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the proceedings, the Act must now be taken to have the force of law within the district, and we cannot interfere.
1861. Ex parte Suitu.
BLACKBURN J. I am of the same opinion. Sect. 16 of stat. 21 & 22 Vict. c. 98., seems to imply that it is incumbent on the petitioners to point out what they intend to be the proposed boundaries of the place; but the Secretary of State is to “settle its boundaries,”. and therefore he must have some power to alter the boundaries as proposed. Also it is said that he may "make an order as to the boundaries of the place :" that again looks as if he had a power to make some alteration in them. In this case the objection is that he has altered them by including a portion of the neighbourhood which was not included by the boundaries as proposed in the petition. I am not convinced whether he has or has not power to do that.
But, assuming that my brother Wheeler is well founded in his argument that the Secretary of State exceeded his authority, the applicant is out of time in making this application. By the sixth paragraph of sect. 16, “any place the boundaries of which have been settled in pursuance of the foregoing provisions shall thenceforth, for the purposes of this Act, be deemed to be a place with a known and defined boundary, and may adopt this Act accordingly.” Therefore, whilst the order stood, whether it was an order capable of being impeached or not, the Todmorden District was a place with boundaries de facto ; and, no certiorari being applied for to remove that order, the ratepayers might proceed to adopt the Act within the District. Then follow the sections giving a power of appeal against the resolution for
the adoption of the Act, and sect. 20 fixes the time at the expiration of which the Act shall have the force of law within the District. In this case the two months from the date of the passing of the resolution having elapsed, and the date mentioned in the order dismissing the appeal having also passed, and the Act therefore having the force of law within the District; a certiorari is applied for, attacking the order of the Secretary of State under which this has become a place with a defined boundary, and for no other purpose except to get rid of the resolution for the adoption of the act, which, by lapse of time, has acquired the force of law. It may be that the original order might have been removed by certiorari and quashed before the resolution for the adoption of the Act acquired the force of law. But it is too late to attack the foundation of the proceedings after the Act has acquired the force of law within the District.
COCKBURN C. J. I entertain serious doubts whether, under sect. 16 of stat. 21 & 22 Vict. c. 98., it is competent for the Secretary of State, on a petition of ratepayers to settle the boundaries of a District for the purposes of the Act, to extend the area of the District beyond the limits proposed by the petitioners. It is however unnecessary to give our judgment upon that point. I only desire that it may not be implied from the judgment of the Court, on this rule, that we pronounce any decision on that point.
Upon the other question my mind is not thoroughly satisfied on two points ; namely whether the sections of stat. 21 & 22 Vict. c. 98., giving an appeal against the adoption of the Act, are applicable ; or whether the
resolution for the adoption of the Act is final and conclusive, after the time mentioned in sect. 20, unless the boundaries have been properly settled. I think it is open to considerable doubt whether, when the Secretary of State has exceeded his power, in settling the boundaries of this District, as must be assumed for the purpose of the present argument he has done, every thing which has taken place subsequently is not invalidated. But I do not wish that my doubts should have any effect in delaying the decision of this case, by taking time for consideration, or by hearing further argument.
END OF TRINITY TERM.
A., as agent for a foreign owner, entered into a policy of insurance on a ship in the usual form. At the time of effecting the insurance, A. was in possession of a letter from the captain, informing him that the ship had received injury, which fact he, without fraudulent intention to deceive, omitted to disclose to the underwriters. The ship was lost, and B., one of the underwriters, paid to A. his amount of the insurance; but, having subsequently become acquainted with the above circumstance, brought an action for money had and received against him to recover it back. A., before he was aware of B.'s intention to dispute the policy, and acting bona fide throughout, transmitted to his principal the money he had received from the various underwriters; with the exception of a certain amount for which he had allowed the principal credit in a settled account, and of another which, with the authority of the principal, he had expended in a suit brought by him on behalf of the principal against C., another underwriter on the policy: held,
1. (In accordance with the decision in Russell v. Thornton, 4 H. & N. 788, affirmed on error, 6 Id. 140), that, in consequence of the concealment from the underwriters of the fact stated in the captain's letter, the policy was voidable at the election of the underwriters.
2. That A. being only an agent, of which B. was aware, and having, without notice of B.'s intention to repudiate the contract, paid over to his principal the amount received from the underwriters, B. was not entitled to recover back from A. his amount of the insurance.
3. That there was no difference in this respect between the money actually paid over by A. to his principal, and the moneys which had either been allowed in account between them or expended in the suit against C.
4. Quære, whether B. would have been entitled to recover, if he had not known that A. was acting merely as agent?
THIS was an action for money paid, money had and
received, and on accounts stated. Plea, never indebted.
At the trial, before Cockburn C. J., at the London Sittings after Hilary Term, 1861, it appeared that the action was brought under the following circumstances. The plaintiff was an underwriter at Lloyds, and the defendant a ship and insurance broker, carrying on business in London. On the 19th January, 1857, the defendant, acting as agent for the owners of a steam ship called “The Butjadingen," who were resident in the duchy of Oldenburgh, effected a policy of insurance on the ship, from the 21st January 1857 to 20th January 1858; which policy was underwritten by the plaintiff for 2001. also by a person of the name of Thornton for 30001., and some others. The policy was in the usual form, and stated the insurance to be entered into by the defendant “as well in his own name, as for and in the name and names of all and every other person or persons to whom the same doth, may, or shall appertain, in part or in all ;" the value being fixed at 11,0001., namely, 70001. on the hull and materials, and 40001. on the machinery. The insurance was effected by the defendant through the agency of Messrs. Hodges go Johnson, insurance brokers, the latter of whom was a member of Lloyds. At the time of the insurance the ship was abroad under a policy from the 20th January 1856 to 20th January 1857, and, a few days previous to the execution of the present policy, the defendant received a letter from the captain dated 6th January 1857, from Carthagena in Spain, stating that on the 2d of that month she had gone aground in the bay of Almeria, when she sprang a serious leak, and had reached Carthegena in a sinking state, at which place she was then undergoing repair. This information the defendant sent to Lloyds, where entry