Fire Insurance-Arbitration Clause. The point decided. by the House of Lords in Jureidini v. National British and Irish Millers Ins. Co. Ltd.,3 is that when an insurance company repudiates a policy altogether, and contends that all benefit under it has been forfeited, it cannot set up the arbitration clause as a bar to an action on the policy. The following passage from the judgment of Haldane, L.C., indicates the grounds upon which the House proceeded :

1

"No doubt it is true that the policy contains an arbiration clause with a very stringent addition to it to the effect that the going to arbitration is a condition precedent to the right to sue; and if that had been all, if the action had been brought upon a policy containing such a clause, and no more had happened, then, on principle and on authority, the claim could not have been maintained without fulfilling the condition precedent, because by the law of this country you can make most contracts which you desire to make, and amongst others a contract that you will' not come under liability under a contract unless that liability is defined in a particular way, it may be by an arbitrator; and Scott v. Avery, is a decision of this house to the effect that that is the law But the present case is different. There has been in the proceedings throughout a repudiation on the part of the respondents of their liability, based upon charges of fraud and arson, the effect of which, if they are right, is that all benefit under the policy is forfeited. But one of the benefits is the right to go to arbitration under this contract, and to establish your claim in a way which may to some people seem preferable to proceedings in the Courts; and accordingly that is one of the things which the appellant has, according to the respondents, forfeited with every other benefit under the contract. Now, speaking for myself, when their is a repudiation which goes to the substance of the whole contract, I do not see how the person setting up that repudiation can be entitled to insist upon a subordinate term of the contract still being enforced."

Costs Separate issues-Jurisdiction of Taxing-Master. -Bush v. Rogers," was an application before Bankes, J., occasioned by the recent decision of the Court of Appeal in Howell v. Dering, noticed at some length by us, supra, p.

335. That case decided, as Bankes, J., says: "That it was wrong to assume that because separate questions were put to a jury each question necessarily constitutes a separate issue." Consequently Bankes, J., decides that it is for the judge who tries a case to say whether there is any separate issue upon which the unsuccessful party is entitled to costs; and that in the absence of any direction a Taxing-Master has no jurisdiction to allow such costs: and, generally, in every case, whether tried by a jury or not, the judgment should contain a direction as to what costs, if any, either party is entitled to.

Malicious prosecution-Summons before justices for not abating a nuisance.-Wiffen v. Bailey and Romford Urban District Council, is an instructive case, before the Court of Appeal, on the subject of actions for malicious prosecution. The point decided is that a complaint under sec. 95 of the Public Health Act, 1875, for non-compliance with a notice to abate a nuisance will not support an action for malicious prosecution, even though preferred maliciously and without reasonable and probable cause, because it is not in itself a proceeding of such a nature as is calculated to involve damage to the fair fame, or liberty through danger of imprisonment, of the person against whom the complaint is made. All the judges concur, and the following extract from the judgment of Phillimore, L.J., will shew the grounds upon which they proceed.

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"I assume that this was a prosecution in a criminal matter, but that, in my opinion, is not sufficient to support an action for malicious prosecution. The three canons laid down by Lord Holt in Savile v. Roberts, have been accepted ever since, and they were specially referred to with approval by this Court in Quartz Hill Consolidated Gold Mining Co. v. Eyre. Those canons or conditions of such an action are, first, that there must be damage to a man's fame, as if the matter whereof he is accused be scandalous; secondly, damage to the person, as where a man is put in danger to lose his life, or limb, or liberty; and thirdly, damage to a man's property, as when he is forced to expend his money in necessary charges to acquit himself of the crime of which he is accused. The

only expenses in the present case are the difference

84 L. J. K. B. 688, [1915] 1 K. B. 600.

8 (1698) 1 Ld. Raym.. at p. 378.

9

52 L. J. Q. B. 488, 490, 492; 11 Q. B. D. 674, 683, 689.

between the costs allowed to the plaintiff by the justices and the additional costs incurred by him in. defending the proceedings. So far, at any rate, as this Court is concerned, we are bound to holdand I see no reason to dissent from this view-that those extra expenses are not legal damages. The next question is whether the plaintiff was put in danger of losing his liberty. In my opinion he was not. It is quite true that if upon the hearing of the summons an order had been made against him, not merely to cleanse the room, but to pay a penalty and costs, and he did not pay, and a warrant of distress was issued and no sufficient distress was found upon the premises, he might have been sent to prison. But... that has never been considered as sufficient to support a suggestion that the man's liberty is put in peril within the head of damage stated by Lord Holt. Every case where an injunction is obtained against a person may lead to a motion for committal for contempt of Court and to the defendant being imprisoned. There remains the last head of damage-namely, that to a man's fame, as if the matter whereof he is accused be scandalous.. It seems to me that what one must look at is, not what might be proved in the course of a prosecution, but what is enough to support a conviction upon the information or indictment. If it will be enough. to support a conviction upon the information or indictment that the person charged has done something which does not injure his fair fame, no scandal is involved in the prosecution. In the present case the only complaint is that the plaintiff, being the occupier of a house and having had a notice served upon him to strip the paper off the walls in certain rooms and to cleanse the rooms, within twenty-one days, has not complied with the notice. It does not follow that he is responsible for the condition. of the premises, or responsible for any appreciable length of time It seems to me that it would be going too far to say that that kind of prosecution involves a scandal The case of Quartz Hill Consolidated Mining Co. v. Eyre, supra, shews that there are certain forms of civil proceedings, though within very narrow limits, which may give rise to an action for malicious prosecution, because, as the Court says, the bane comes before the antidote, and mischief may be done which it will be too late to overtake. I think that Sir Herbert Stephen is right in his book on Malicious Prosecution, (p. 19), in treating an action for maliciously taking proceedings in bankruptcy and that class of action as not

being strictly actions for malicious prosecution, but closely analogous thereto. Upon the whole I come to the conclusion that this is not a case in which an action for malicious prosecution will lie.'

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To explain the latter part of this passage, we may quote the words of Buckley, L.J., at p. 692:

"The exception of civil proceedings, so far as they are excepted, depends, not upon any essential difference between civil and criminal proceedings, but upon the fact that in civil proceedings the poison and antidote are presented simultaneously. The publicity of the proceedings is accompanied by the refutation of the unfounded charge, if it be unfounded, which was made."

Damages-Unwitting committal of criminal act through negligence of another party-Costs of Defence.-R. Leslie Ltd. v. Reliable Advertising and Addressing Agency, Ltd.,10 is a decision of Rowlatt, J., on the somewhat curious point, that one who has innocently done an act punishable under a criminal statute, through bona fide reliance on a perfectly legal contract of another party, not in fact carried out, cannot recover from the defaulter under the contract the penalty or costs of defence incurred by him in the proceedings taken against him under the statute. The statute was the Betting and Loans (Infants) Act 1892, and the offence was sending to a minor a circular inviting applications for loans. The plaintiff had employed the defendants, an Advertising Agency, to send out the circulars to the parties named in Kelly's Handbook of the Titled, Landed, and Official Classes for 1914, after deleting therefrom the names of all minors. The defendants by mistake addressed a circular to a minor, and the plaintiffs, in ignorance of that fact, posted the same to the addressee. Having been prosecuted, convicted, and fined under the above statute, they now sued the defendants to recover, as damages for breach of the agreement aforesaid, the expense they had thus been put to. Rowlatt, J., gave the plaintiffs nominal damages of 1s. for breach of contract; but as the defendants had paid £5 into Court, he held them entitled to the general costs of the action, the plaintiffs to have the costs of proving the breach of contract. He says, (pp. 722-3):

1984 L. J. K. B. 719, [1915] 1 K. B. 652.

"The position is that a contract, reliance upon which in sending out the circulars was a default made a crime by statute, is now made the basis of an action to recover, as damages, compensation for the punishment in which such reliance has involved the plaintiff. I confess that, when first I saw the nature of this action, I formed and indicated a strong opinion that it was misconceived on the broad ground that a person convicted of a criminal offence could never have the assistance of a civil Court to ease himself of the punishment by the recovery over either of the amount of any fine or costs or of damages to compensate him for any imprisonment, and that there could be no difference between cases where the legislature had made an act or default punishable as a crime without the existence of a guilty mind, and any other class of offence

In support of this view it may be said that a law which imposes a punishment, as distinguished from a payment of compensation, is defeated by the punishment being passed on to another. The object sought to be secured by such a statute in the public interest is not that so much money shall be collected by way of fine, but that a person who puts himself in such and such a position shall be punished by way of fine, in order to make such person prevent such things happening again; and I should have thought that the statute could not have its effect if the convicted person could obtain compensation in a civil Court for the punishment inflicted upon him in the criminal Court. There are, however, authorities the other way. It seems

to me, however, that giving the fullest effect to all that was said or even suggested in Burrows v. Rhodes,11 this action fails . . If the substance is looked at, what the plaintiffs were convicted of was sending the circular without having reasonable ground for believing the addressee to be of full age. They knew what grounds they had-namely, their contract with the defendants-and it was insufficient. They knew the facts which constituted the offence. It is not to the point to say that the defendants contracted to omit the minors, and that they cannot be heard to say that the plaintiffs had not good ground for believing every recipient of the circular to be of full age. The action fails on the ground of the plaintiff's illegal action, whether the defendants do or can allege it or not."

Charterparty-Sale of ship before execution of Contract -Parties to Contract.-In Keighley Marted & Co. v. Dur11 68 L. J. Q. B. 545, [1899] 1 Q. B. 816.