought to be a new trial, on the ground that the verdict is so unsatisfactory on the questions of fact left to the jury that we ought not to allow it to stand. the reasons already assigned in discussing the question of misdirection we think that we cannot come to that conclusion, and that there was evidence on both questions fit to be submitted to the jury, and that we cannot say that they were wrong in the conclusion at which they arrived. The rule, therefore, on this ground also, will be discharged.

For

COCKBURN, C. J.-I regret to be unable to concur with my learned brothers in the judgment which has just been read. I am of opinion that the fact that the survey of the vessel necessary to enable her to keep her class in Lloyd's register had been declined by the owner was a material fact, and one which ought to have been communicated to the underwriter. The retention of a vessel in Lloyd's register as of the class A 1 is so important to the owner as promoting the profitable employment of the vessel, that the refusal to submit to the survey necessary to enable her to retain her class, leads fairly to the inference that the owner is conscious that the condition of the vessel has so far deteriorated that the result of the survey would be unfavourable; and, as the degradation of the vessel from her class is the necessary consequence of the refusal to submit to the survey, the fact of such refusal would produce the same effect upon the mind of the underwriter as if the vessel had actually been degraded, and he had become aware of it. Now, the degradation of a vessel from her class appears to me important, as necessarily carrying with it the presumption that a deterioration in the condition of the vessel has taken place; a circumstance, of course, calculated materially to influence the decision of the underwriter as to the amount of premium he will require as the consideration for undertaking the risk. I take it, that if an underwriter, not being a subscriber to Lloyd's, who had been in the habit of insuring a vessel represented to him as classed A 1 in Lloyd's register, were asked to renew the insurance at a time when the vessel had been degraded from her class, this not being within his knowledge, the degradation of the vessel would be

[Q. B.

a fact, the omission to inform him of which would amount to concealment of a material fact. If so, the refusal to submit to the survey being, as it seems to me, equivalent to degradation, the fact of such a refusal was, in my judgment, a material fact which ought to have been communicated to the underwriter, unless the latter knew, or ought to have known it. And this brings me to the second question. Now I entirely adhere to the doctrine laid down in Bates v. Hewitt (sup.), namely, that a party proposing an insurance is not bound to communicate to the underwriter that which the underwriter already knows, or that which in the course and conduct of his business he ought to know, and may properly be taken to know, or that which may be matter of inference from materials common to both parties. The first of the three cases does not arise here. It is clear that the underwriter did not know of the owner's refusal to submit to the survey. It is said, indeed, that as the plaintiff had given notice to the agent of Lloyd's at Liverpool that he would not have the vessel surveyed, this was sufficient to affect the underwriter with knowledge. I cannot concur in this view, as it appears that in the discharge of his duty the surveyor would communicate the fact of the refusal, not to the subscribers, but to the committee alone, who, again, do not communicate the fact to the subscribers until they have actually caused the vessel to be degraded from her class. The underwriter would therefore have neither actual knowledge, nor the means of knowledge, from the report made by the surveyor to the committee of Lloyd's. The question whether the case comes within the second branch of the proposition to which I have referred is one of the greatest difficulty. The date of the building of the ship being stated in the register, which the underwriter had before him, he might have seen, had he reflected, that half the time for which she was originally classed had expired; and, the letters "H. T." not appearing against the ship, he might have inferred that the necessary survey had not been had, and that, consequently, the ship would now be degraded from her former class. I should feel the force of this argument if vessels were uniformly degraded unless surveyed on the expiration of half time; but such, it is admitted, is not uniformly the practice. While it is competent to the local surveyor to call on the shipowner, on the expiration of the half time, to submit to a survey, as the condition of the vessel keeping her class, it appears that this is by no means uniformly done, and that vessels are suffered to remain as of their former class, though the half time has expired and no fresh survey has been held. I think, therefore, that the underwriterthough, if his attention had been called to the ship's age, he might have seen that the half time had expired, and from the absence of the letters "H. T." might have inferred that no survey had been held on her-must not be taken to have been bound to infer that the owner had refused to have her surveyed. Adhering to what I said in Bates v. Hewitt, that where a fact is "matter of inference, and the materials for informing the mind of the underwriter are common to both parties," both may be left to draw their own inferences, I am reluctant to apply that principle to a case like the present, where a material fact is matter of positive knowledge to the party proposing the insurance, and only matter of possible inference, from very

Q. B.]

imperfect materials, to the underwriter. It must never be forgotten that insurance is a contract in which uberrima fides is required, and that the assured is bound to disclose every material fact known to him and unknown to the insurer, unless he is justified in believing such fact to be known to the latter. The plaintiff knew he had refused to have his vessel surveyed, and that her degradation must necessarily follow. It does not appear to me that the circumstances were such as to warrant the conclusion that the underwriter knew, or ought necessarily to know, that the survey had been declined. I think the doctrine in Bates v. Hewitt goes quite far enough for the protection of the assured, and I should be unwilling to extend it to a case like the present. I quite concur in thinking that there was no misdirection on the part of the learned judge on the trial, and that he was quite right in not withdrawing the case from the jury; but I am of opinion that the facts do not warrant the findings of the jury; and I should myself have thought it right to send the case down to a new trial; but my learned brothers think differently, and the rule must therefore be discharged.

Rule discharged.

Defendant obtained an order for a special jury, but when the trial came on sufficient special jurors were not present, and neither party prayed a tales. When the trial came on a second time, defendant obtained a verdict.

The practice of the court under such circumstances is to allow the costs of the first trial to the successful party on the second.

THIS cause came on for trial at the Oxford Summer Assizes 1870. The defendant had obtained an order for a special jury, but seven special jurors only attended. Neither plaintiff nor defendant would pray a tales, and the trial went off. At the spring assizes of this year, the action was tried and resulted in a verdict for the defendant. The master had allowed the defendant the cost of the first trial, and Byles, J. had affirmed his order. A rule had been obtained to rescind this judge's order and to review the taxation; two of the masters had been desired to report upon the practice of the court in such a case, and the following report of Masters Hodgson and Unthank was now read: “We think the practice in this court is to allow the costs in such a case as this to the successful party as costs in the cause, and not as the costs of the day."

J. O. Griffits appeared to show cause against the rule, but the court called upon

Dowdeswell, Q. C. for the plaintiff. The failure of the first trial was the fault of both sides; therefore the costs were thrown away, and ought not to be imposed upon either party. The case of Wood v. Duncan (5 M. & W. 87) was upon an award which was afterwards set aside on the ground that all the matters referred had not been adjudicated.

[Q. B.

The case then came on for trial, and it was held that the successful party was not entitled to the costs of the first trial. The rule is the same when upon a first trial the jury are discharged without a verdict: Bostock v. North Staffordshire Railway Company, 21 L. J. 384, Q.B.;

Wall v. London and South-Western Railway Company, 11 Ex. 696.

[Master Smith referred the Court to Seely v. Powers (3 Dowl. 372), the authority upon which the two previous cases were decided.]

The COURT (Cockburn, C. J., Blackburn and Mellor, JJ.) declined to disturb the practice of the Rule discharged.

court.

STIMSON v. FARNHAM.

Sheriff-False return-Estoppel-Damage to
execution creditor.

A sheriff returned to a writ of fi. fa. that he had seized the goods of the execution debtor, and kept them safe in his possession until he received an order from the creditor's attorney to withdraw; whereupon he withdrew.

In defence to an action for a false_return_ by the execution creditor, the sheriff proved that the only goods which the debtor appeared to have had been assigned by a valid bill of sale, and that no damage had occurred to the plaintiff in consequence of the

return:

Held, that the verdict was properly entered for the defendant.

THIS was an action against the sheriff of Leicestershire for a false return; it was tried in Middlesex before Mellor, J., and a verdict was found for the defendant; leave was reserved to move the court to enter a verdict of 771. for the plaintiff.

The plaintiff had obtained a judgment for 771. against one Henry Follows, and a writ of fi. fa. had been issued and directed to the sheriff of Leicestershire, the defendant in this action.

The following was the sheriff's return, upon which the action was brought:

The declaration alleged that the sheriff wrongfully neglected to levy upon the goods of Follows, and that the return, which was set out in the declaration, was false.

The defendant pleaded, first, not guilty; secondly, except as to the claim in respect of the return, that there were not at or after the delivery of the said writ to him any goods or chattels of the said Henry Follows within the said bailiwick of the defendant, and that the defendant could not and ought not to have levied the moneys and interest indorsed on the said writ or any part thereof as alleged; thirdly, to the whole declaration, that after the delivery of the said writ to him, the defendant seized the said goods and chattels by virtue of the said writ, and kept possession thereof under the said writ until the 19th Sept. 1870, on which day, before the committing of any part of the alleged grievance, and

before he had been guilty of any breach of duty, plaintiff, by John Wilkinson Smith, his attorney, ordered the defendant to withdraw from possession of the said goods and chattels; whereupon he did, in obedience to the said order, withdraw from possession of the said goods and chattels, and make the return in the declaration complained of.

At the trial, in spite of the protest of the plaintiff, the defendant set up the second plea, and called evidence to show, not that the return was true, but that the only goods which Follows appeared to have in his bailiwick had been assigned under a bill of sale. The only question left for the jury was whether this assignment by bill of sale was valid, and they found by their verdict that it

Tras.

On the 6th May last plaintiff obtained a rule nisi, calling upon the defendant to show cause why the verdict obtained in this cause should not be set aside, and a verdict entered for plaintiff for 771. instead thereof, pursuant to leave reserved by the learned judge on the ground that the defendant was concluded by his return.

Mundell, Q.C. and Abbott showed cause.-. -A distinction is drawn in Mayne's Law of Damages, p. 4, between what are called absolute and relative rights. An instance given of the latter is "the right which every man has to the services of a public officer. It is the duty of a sheriff to make a true return to a writ directed to him, and to arrest a debtor on mesne process. But this duty is only imposed upon him for the benefit of the creditor; and if he can absolutely negative the possibility of any advantage accruing to the latter from the performance of his duty, the plaintiff will not even be entitled to nominal damages." Williams v. Mostyn (4 M. & W. 145) was an action against a sheriff for an escape; no actual damage to the plaintiff or delay in his suit was proved, and therefore it was held that the action was not maintainable. The case of Wylie v. Birch (4 Q. B. 566) is almost on all fours with the present; there certain pleas to an action for a false return were held good upon special demurrer, on the ground that they negatived the suggestion of damage arising upon the defendant's admitted breach of duty. Remmett v. Lawrence (15 Q. B. 1004) is an authority that a sheriff may prove, upon a return that he had seized the debtor's goods at the suit of another creditor, that he was mistaken in dealing at all with the goods as belonging to the debtor. Although Lord Campbell said (p. 1010) if the defendant "had returned that he had taken Webb's (the execution debtor's) goods, and had them in his hands for want of buyers, he would have been estopped from denying that the goods were Webb's," it was a mere obiter dictum. This remark was considered by the Court of Common Pleas in Levy v. Hale (29 Ľ. J. 127, C. P.), and Williams, J. is reported to have remarked (p. 130), that “it is too strong to say that there is no authority in favour of what Lord Campbell says in Remmett v. Lawrence." The cases, however, to which he refers as authority, do not bear out Lord Campbell's dictum. There was in this case no infringement of duty on the sheriff's part, for by the finding of the jury he could not possibly have obtained the money he was directed to levy. [COCKBURN, C. J.That is not the question so much as whether he is estopped by his return from saying that he could not levy.] This does not come within the rule of estoppel as laid down by Lord Denman in Pickard

[Q. B.

v. Sears (6 A. & E. 475); there must be not only a wilful misrepresentation, but also an inducement to act upon the belief caused by the misrepresentation, so as to alter the previous position of the person deceived: (Notes to Duchess of Kingston's Case, 2 Sm. L. C. 769, 6th edit.) Here there is no alteration in the plaintiff's position in consequence of the false return.

Field, Q. C. and J. W. Mellor, in support of the rule. This is exactly a case which Lord Campbell distinguishes from those decided by Remmett v. Lawrence, and is precisely analogous to a false return of fi. fa. when the debtor has assigned his goods in bankruptcy. This return was a deliberate act of the sheriff, for which he ought to be responsible. He might have returned nulla bona, or have interpleaded, if he had not been negligent in obtaining proper information. He did neither, but returned what he admits to be false:

Field v. Smith, 2 M. & W. 388.
Standish v. Ross, 3 Ex. 527.

COCKBURN, C. J.-I am of opinion that this rule should be discharged. The action is for a tort by the sheriff in making a return which is, in one sense, false. The rule with respect to an action against a sheriff is, that there must be not only a wrongful act on the sheriff's part, but also damage to the plaintiff, in order to sustain the action; the object of the rule being that the defendant may stay proceedings by payment. The question for us is whether that rule applies to this case. The authority relied on by the plaintiff, who contends that it does not apply, is a dictum of Lord Campbell in Remmett v. Lawrence; it was an obiter dictum, based upon no cited authority, and notwithstanding the respect which that learned judge's remarks always merit, need not have demanded much attention, were it not that some authorities were quoted in support of it by Williams, J., in the case of Levy v. Hale. The first case quoted as an authority was Mildmay v. Smith (2 Wms. Saunders, edit. of 1871, p. 739); "If a sheriff suffers goods under an execution, and returned by him to be of such a value, to be rescued out of his hands, a scire facias lies to have execution against him of the money according to the value returned." The other case quoted was Clerk v. Withers (2 Lord Raymond, 1072), in which Lord Holt said, p. 1075: "The sheriff is answerable for the value of the goods, after he has seized them, and he is bound to sell them at all events, and he is bound to the value he has returned them to be of. And though the goods are lost or rescued from him, he is bound, not to that value they may after appear, or be found to be of, but to the value he returned them to be of: that is the value he is bound to, and an action of debt lies against him for that value." Neither of these cases, however, is an authority for Lord Campbell's dictum in Remmett v. Lawrence; that case was an action for a false return, to the effect that the sheriff had seized the goods and chattels of Webb, the debtor, by virtue of a previous writ at the suit of another creditor; it was proved that the judgment upon which the previous writ issued and the defendant made the seizure was fraudulent, and also that the goods then seized did not belong to Webb. Upon the latter finding the verdict was entered for the defendant. Lord Campbell, in re. fusing to set aside the verdict, said: "The main question here is whether the sheriff was estopped by having returned that he had taken the goods of

C. P.]

Webb. Now if he had returned that he had taken Webb's goods, and had them in his hands for want of buyers, he would have been estopped from denying that the goods were Webb's. But that he does not return: he makes an argumentative return of nulla bona, and gives as an excuse that he had seized the goods of Webb at the suit of Lowndes. That does not estop him from showing that he was mistaken in dealing at all with the goods as belonging to Webb; there is a clear distinction between an excuse like this, and a return that the sheriff holds the goods of the execution debtor." The two authorities cited by Williams, J. certainly do not bear out the distinction drawn by Lord Campbell, and they do not apply either to that case or to the present. I know of none which go farther in support of Lord Campbell's dictum than those two; and as they fail altogether to confirm it, I think we are justified in holding that the sheriff was not estopped from proving his second plea by his return to the writ. This being so, the general rule with respect to this action applies. Here it was clear that no damage was sustained by the plaintiff as soon as it was established that the bill of sale was valid. It may be that the sheriff was blameable for making this return, but we have not to consider that question. The rule will be discharged.

BLACKBURN, J.-I am of the same opinion. The rule must be discharged on the ground that no damage to the plaintiff has been established. The only contention against the application of this general rule was, that the sheriff was estopped by his return from producing evidence to support the plea of nulla bona. But how was it shown that he was estopped? Generally a statement is evidence against a man who sets up a defence inconsistent with it; but it is not conclusive against him unless the position of the person to whom it was made is altered in consequence. I do not see anything here to bring the present case within the rule as to estoppel. With regard to authorities, the only one which the plaintiff can claim is the dictum of Lord Campbell, which did not apply to the case before him, and which is not supported by the cases mentioned in Levy v. Hale. MELLOR, J.—I am of the same opinion. Rule discharged. Attorney for plaintiff, Jeremiah Briggs. Attorneys for defendant, Preston and Robinson.

[C. P.

for a qualification under the Reform Act 1832. The nature of the qualification was described in the list as a dwelling-house." He was thus entitled to a vote under the Reform Act, but not under the Representation of the People

Act.

He was accordingly objected to, on the ground that a description of the nature of a qualification dwelling-house" under the Representation of the People Act could not confer a vote under the Reform Act.

The revising barrister struck out the word "dwelling." Held, per Willes, Keating, and Collier, JJ. (dissen

tiente, Brett, J.), that the revising barrister was right in allowing the vote, although it was unnecessary to strike out the word "dwelling."

Per Brett, J., that the 3rd section of the Representation of the People Act has given a new qualification, and that, as the error was in the nature of the qualification, the revising barrister ought not to have amended.

Ar a court held at Marylebone, for the purpose of revising a list of the voters for that borough, the vote of James Blackman was duly objected to. The case stated that

1. James Blackman had occupied, jointly with another person, the premises in respect of which his name had been inserted by the overseers of the said parish in the list of persons entitled to vote in the election of members to serve in Parliament for the said borough of Marylebone.

2. The said James Blackman had so occupied the said premises during the twelve calendar months next previous to the last day of July last; had been rated in respect of the said premises for all rates for the relief of the poor in the said parish made during the time of his occupation; had duly paid all the poor rates and assessed taxes which had become payable from him in respect of such premises previously to the 6th April then next preceding, and had resided for six calendar months next previous to the last day of July last, within the said borough.

3. The clear yearly value of the said premises so occupied by the said James Blackman and another, was of an amount which, when divided by the number of the joint occupiers of the said premises, gave a sum of much more than ten pounds for each such occupier.

4. In the said parish of St. Marylebone the overseers make out only one list of all persons entitled to vote in the election of members to serve in Parliament for each borough, including in such list as well those entitled to vote in respect of the occupation of premises of the clear yearly value of not less than 107., under 2 Will. 4, c. 45, as those entitled to vote as inhabitant occupiers, as owners or tenants of any dwelling-house within the said borough, under the Representation of the People Act 1867.

5. In the list so made out by the said overseers, the qualification in respect of which the name of James Blackman was inserted in the list was described in the third column as a dwelling-house; the house in fact was originally constructed, and is now used, as a shop, with dwelling rooms

above.

6. The names of thirty-three other persons, whose names, together with that of the said James Blackman, are set out in schedule hereunto attached, were objected to under, similar circumstances.

C. P.]

7. It was objected that inasmuch as the qualification, in respect of which the name of James Blackman had been inserted in the list, as made out by the said overseers, was described as a "dwelling house," his title to have his name inserted in such list could only be under the 3rd section of the Representation of the People Act 1867, and as it was by that section provided that no man should under that section be entitled to be registered as a voter by reason of his being a joint occupier of any dwelling house, that therefore the said James Blackman was not entitled to have his name inserted in the said list. The barrister held that if the nature of the qualification was insufficiently described, he had power to amend the description of the qualification for the purpose of more accurately defining the same, and he did so by substituting "house" for "dwelling house" as the nature of the qualification, and retained the name of the said James Blackman and of the said thirtythree other persons in the said list, and he ordered the appeals in all the above mentioned cases to be consolidated.

The question upon which the judgment of the court is requested is whether or not the said barrister did or did not rightly decide that the said James Blackman and the said thirty-three other persons whose names are set out in the schedule hereto were entitled to have their names inserted in the register of voters for the said borough of Marylebone. If the court be of opinion that his decision was wrong, the names of the said James Blackman and the said thirty-three other persons are to be removed from the register of voters for the said borough of Marylebone.

Gorst for the appellant. The claimant was an occupier of sufficient value if the nature of the qualification had been "house" instead of "dwelling house." The term "dwelling house" appears for the first time in the 3rd section of the Representation of the People Act, and it is there stated in the proviso to the section, that no man shall have a vote by reason of his being a joint occupier of any dwelling house. I do not deny that he might still vote as a joint occupier for the same premises, had they been properly described, but the proviso to the 3rd section takes away his right to vote as a joint occupier for a dwelling house. The 6 Vict. c. 18, s. 40 does not give the barrister a power to amend unless the qualification is sufficiently described. There is nothing in the case to show whether the claimant resided in the house or elsewhere. If he claims under the old Act it is immaterial whether he resides in the house; but that is not so under the Representation of the People Act. The 56th section shows that the new franchise is to be in addition to any old franchise and this Act is to be construed as far as it goes with the old Acts; it also says that the forms shall be as they were formerly. The case is the same as if the proviso to the 3rd section had been written into the Reform Act 1832 (2 Will. 4, c. 45).

No counsel appeared to represent the respondent.

WILLES J.-I am of opinion that the revising barrister was right in allowing the franchise, although it is unnecessary to say whether the precise course he took in turning dwelling-house into house was right. The claim in respect of a dwelling-house was sufficiently made by showing

[C. P.

that the person claiming the franchise was entitled to a dwelling-house in fact, coupled with the proof that that which he described as a dwelling-house fell within the requirements of the Act of 1832, or within the conditions to be fulfilled in the Representation of the People Act as a dwelling-house. The Act of 1832 gave the right to vote as to a house, notwithstanding the number of terms, such as warehouse, counting-house, shop, which were coupled with it. You have there a house containing a dwelling-house, and a house which is not a dwelling-house, and if it had been necessary to state the qualification more fully, the answer would be in the description of the house --viz., a dwellinghouse. If the objection was made out under the Act of 1832, the claimant could show he had a dwelling-house; then, having established it as a house and as a dwelling-house, he could show that the conditions of the Act of 1832 had been complied with, and that the house was of sufficient value to give him the franchise under the 29th section of that Act. Matters so standing, the Representation of the People Act was passed to enlarge the franchise, and assist voters who had previously been excluded. If the argument of counsel be correct, what would be the effect of that Act? Why, of defeating a claim to the franchise which would be good under the Act of 1832, and the reduction of the franchise would absolutely defeat the vote. He further argues that the Representation of the People Act gives a new franchise in respect of a dwelling house, and that a claim to a dwelling house means a claim to a dwelling house under the Act of 1867, and excepts the claim under the Act of 1832, and that sect. 29 of the Act of 1832 should be read with the proviso in the Act of 1867. But the answer to his argument lies in the fact that the claim is not obliged to be made under the Representation of the People Act; but the claim may be made in respect of a dwelling house under the 27th and 29th sections of the Reform Act 1832, or under the Representation of the People Act. It is merely an expansion of the franchise in respect of a dwelling house, and the claim is as formerly. He may claim under either Act; if he fails under the latter, he may claim under the former, or vice versa, for the nature of the qualification and the description are the same. I reject the notion that the Representation of the People Act indirectly takes away any right the claimant would have had under the Reform Act of 1832. I think the revising barrister was right on the whole, but that no amendment was necessary.

KEATING, J.-The Representation of the People Act in terms leaves untouched the franchise under the old Reform Acts. It is conceded that under the old Act he might have proved, and have a vote; but it is said the Representation of the People Act does away with that, because it gives the franchise to a quality of dwelling house which would not have had the franchise before. If so, it would be a strange result, and one I should be sorry to agree to, unless under very great pressure. I think no amendment was required.

BRETT, J.-I regret that I cannot come to the same conclusion as the rest of the court in this case, and as the parties are entitled to my opinion I give it accordingly, and state that I think the revising barrister was wrong. The qualification described was in the third column, which states the nature of the qualification, and there it was described as a dwelling-house. Under the old Reform