or health of the workmen employed in the said pits and workings, or with any likelihood of detriment to the present or future workings of the mine, beyond a temporary suspension of the works of the defendants for a few hours, or at most for a day. On this Blackburn J. made an order that the plaintiff, by his witnesses, workmen and agents, should be at liberty to inspect the defendants' mine at and behind the wall in the affidavits and the inspector's report mentioned; that for this purpose the defendant should give all reasonable facilities for access to and in the mine, and for ventilation during the process; and that the plaintiff should be at liberty, so far as was necessary for the purpose of the inspection, to make a driftway as described in the inspector's report; that before commencing the inspection the plaintiff should give security to the satisfaction of the master to the extent of 5007., or deposit that sum with the master, to abide any order the Court might make as to indemnifying the defendants for any loss or damage which might be sustained in consequence of this inspection, the plaintiff undertaking to fulfil any order in that respect made by the Court. On the last day of last Term, Mr. Gray applied for a rule to set aside this order, against which cause was shewn in the first instance. No objection was made to the propriety of the order, or the justice of the terms contained in it, if the Judge had jurisdiction to make it; but it was contended that neither the Court nor a Judge had jurisdiction to interfere with the wall itself, or the defendants' minerals, for the purpose of making an inspection behind the wall. As this was the first instance, as far as we know, in which any question as to the extent of this new juris 1861. BENNETT V. GRIFFITHS. 1861. BENNETT V. GRIFFITHS. diction in a Court of common law had been raised, the Court took time to consider. We are of opinion that the Judge had jurisdiction to make the order in question. The power to order an inspection of real or personal property has long existed in the Courts of equity; and we find that, as ancillary to that power, the Courts of equity have ordered the removal, where necessary, of obstructions to the inspection. In the notes to East India Company v. Kynaston (a) two cases are reported in which, under circumstances very similar to the present, such orders were made. In Earl of Lonsdale v. Curwen (b) the defendant had worked his own mines, so as, by the rubbish, &c., to obstruct the passages to the spot where the inspection was sought. An order was made that the viewers should inspect the mine, and that the defendant should remove the obstruction. In Walker v. Fletcher (c) the defendants had, in working their own mines, either bonâ fide to keep out the water, or colourably to prevent the inspection, erected framed dams and barriers, the effect of which was to drown the part of the mine where it was alleged that the encroachment had taken place. The order made was, that that the defendant should remove the framed dams and barriers as the viewers should direct; and that the viewers were to cause the same to be removed, unless they should be of opinion that the collieries would be thereby destroyed. This latter case, which was decided in the time of Lord Eldon, is a strong assertion of the power to remove obstructions to inspection; and seems to us to go far to support, in (a) 3 Bligh. O. S. 153. (b) 3 Bligh, O. S. 168, note, (c) 3 Bligh, O. S. 172. that respect, the order now complained of. In the recent case of Ennor v. Barwell (a) the Lords Justices varied an order of Stuart V. C., in which he had directed that the plaintiff should be at liberty to cut trenches in the defendant's ground, in order to ascertain the geological formation of the ground there, as being too extensive; but no doubt was thereby thrown on the jurisdiction exercised in Earl of Lonsdale v. Curwen (b), or Walker v. Fletcher (c). The 58th section of The Common Law Procedure Act, 1854, does not regulate the jurisdiction given to the Courts of law by reference to that already exercised by the Courts of Equity; but we think that, as ancillary to the power of inspection given to the Courts of common law, there is the same power given to remove obstructions with a view to inspection, which was exercised by the Courts of equity as ancillary to their power of ordering inspection. The order complained of does not, as it seems to us, go further than that made in Walker v. Fletcher (c). This being our opinion, the rule must be discharged. Rule discharged. 1861. BENNETT V. GRIFFITHS. 1861. Monday, Defendants, assurances against loss of life and personal injury arising from accident at sea," granted a policy to S., the master of a ship then to pro SINCLAIR, administratrix, against The MARITIME CASE stated by consent, and by order of Blackburn J., for the opinion of the Court, without pleadings. This was an action brought by the plaintiff, as administratrix of Lawrence Sinclair, deceased, against the defendants, for the recovery of the sum of 1007. The case stated that Lawrence Sinclair, in the policy of assurance thereinafter mentioned, and therein called. and described as "the assured," then of South Shields, in the county of Durham, master of the ship Sultan, being about to proceed on a foreign voyage, namely, Aden; whereby Voyage from the river Tyne to Aden and elsewhere, it was agreed did, on 13th March, 1857, effect an assurance on his about to proceed on a voyage from England to that in case S. "should sustain any personal a injury from, or by reason or in consequence of, any accident which should happen to him upon any ocean, sea, river, or lake," during the continuance of the policy, defendants should pay him a reasonable compensation for such injury; and in case he should die from the effects of such injury within three calendar months from the occurrence of the accident, should pay the sum insured to his executors or administrators. It was further agreed by the policy that no compensation should be payable thereunder by defendants, either to S. or his personal representatives, in respect of injury occasioned to S. by wounds in battle or in any way by the act of the Queen's enemies; or in respect of any injury to which S. should knowingly and without some adequate motive expose himself; but it was declared that, with those exceptions, the policy was intended to secure compensation to S. or his representatives "in the event of his sustaining any personal injury during the said intended voyage, from or by reason or in consequence of any accident whatsoever." S. then sailed on his intended voyage, and in the course of it arrived in the Cochin river, on the south-west coast of India. Whilst on board his ship in that river, and acting as master of the ship, he was struck down by a sunstroke, to which he did not knowingly and without adequate motive expose himself, and from the effects of which he on the same day died. In an action by S.'s administratrix on the policy to recover the sum insured from defendants; Held, that defendants were not liable for that S.'s death could not be said to have arisen from accident, within the meaning of the policy. life with the defendants, The Maritime Passengers' Assurance Company, "for granting assurances against loss of life and personal injury arising from accident at sea," for the sum of 1007.; and did then pay to the defendants the sum of 11. as premium thereon for one year, the said sum of 17. being the amount of premium required by the defendants in consideration of the said insurance; and did afterwards pay or cause to be paid to the defendants, and the defendants did, in March, 1858, accept, the further sum of 17. premium, as a further and continuing consideration for the said insurance of 100%.; and, at the time of the. death of the said Lawrence Sinclair thereinafter mentioned, all the premiums due and payable to the defendants in consideration for the said assurance were and had been paid, and the said policy of assurance was in full force and effect. And the said Lawrence Sinclair, in his life, and the plaintiff, administratrix as aforesaid, since his death, had in all things conformed to and performed and kept all things in the said policy mentioned, and all the conditions endorsed thereon, on their parts, and had given all notices required thereby, and all things had happened and been performed, and all times had elapsed, necessary to entitle the plaintiff to maintain this action, if the Court should answer in the affirmative the question thereinafter proposed for their consideration. By the said policy of assurance it was (inter alia) agreed that in case the said Lawrence Sinclair, therein called the assured, should sustain any personal injury from or by reason or in consequence of any accident which should happen to him upon any ocean, sea, river, or lake, within the period of twelve calendar months from the date of the said policy, and subsequently 1861. SINCLAIR V. MARITIME |