place of delivery. Upon this point there was no evidence but that of the plaintiff himself, who said that he could not purchase similar goods at Neath for less than 251. [Blackburn, J.-It is conceded that there was no market for such goods at Neath.] The rule excludes from calculation anticipated profits which admit of no certain proof; and fruitless charges, such as travelling expenses incurred in journeys rendered abortive by reason of the non-delivery of the goods, wages paid to workmen kept idle by the delay, &c. (Wilson v. The Lancashire and Yorkshire Railway Company, 9 C. B., N. S., 632; S. C., 7 Jur., N. S., 862; Gee v. The Lancashire and Yorkshire Railway Company, 6 H. & Norm. 211; Hadley v. Baxendale, 9 Exch. 341). The market price, which should regulate the damages, is made up of the prime cost of the goods, the expenses of carriage, and importer's profits, and ordinarily the jury have simply to ascertain what the market value is, and give it as the amount of damages. It may be, however, as in the present case, that there is no market for goods of the kind lost at the place of delivery; but even in such case the same elements must be taken into calculation, notwithstanding that no precise evidence of the profits of importation can be given. Where the question arises under such circumstances, the jury, in assessing the amount of imported profits, must be guided by their experience and general knowledge of business; and if they should give a sum palpably in excess of what was fair and reasonable, no doubt the Court would reduce the damages. Here the excess, if any, is not so palpable as to call for the interference of the Court, and the plaintiff is entitled to retain the verdict. [He also referred to Black v. Baxendale (1 Exch. 410).]

Grove, Q. C., H. S. Giffard, Q. C., and Ollivant, in support of the rule.-With respect to the question of interest upon the value of the goods, it is clear that upon no reasonable computation can it amount to the sum paid into court; the question then arises, whether upon other grounds the plaintiff is entitled to retain his verdict. It was laid down in Hadley v. Baxendale, that the damages should be such as may fairly and reasonably be considered as arising naturally from the breach of contract, or such as may reasonably be supposed to have been in the contemplation of the parties at the time of contract; and this rule was adopted in Wilson v. The Lancashire and Yorkshire Railway Company, where the plaintiff was held entitled to recover the amount of the diminution in value of the lost goods, by reason of the season during which they might have been sold to advantage having passed, but not the loss of anticipated profits, or the expense of fruitless journeys; and to the same effect is the decision in Gee v. The Lancashire and Yorkshire Railway Company. In these cases the goods were not lost, but delayed only; and the only question was, as to special damage for delay; and it was held, that damages for deterioration might be given, but not for loss of seller's profit; and here no special damage was given in evidence. What, then, was the value of the goods at the place of delivery is in the present case the material question; and in Rice v. Baxendale, Bramwell, B., says, that the value is the price for which they can be got to, not at, the place of delivery. The observations of Martin, B., are also to the same effect-"The loss is the sum at which the goods could have been replaced at Maidstone" (the place of destination), " and the proper mode of replacing them is to purchase them, not of a tradesman, but of the manufacturer." This, then, allows only for prime cost and carriage of the goods; and if the plaintiff had ordered other goods, similar to those lost, of the same manufacturer at Leeds, to be transmitted to him at Neath, the expense of prime cost and carriage, which, added to the amount due

by way of interest, are all the items that the jur ought to have taken into consideration, fall far sh of the sum awarded by way of damages. [B burn, J.-I confess to some difficulty in understan ing precisely the ruling of some of the learned rons in Rice v. Baxendale.] With respect to the question of importer's profits, there is this difficulty in the plaintiff's way, that (assuming such to be as sessable by way of damages) there was no mark at Leeds for goods of the description lost, and there fore nothing whereby to test the plaintiff's loss. I fact, the importer's profit may be nothing; owing fluctuations in the market, or similar cause, he be at a dead loss in purchasing and forwarding g to any given town. Some evidence of market va should, therefore, have been adduced; and in this cam none was forthcoming. There was nothing, there upon which the jury could arrive at any concha [Blackburn, J.-It is too much to say, that beca there does not happen to be a market for lost ga at the place of their destination, the owner is, fore, disentitled to recover anything in respect of the market value of his property. In such case the ju must rely upon their common sense and knowl as men of business, to guide them to a proper cond sion. If, as suggested, the owner of the goods b imported them at a loss, and it can be proved that has done so, so much the better for the defe Mellor, J.-In such a case it seems impossible to o jecture what direct evidence could be given.]

BLACKBURN, J.-In this case we are all of op that the rule should be discharged. The defendu pleaded payment into court of 221, and the leave served was to enter the verdict for the defendants i there was no evidence on which the jury could pr prerly find a verdict in excess of that sum. It app that goods costing 201., cash down, the invoice p being 20%. 10s. 9d., were delivered at the defenda railway station early in November at Leeds, where were purchased, for carriage to Neath, and that t were lost by the way. It was argued, that the laid down in Rice v. Baxendale is applicable to the viz. that the measure of damages, setting all sp damage aside (and here no question of special mage was submitted to the jury), would nat and simply be the market value of the goods al place of destination, and time when delivery of th to the owner should have been made. If there no market for goods of the description at the pin of delivery, so that there are no means of th riving at the amount of damages, other meas informing the minds of the jury must be res to, and the various elements which enter into the late Sir Robert Peel used to call "the big of the market," must be taken into considerat Now, Neath was a place at which there was no m for such goods as those in question, and the jury therefore, to take into consideration those elem It is clear, that where there is an actual m importers regulate the market price, not simp the individual costs and charges of each, but by general average costs and charges, added to the g average importer's profit. It cannot be doubted the value or market price of cotton at Liverpool exceed the value of the article in the country wh is grown, the costs of freight and other expens tendant upon its transport to this country; otherwise, it would not be worth the while of to import it. Importer's profit is, therefore, rily one of the items composing the market the goods, in arriving at which there can be culty in cases where a market exists. Where th no market, other means must be tested; and w take into consideration, as well as we can, the clan

14

which compose that which forms the standard, where there is one; and these, as I have already said, include, in addition to cost price and expenses of transit, importer's profits. Now, it is obvious that this is a matter upon which it is naturally very difficult, if not impossible, to furnish evidence, and in such case the parties must trust to the experience and intelligence of the jury to guide them in ascertaining what are

profits of importation; that is to say, such sum as a dealer selling them would look for as his fair profits on the transaction.-Rule discharged.

TRINITY TERM.

[Before BLACKBURN and SHEE, JJ.]

-June 3.

25 Vict. c. 55, 8. 4.

MELLOR, J.-It is after considerable hesitation that I have arrived at a conclusion upon the question before us; but I nevertheless concur with my Brother Blackburn. It certainly seems to me impossible to lay down the rule, that where there is no market, the damages in a case like the present are to be limited to the cost price of the goods and the expenses of carriage; justice clearly demands that another item, viz. importer's profits, should be included. It is obvious that when goods have arrived at the market, they must be worth something more than the cost price and expenses of conveyance, and it is the excess beyond these items which forms the importer's profits. This view is, I think, not inconsistent with that expressed by my Brother Bramwell in Rice v. Baxendale, who says, that f the case were to be sent down again, no doubt the adge would find that the goods were worth more at Maidstone, the place of delivery, than at Leeds, and probably he would be of opinion that something should be added here. It is said by the counsel for the defendants that there should have been some evidence on which to estimate the sum to be reovered; but I confess I do not see what evidence is attainable on the point. If, then, it be impossible by means of evidence to arrive at the full measure of damages for I repeat that I do not retognise the measure of damages as confined to the two elements of cost price and carriage-the additional quantum must be assessed by the jury, acting upon their own experience and general knowledge of business. The jury in the present instance have been, perhaps, somewhat over liberal, as is not unusual in actions against railway companies; but the difference between the sum paid into court and the sum given by the jury is not so great as to induce the Court to grant a new trial on the ground of excessive damages, supposing that to have been the form of the motion. Here the question is, whether the verdict ought to be entered for the defendants, or stand for the plaintiff? And I cannot see that, on the finding of the jury, we can say that the verdict ought to be entered for the defendants, by rejecting every other element of computation than the mere cost of the goods at Leeds, plus the freight.

SHEE, J.-I am of the same opinion. When a carrier fails to deliver goods entrusted to his care, the owner is entitled within a reasonable time to go and purchase similar goods at the place where the carrier undertook to deliver them. If there be a market there, he suffers no damage beyond the cost of supplying himself in the market; and the market price may be resorted to as affording the true test of the measure of damages. But if at the place of delivery there be no market where the goods can be obtained, then the amount of damages must be measured by ascertaining the prime cost and expenses of transit of the goods, and adding to these items the reasonable

To entitle a pauper who temporally absents himself from an union, in which he has acquired the status of irremovability under the 24 & 25 Vict. c. 55, s. 4, to retain his privilege upon the ground of a constructive residence, it is necessary not only that he should have the animus revertendi, but also a place of residence in the union; and a lodging which he occupied when actually resident in the union, but for which he did not pay rent during his absence, although he might have reoccupied it whenever he chose, and at which he left some trifling articles of property during his absence, will not suffice for the

purpose.

On an appeal against an order of justices adjudicating the settlement of George Whittle, a pauper lunatic, to be in the parish of Beckford, in Winchcombe (the appellant) Union, tried at the last Michaelmas quarter sessions for the county of Worcester, the sessions quashed the order of adjudication, subject to a case, of which the substance was as follows:

The settlement in Beckford was proved; but the appellants called witnesses in support of a ground of appeal, alleging the pauper's irremovability from Stourbridge (the respondent) Union, by reason of a three years' residence therein prior to the 17th February, 1864, when the pauper was conveyed to the lunatic asylum.

The facts material to this question were, that the pauper, who had lived with his wife and child in a cottage at Quarry Bank, in the respondent union, about Whitsuntide, 1861, left the cottage in consequence of his wife having deserted him, and his goods being seized for rent. The child was apprenticed to a tailor, with whom he went to reside, and has ever since continued to live; and the pauper became a lodger at the house of a Mr. and Mrs. Drewe, at Quarry Bank. In October, 1862, he left the Drewes, and went to Kemmerton, in Oxfordshire, to work there, telling the Drewes he meant to return when the trade at which he worked (that of a puddler) became better; and he asked them to write to him and let him know if the trade improved. He left behind him a waistcoat and a pair of trousers, which, however, were stated by Mrs. Drewe "to be scarcely worth wearing."

He was absent at Kemmerton, out of the respondent union, for three months, when he returned to the Drewes, at Quarry Bank, and in a fortnight after left them again, and left his watch behind him, because he was subject to fits. The watch was afterwards sent to him. After a period of three weeks he again returned to his lodgings. During his absence on both occasions his lodgings were not occupied by anybody else, and had he returned at any time he might have had them.

If the Court should be of opinion that the pauper, when conveyed to the asylum, was not irremovable from the respondent union by reason of a break in the three years' residence, the order of sessions was to be quashed, with costs to be paid by the appellants; otherwise the order of sessions was to be affirmed.

affection. My father has not worked on my mind to institute this suit. I have not seen him during the suit. I have not been on terms with him. The estrangement between us was caused by my last return to my husband."

Ballantine, Serjt., put in some letters of the petitioner, and addressed the Court on the question of cruelty.

The Queen's Advocate replied.

Cur, adv. vult. July 18.-THE JUDGE ÖRDINARY.-An earnest appeal was made to the Court by the respondent's counsel in this case to forbear pronouncing for a dissolution of the marriage. The respondent did not deny his habitual intoxication, or the immorality with several other women, charged against him by the petitioner. But stress was laid on his youth, and the hope, often before indulged, and as often defeated, that he might reform and become fit to cohabit with his wife. Being of opinion that the petitioner has made out her case, the Court is not at liberty to indulge in a leniency to the respondent which would be injustice to her. Of the adultery nothing could be said. It was frequent and undisguised, with the commonest women of the own; and had this only excuse or palliation, that the respondent was rarely or ever sober. The question of ruelty was more open to discussion; and had each act of what the law calls cruelty stood alone, there would 1ot, perhaps, have been enough to found a decree. 3ut cruelty, in the sense in which the Court holds it roved, as a ground of separation or divorce, lies in he cumulative ill conduct which the history of the married life discloses. This aggregate is made up of hose acts of personal violence or degrading conduct thich are spoken of in the books as acts of cruelty, alliated or inflamed, as the case may be, by the repective language, demeanour, and bearing of the arties; and the whole considered in connexion with he general treatment which the party complaining may have received. In this case it was proved, that, a addition to slight blows inflicted on several occa ions, and some bruises, the respondent did on one ccasion really attempt to cut his wife's throat. He vas drunk at the time, and he seized her and drew a arge knife across her throat. She describes that the nife was turned the wrong way, and so she escaped. But it was attempted seriously, and when the repondent was in a violent passion, at her proposing to eave him. It also appeared that she only escaped rom the room by a stratagem, or the most fatal ̄reults might have ensued. No doubt intoxication, and ot permanent ill-will or want of affection, was the ause of this attack. But the constant habit of rink to excess, continued up to the filing of the etition, and there is no guarantee that such violence night not recur. The petitioner left him more than nce only to return, in reliance on his promised reormation, and only to leave again in search of safety. f this were a suit for restitution of conjugal rights nstituted by the husband, how could the Court order he wife to return to cohabitation with a man thus given over to drink, and thus aggressive under its inluence? And if it were a suit for a separation by er, how could the Court refuse relief from the duty of cohabitation to a woman who, ever since her mariage with an educated and, as his letters shew, a alented man, had had her home disgraced and comort destroyed by constant intemperance, her name nsulted by her husband's open and notorious profligacy, and her safety, if not her life, endangered by a murderous assault? If so, this conduct constitutes legal cruelty; and although the adultery would be fficient to justify a decree of separation, and thus place the petitioner in safety, without decreeing a dissolution of marriage, still, if it be legal cruelty, a diNo. 563, VOL. XI., NEW SERIES.

vorce is the right of the wife, and I am bound to decree it accordingly.-Decree nisi. Attorneys for petitioner, Stibbard & Beck; for respondent, Hawkins & Co.

ROLLS COURT.

WILLIAMS v. GLENTON.-July 1 and 17. Vendor and purchaser-Delay in completion—Payment of interest.

Two co-heirs in gavelkind joined in executing a lease for a term of fourteen years. When the lease had eleven years to run, one of the co-heirs agreed to sell to the defendant his undivided moiety for a sum quite out of proportion to the annual rent reserved by the lease; and it was provided, that if, "from any cause whatever," the purchase should not be completed by a day named, the purchaser should pay interest up to the time of completion. By reason of adverse claims set up by the co-heir, and from no misconduct of the vendor, the purchase was not completed for upwards of ten years. The purchaser insisting upon the completion of the purchase-Held, that he must pay interest, as provided by the contract.

The facts of this case are fully stated in his Honor's judgment.

Hobhouse, Q. C., and Dauney, for the plaintiff, cited Sherwin v. Shakspeare (5 De G., Mac., & G. 517). Baggallay, Q. C., and F. N. Colt, for the defendants in the same interest, cited Bailey v. Collett (18 Beav. 179).

Southgate, Q. C., and W. Barber, for the defendant Glenton, cited Vickers v. Hand (26 Beav. 630); Lord Palmerston v. Turner (33 Beav. 524); Esdaile v. Stephenson (1 Sim. & S. 122); Monck v. Huskisson (4 Russ. 121, note); Wells v. Maxwell (32 Beav. 408); De Visme v. De Visme (1 Mac. & G. 336); Bannerman v. Clarke (3 Drew. 632); Sugd. V. & P. 633; and Dart's V. & P. 418.

July 17.-Sir J. ROMILLY, M. R.-The question in this case is, the time from which interest is to be calculated on the purchase money for the property sold to the defendant.

The contract of sale bears date the 27th March, 1854, whereby Samuel Williams (since deceased) agreed to sell to the defendant, who agreed to buy, all that his, Williams's, undivided moiety in Arnold's farm, situate at Charlton, in the county of Kent. At the date of the agreement the property was subject to a lease, granted by Samuel Williams and his brother John Williams, to a person named Collins, for the term of seven or fourteen years from the 12th September, 1851, at the rent of 2077. 10s. per year for the first seven years, and 2491. per year for the second term of seven years; and, consequently, the vendor was entitled to the yearly rent of 1247. 10s. for the second term of seven years.

The price agreed to be paid for the undivided moiety was 90007., which, at 47. per cent., would produce 360l. a year, for that which at the then rental produced only 1247. 108. a year.

The agreement for sale provided, that the purchase should be completed on the 24th June, 1854, up to which time the vendor was to receive the rents, and pay all taxes and outgoings, and from which time the purchaser should defray all taxes and outgoings, and be entitled to the rents and profits. And it was provided, that "if from any cause whatever the purchase shall not be completed on the said 24th June, the purchaser shall pay to the vendor interest on his purchase, after the rate of 47. per cent. per annum, from the said 24th June until the time of such completion."

The abstract of title was sent on the 20th April,

00