CHAN.] ATTORNEY-General v. COMPANY OF PROPRIETORS OF THE BRADFORD CANAL. [V.C. W. sorily, or in such other manner as the court might | the liquidators were persons not likely to do their direct. When the petition came on for hearing, duty fairly and properly; and of course, in orderunder the latter part of the prayer, it was asked ing this company to be voluntarily wound-up, he that the company might be wound-up voluntarily would be reluctant that such should be the case; under the supervision of the court, but this was but he could not believe it to be as alleged, opposed by the Alliance Bank, which was a creditor merely because they were nominated by those for 92004. It seemed that subsequently to the peti- asking for a voluntary winding-up that theretion, on the 28th July, an extraordinary general fore they would not discharge their duty faithmeeting was held, at which shareholders repre- fully. The order of the V. C. would be discharged, senting 29,175 shares out of 56,393 were and an order made for a voluntary winding-up present, and resolutions were passed that the bank under the supervision of the court. Mr. Cooper to might be wound-up under the supervision of the be appointed official liquidator, and Mr. Chaytor to court. The argument in favour of a voluntary attend on behalf of the creditors. Costs of all winding-up was supported by an affidavit of the parties out of the estate. manager, which was filed on the 16th July, purporting to represent eighteen creditors of the bank, whose debts amounted to 236,000l. At the hearing the V. C. observed, that he concurred in the view taken by the M. R., that the scheme of the late Act was to give to all persons interested in the assets of a company the first right to be heard according to their positions before the court, as to the mode in which the property should be dealt with, because, in fact, it was theirs. A like rule had been adopted in bankruptcy in the case of the Imperial Mercantile Credit Association, where a large majority of contributories were in favour of a voluntary winding-up, and all the creditors were in unison with them. The 149th section of the Act gave the court power to accede to the wishes of the majority, and therefore his Honour felt no hesitation in acting upon that principle. If a majority of creditors had opposed the contention of the Alliance Bank, he would have attended to their wishes. The only question was as to further time. Two months had elapsed and no meeting had been called, nor any communication made with some of the contributories, and the Alliance Bank had had no opportunity of being present. No doubt the court could order a meeting, but it thought the matter ought to be disposed of at once, as the creditors were only eighteen in number, and the Alliance Bank and others wished a compulsory winding-up. Moreover, the circumstances under which the business was handed over to a company, who in the same year became insolvent, were peculiar and required investigation. The V. C. therefore ordered a compulsory winding-up. This order was now appealed from. It appeared that before the appeal came on to be heard all the creditors who had opposed the voluntary windingup, and all the shareholders but three, who held between them 700 shares, had withdrawn their opposition. Dickinson, Q. C. and Little, on behalf of the directors, submitted that a voluntary winding-up under the supervision of the court was applicable to such a case. De Gex, Q. C. and Roxburgh opposed.-The company was based upon the ashes of three ruined companies, and after an existence of five months, the whole capital being gone, there was a deficiency of 89,0004, and the liquidators were the chairman, the auditor (Mr. Cannan), and another person. Under these circumstances the winding-up ought to be compulsory. E. K. Karslake and Roberts for creditors. The LORD CHANCELLOR (without hearing a reply) said he entertained the opinion that, if the V. C. had had all the circumstances before him, he would have ordered a voluntary winding-up under supervision; but he thought that an independent person ought to be appointed as liquidator instead of Mr. Cannan, and he would appoint Mr. Cooper, who had been proposed by the directors. It was suggested that Solicitors: Uptons, Johnson, and Upton; Crosley, and Burn; Worthington and Plunket; Travers Smith, and De Gex.. V. C. WOOD'S COURT. Reported by W. H. BENNET and R. T. BOULT, Esqrs.. Barristers-at-Law. March 13, 14, and 16. ATTORNEY-GENERAL V. THE COMPANY OF PROPRIETORS OF THE BRADFORD CANAL. Nuisance-Injunction-Pollution of water Appeal to an indictment-Laches. Canal A company and its lessees had been indicted at common law for a nuisance, and the lessees had been found guilty, but had thereupon entered an appeal. Upon an injunction filed against the company and its lessees for an injunction to restrain and abate the same nuisance, the company insisted upon their right to use certain water as flowing into their canal, although polluted and a public nuisance : Held, that, the court conceiving that the decision at law was correct, the fact of an appeal being lodged was no bar to the court granting an injunction. The company, by their answer, stated that they might at the expiration of their lessees' demise continue the nuisance: Bradford Beck is the principal stream of water flowing through the town of Bradford in Yorkshire. By an Act of the 11 Geo. a company was incorporated to make a navigable cut or canal from a Liverpool Canal at a place called Windhill, about bridge called Hoppy Bridge to join the Leeds and three miles off, and to supply the canal with water from such springs, soughs, brooks, drains, streams, and watercourses running into a brook called Bowling Mill Beck as should be found within the distance of 2000 yards of Hoppy Bridge. This Bowling Mill Beck unites with Bradford Beck above mentioned at a point about 350 yards above Hoppy Bridge. At the head of the canal a reservoir or basin was made, into which supplies of water are brought for the purposes of navigation. The canal was opened in 1774. The company had erected before 1802 a dam across the Bradford Beck, and made upon the stones of the dam a culvert out of the beck into the reservoir or basin before mentioned, and had ever since diverted the water, as they required it, into this reservoir or basin. V.C. W.] ATTORNEY-GENERAL v. COMPANY OF PROPRIETORS OF THE BRADFORD CANAL. At this time the canal passed through open fields, but of late years great numbers of private houses had been erected in roads running in the same direction as the canal, at distances from it of about 100 up to 600 yards. The present information was filed by the AttorneyGeneral at the relation of certain persons, tradesmen and inhabitants of Bradford, and one a shareholder in the company, against the Company of Proprietors of the Bradford Navigation, for an injunction to restrain the company and their lessees, Crowther and Dixon, "from diverting into their canal, or allowing to pass into the same, or collecting, or keeping, or continuing therein any filth, sewage, or polluted matter or water, so as to be a public nuisance." In Aug. 1864, an indictment had been preferred at the Leeds Assizes against the defts. the company, and their said lessees, for the same alleged nuisance. The indictment was removed by certiorari and came on for hearing at the Spring Assizes at Leeds in March 1865, and a verdict for the Crown returned by consent, subject to a special case for the court above. This was argued on the 10th June, and judgment directed to be entered up for the Crown against Crowther and Dixon, who had given notice of appeal. They had been indemnified in these proceedings by the company. The information alleged that during the last thirty or forty years, the town of Bradford had greatly increased in the neighbourhood of the Bowling Mill Beck and Bradford Beck, and a great number of drains or sewers had been made to empty themselves into these two streams, so that the water with which the canal was supplied, originally free from any serious impurity, was now extremely impure and loaded with foul and feculent matter, and that Bradford Beck, the point where the water was turned from it into the canal, was an open sewer. That Bradford Beck itself was a rapid fall, and after much rain was flooded, so that although the water was impure, no deposit of an offensive kind took place. That the water in the canal, on the other hand, was for all practical purposes stagnant, and as there was no flow of water, a deposit of mud, composed chiefly of sewage, had been formed, which had had the effect of giving up unwholesome and offensive gases and smells, particularly when disturbed by the passing of the canal boats and craft. The lease under which the defts. the lessees held from the company would expire in April 1866. The information was filed on the 21st June 1865. An interim injunction had been thereupon granted upon an undertaking by defts. to cleanse the reservoir or basin of the canal from time to time by means of flushing it. The defts., the company, put in their answer in Nov. 1865, by which they in effect admitted the allegations of the information as to the impurity of the water in the canal, and they insisted that the company were entitled to use the water of the Bradford Beck for supplying their canal, and that without regard to such water being so foul as that when so used it created a public nuisance, and that such nuisance was legalised by the Act of Parliament incorporating the company, and they thought it probable that the company would continue to supply the canal with the water from the Bradford Beck upon the expiration of the lease granted by them. They also insisted that the corporation of Brad ford were bound to cleanse the Bradford Beck. The other facts of the case and the arguments of counsel are stated in the judgment. The Attorney-General (Sir Roundell Palmer), G. M. Giffard, Q. C., and H. Cadman Jones, for he information, stated the facts of the case. [V.C. W. Rolt, Q. C., Amphlett, Q. C., and John Pearson, for the defts., made many points, all commented upon by the V.C., and cited Durell v. Pritchard, on app. 1 Law Rep. Ch. 244; Deere v. Guest, 1 Myl. & Cr. 516; Swaine v. Great Northern Railway Company, 3 New Attorney-General v. Sheffield Gas Consumers Com- 692. The Attorney-General, in reply, referred to March 16.-The VICE-CHANCELLOR now gave V.C. W.] ATTORNEY-GENERAL v. COMPANY OF Proprietors of the BRADFORD CANAL. [V.C. W. he had some doubt of the justice of the decision. | canal a worse nuisance still will be created, because A strong case had been before him in Betts' case, the whole of this filth will then be thrown into the when he granted an interlocutory injunction. The beck. That may or may not be the case; if it is, decision of the Q. B. (1 El. & E. 990) was against it may afford a ground for prosecuting those who do the view which he had there taken, and he felt such the act complained of. He was by no means satisa strong doubt of the propriety of the decision that fied that the nuisance in the beck was so great as he had ventured to grant an interlocutory injunc- in the canal, for the course of the beck is certion, but the decision of the Ex. Ch. being also tainly more rapid. The witness Beardmore says against his view (Ib. 1020) he had felt himself there are rapids in the stream; though he admits, bound to dissolve the injunction. Then the H. of on the other hand, that there are holes and L. (10 H. of L. Cas. 117) ultimately decided accord- pools in the beck, where a nuisance accumuing to his view which he had originally taken, so lates. It may be said that the persons who are that Mr. Betts unfortunately lost all the benefit annoyed by this nuisance in the canal will not which he might have had from the injunction, in be annoyed by the eddies and pools in the stream. consequence of the intermediate decision of the He could not say how that would be, but it was quite Ex. Ch. The chief defence in this case has been enough to say that the persons who are represented this: "We are not the persons who create this by the Attorney-General are annoyed, and as they nuisance: somebody else creates it by fouling the have made out the annoyance, he could not stop to water; the water comes to us foul; we only go on inquire if any other persons may be annoyed by these using that which has come to us for seventy years eddies and pools. Nor did he think it ought to interpast, and it is fouled through no fault of ours." fere with his decision if it were shown that there would That is not a sound view of the case. He could be some annoyance felt from the fact of a larger quite understand, if this had been a case in which quantity of this offensive matter being sent down a company had power to cut a channel for the the beck. That is an argument which might be purpose of drawing water from a given river, and then presented in every case where there are several evils the channels so cut were made navigable, and the assailing those who complain. It would be impossible company had no further control over it, that it for the court to wait till bills were filed in those might have been said that the company were not cases, and be governed to some extent by the decianswerable for doing an illegal act. But here the sions of those other cases. During the whole of the only authority which the Act of Parliament gives argument it had appeared to him that there was them is to draw water; it does not say they are to only one point that required much consideration, draw foul or filthy water, or that they were to draw and that was the question of delay. It was said all these nuisances into the canal. They have the that the public have submitted to this evil for about sole control over the flow of the water into the ten years, and during that time they have allowed canal; and if, as was put by the Attorney-General the company to go on drawing the water. If they in his opening, it was found that the water became had interfered earlier, the company might have so foul with filth and sand as to block up the canal, limited their capital; they might have seen what they would not let it into their canal at all. In that difficulties they would have to encounter. It was state of things a court of law has said the lessees have said that barges and boats have been built, and created a nuisance, for which they have become indict- stock and capital procured upon the faith of no able, for which they have in fact been found guilty. interference taking place. It might have been The four judges have concurred in that, and he did added that persons have bought shares in the not find sufficient ground for doubting the decision undertaking upon the faith that having been allowed to say that he ought to hold his hand in granting to go on for ten years doing this they would never be an injunction. Then there were other grounds interfered with. Now he did not doubt that there may alleged, amongst which was this: it is said be cases, such as Lord Eldon put in the case of the that the case having been tried at common law, Attorney-General v. Johnson, in which laches might there is no reason at all for this court to interfere. be imputed to the public through the medium of the And it is further said, as part of that reasoning, Attorney-General, cases of large expenditure that the court of common law will regard this fact incurred in buildings which are seen by the public, that, after all, the company are innocent parties; and are allowed to go on without the slightest comthey are guilty, no doubt, in the sense of allowing plaint on the part of anyone. Of course such cases foul water to flow in; but they are not the parties as those might afford very good ground for saying who create the evil; they cannot themselves cleanse that the public, like other people, should not have or take steps for cleansing the beck, therefore they allowed that expenditure to be incurred, and afterought not to be attacked; and when brought up for wards to have come forward and complain of the judgment, that will be considered, and a very slight invasion of rights which they might have asserted fine will be inflicted upon them. And, by parity of earlier. But the case here is of a totally different reasoning, it is said that a court of equity should description. It has been described in the defts.' see that the proper persons to be sued are those who evidence as a gradual and growing evil. The comare guilty of bringing the pollution into the beck, pany are not sought to be restrained from using and ought not to restrain the defts. But he could not their canal. The Legislature and the parties both admit that answer. It might be urged that, in cases desire that the canal should be kept open, but it is like Tipping's case and others, in which a person not desired that any nuisance should be created to is annoyed with a number of nuisances, if the other persons by dirty water being used for that plt. cannot trace a specific grievance to the person purpose. His decision in the Kingston case, whom he is suing, as in Wood v. Sutcliffe, he cannot 11 Jur. N. S. 596, had been pressed upon be relieved. Lord Cranworth, in Wood v. Sutcliffe, him. It is said, "A person is complained of seems to have thought this: "You have not shown if he comes too soon, and if he delays coming any special grievance; you cannot satisfy me he is said to be guilty of laches." Now that that, if I grant the injunction to-day, you will in cases of this kind persons are obliged to wait for be one whit the better off to-morrow; and the evil a considerable time before it can be ascertained that which this gentleman is doing, as compared with a case has arisen for them to put themselves in others, is so trifling, that I cannot see my way motion and come to the court, is an argument to grant an injunction." But he thought the which certainly applies more reasonably to the present case fell far short of anything of that kind. general public whose interests are to be protected, The defts. say that, if the canal is a nuisance, the than to a single individual who may file a bill in beck is a greater nuisance, and that by stopping the this court as soon as he is aggrieved. The public KIDSTONE v. THE EMPIRE MARINE INSURANCE COMPANY. to V.C. W.] wait, no doubt, for a certain time to see whether the evil will diminish. In this instance they waited to see whether it might not be diminished by a certain state of the weather, when the flush of the stream came in, and then there came these two hot summers, when the evil became intolerable, and led to the litigation. Now, is it an answer to that to say, that money has been spent upon the faith of its going on? He could not concur that such an answer could be given to a case of that description, or that a defence founded on their faith in being allowed to continue the nuisance can be supported. The only argument which remains is that which was suggested by the company that the suit ought not to have been brought against them, but against their lessees. It appears that the lease will expire in the month of April, and that the lessees having been indicted, the company have indemnified their lessees in the indictment, and are about The company indemnify them in the appeal. take the whole themselves. case upon [The V. C. here again referred to the passages in the company's answer before stated.] That is wholly independent of what has been done by their lessees. They do not threaten to continue the nuisance, but they say that very probably they will continue it. The only point is this: the company may say, if the decision of the Court of Q. B. should be affirmed, it having been decided against the lessees only, this court must wait until another indictment is brought against themselves. It certainly is true that the indictment was preferred against the company, as well as against the lessees, but in his view of the case it could not possibly have been sustained against the company; the principle of the decision is, that the lessees having the whole thing under their control were answerable for drawing that foul water into the canal. How could the company be answerable for that, not having done it? The estate is out of the company during the lease; they have no authority, they have parted with it to their lessees, and the lessees are the people who are properly indicted. But he thought that as in their answer the company say they insist upon the right, that is a strong reason to induce the court to say that they shall be liable to the injunction. Then the only question is with regard to the time. He did not agree with the Attorney-General as to the length of time to be given. In a case of this magnitude he should not be justified in giving the time with a view solely to the appeal; but he did feel this, that what was to be done must require a considerable time to do, and that, therefore, a considerable time should be allowed. And then the question of delay has its weight; undoubtedly those who have been delayed, have not excluded themselves from the remedy. They have been delayed several years in taking the steps they now have successfully taken. Still, upon the ground of the consideration which the court always has, in cases where a good deal of time must necessarily elapse to enable the parties to comply with an injunction without being put to grievance, annoyance, and expense, he thought the right course to take was this, to grant a perpetual injunction in the terms of the first paragraph of the prayer of the information, from diverting into the canal, or collecting, or keeping, or continuing therein, any filth or polluted matter or water so as to be a public nuisance; the order not to take effect until the fourth day of Michaelmas Term, with liberty to any of the parties to apply; and the interlocutory order as to flushing the canal within certain specified times to be continued. The costs of the suit to be paid by the defts. Decree accordingly. Solicitors: Field, Roscoe, and Co.; C. Evans, for Hailstone and Co., Bradford. Common Law Courts. [C. P. COURT OF COMMON PLEAS. Reported by W. MAYD and W. GRAHAM, Esqrs., Barristers-at-Law. Jan. 29 and 30 and May 8. KIDSTONE v. THE EMPIRE MARINE INSURANCE Marine insurance company-Construction of policy. The present action was brought on a policy of insur- "Free Held, first, that the expenses incurred were within the clause; secondly, that the occasion upon which they were incurred was such as to be within it; and thirdly, that the application of the suing and labouring clause was not excluded by the warranty against particular average. This was a rule calling on the plt. to show cause why the verdict found for him at the trial should not be set aside and entered for the deft. The facts of the case are sufficiently set out in the judgment. Edward James, Q. C. and Honyman showed cause. Mellish, Q. C. and Cohen appeared in support of the rule. the The following cases were cited in the course of argument: Mount v. Harrison, 4 Bing. 388; Stuart v. Steele, 5 Sco. N. R. 927; Farnmouth v. Hyde, 34 L. J. 207, C. P.; 12 L. T. Great Indian Peninsular Railway v. Sandham, 1 Best Philpott v. Swan, 16 C. B., N. S., 772; 5 L. T. Rep. Vlierboom v. Chapman, 13 M. & W. 230; Emerigon, translated by Meredith, ch. 17; original Maclachlan's Arnould on Insurance, p. 789; WILLES J. now delivered the judgment of the court.-This was an action on a policy of insurance for 2000l. from South America to the United Kingdom. The vessel procured a charter from the Chinca Islands to the United Kingdom, loaded a cargo of guano there, and on going round Cape Horn suffered damage so serious that she had to put into Rio, where she was abandoned, and it must be taken for the purpose of this case, was totally lost. The cargo, however, was transhipped into another vessel C. P.] KIDSTONE v. THE EMPIRE MARINE INSURANCE COMPANY. [C. P. insured against, it is incurred in preventing the destruction of the subject-matter, for which, in the event of its loss, the underwriters must be answerable. There is, in each case, a loss or misfortune threatening the safety of the subject-matter of the insurance, and by the operation of which, unless averted by labour, that subject-matter will be imperilled, and the underwriters may become liable. As to the second head, whether the occasion upon which the expenses were incurred was such as to be within the suing and labouring clause, this depends upon the true answer to the question so thoroughly discussed in the course of the argument, namely, whether the clause ought to be limited in construction to a case where the assured abandons, or may perchance abandon, so that the expense incurred is not only in respect of a subject-matter in which the underwriters are interested, but upon property which, by the abandonment, actually becomes or may become theirs; or whether it extends to every case loss or damage, for the consequences of which the underwriters would be answerable, in warding off which labour is expended. In the former construction the clause is inapplicable to the present case; in the latter it is applicable, and the assured is entitled to contribution. The question manifestly depends upon the construction of the language of the clause; and, quite apart from the proved usages, we think the latter is the true conlabouring clause (to which in this policy is superadded an express provision as to abandonment, upon which we need only say, in passing, that it does not alter the question in favour of the underwriters) are used in the same form as must have been in common use before 1783, when Emerigon published his great work on insurance, in which, amongst the various forms of the clause used at different periods, that of the London Policy then used is given (2 Emerigon, by Boulay Paty, 239); the words are quite general, and ought to be so construed, unless some good reason is given for restraining them, that in case of any loss or misfortune it shall be lawful to sue, labour, and travel in and about the defence, safeguard, and recovery of the subject-matter, without prejudice to the insurance-not abandonment, as in the French Ordonnance hereinafter cited-the charges whereof the said company will bear in proportion to the sum hereby insured (not the amount saved, as in the French Ordonnance). Up to this point there is not a word about abandonment; and this is the whole of the usual clause. The meaning is obvious, that if an occasion should arise in which, by reason of a peril insured against, unusual labour or expense is rendered necessary to prevent a loss for which the underwriters would be answerable, and such labour and expense is incurred accordingly, the underwriters will contribute, not as part of the sum insured in case of loss or damage, because it may be that loss or damage for which they would be liable is averted by the labour bestowed, but as a contribution on their part as persons who have avoided detriment by the result in proportion to what they would have had to pay if such detriment had come to a head for want of timely care. Take for instance the case of a policy on goods warranted free of average under 5 per cent. wetted in a storm which drives the ship into a port of distress, where, by drying at an expense less than 5 per cent., the goods might be saved or damaged under 5 per cent., whilst if not dried they would decay and become damaged over 5 per cent. they existing in specie, so that freight would be payable, in this case there is no abandonment and may be no prospect of one, and yet it is manifestly the duty of the master to use all reasonable means to preserve the goods, and obviously for the interest of the underwriters to and sent home, and the chartered freight, or an amount equivalent to the chartered freight, according to the construction to be put on the matter, exceeded the expenses of transhipment, and the freight from Rio to Liverpool was received by the assured. The action was brought by the assured to recover the expenses of transhipment and forwarding. At the trial evidence was given to show that the warranty in the policy on which the question turned was not considered applicable to the circumstances. The warranty was free from particular average, from jettison, and unless the ship be stranded, sunk or burnt, neither of which happened. The evidence given was for the purpose of showing that the charges of transhipping and forwarding had been considered what was called technically particular charges, not as particular average so as to be within the warranty. The verdict passed for the plt. affirming the existence of the usage at the time when the policy was made, subject to leave reserved to the defts. to move to enter a verdict, which they accord-in which the subject of insurance is exposed to ingly did, and that rule was discussed last term before the Lord Chief Justice, my brothers Keating, Smith, and myself, when we took time to consider. At the sittings after term we discharged the rule, not stating our reasons, but promising to state them during this term, and that promise I am now about to fufil. Many points were made upon the argument of this rule, upon one of which it is only necessary to pronounce an opinion. That turned upon the construction of the suing and labouring clause instruction. The words of the ordinary suing and the policy, and it may be considered under the following heads: First, whether the expenses incurred were of a character to be within the clause; secondly, whether the occasion upon which they were incurred was such as to be within it; thirdly, whether, if such, the application of the clause is excluded by the warranty against particular average. As to the first question it was hardly disputed that the expenses incurred were of a character to be within the clause; without incurring them the subject-matter of the insurance would never have had any complete existence. They were incurred in order to earn it, and they represented so much labour beyond and besides the ordinary labour of the voyage rendered necessary for the salvation of the subject-matter of insurance by reason of a damage and loss within the scope of the policy, the immediate effect of which was that the subject-matter insured would also be lost, or rather would never come into existence, unless such labour was bestowed. As the goods lay at Rio no part of the chartered freight had accrued due and no freight even pro rata itineris could have been claimed by the shipowner. His only right in respect of chartered freight was to detain the goods for a reasonable time in order to send them on in another vessel to their destination, and then claim an amount equal to that of the chartered freight. In order to do so, labour must be used and expense incurred. It can make no difference whatever whether the shipowner happens to have at the port of distress a vessel of his own which he can employ in this service-in that case the labour of forwarding would be strictly that of himself or his servants-or whether he forwarded in the vessel of another upon payment for his labour and that of his servants; nor can it make any difference in the application of the clause whether, as here, the goods are in a port of large resort, where, by reason of the rate of freight, a forwarding vessel is easily procured, or whether the vessel becomes a wreck in an out-of-theway place and by unusual enterprise and skill the master is enabled to communiaate with a vessel either of his owner or of some other person, by which he forwards the cargo to its destination. The amount of labour is different in degree in the two cases, but in each it is a consequence of a peril |