LITTLEDALE, J.: WEDGE v. I think that the jury found a proper verdict; but that does BERKELEY, not decide the present question. Whether the defendant is entitled to a verdict on the merits, and whether he is entitled to notice, are very different enquiries. If he had notice, and the merits were against him, he might tender amends. Had there been, in this case, any want of bona fides shown, or any proof that the defendant acted on a grudge, the case would not stand as it now does. But the evidence did not lead to any such conclusion. (He then recapitulated the principal facts.) It seems to me that the defendant acted bonâ fide; and that, being so, he was entitled to notice. PATTESON, J.: There were two points in question in this case; the bona fides, and the ground of suspicion. The question of bona fides was not put to the jury: but, if circumstances raise that question, there is no doubt that it is for the jury. The defendant applied for a nonsuit by reason of the want of notice, at the close of the plaintiff's case. The plaintiff did not then dispute the bona fides, or require that the opinion of the jury should be taken upon it. It must therefore have been assumed, at that time, that the defendant acted bonâ fide, supposing that he acted with authority. Then the statute 24 Geo. II. c. 44, s. 1, protects a magistrate for anything done in the execution of his office;" that is, where he acts, bonâ fide, with the intention to execute it. In general it has not been put to the jury whether the magistrate acted bona fide, because that has been assumed; but the question is for them. The defendant here is not entitled to a verdict, because reasonable ground of suspicion has been negatived; but the rule must be absolute for entering a nonsuit on account of the want of notice. COLERIDGE, J.: The distinction is clear between that which amounts to a defence and that which entitles to notice. The magistrate is entitled to notice where he has no defence on the merits, but where, in a matter within his jurisdiction, he has exceeded its [ *669] WEDGE ม. The first question has, in fides being assumed; and I limits (as if he has proceeded singly where another magistrate BERKELEY. ought to have joined), acting, nevertheless, bona fide. Whether there was bona fides, and whether there was reasonable cause, are both questions for the jury. general, not been put, the bona think it was assumed here. The defendant put it to the learned Judge, at the end of the plaintiff's case, that there should be a nonsuit for want of notice; but the plaintiff never proposed that the jury should be asked whether the defendant had acted bona fide; a question which the Judge would have put if required. The defendant must, at all events, have the benefit of the omission. Rule absolute. 1837. May 2. [ 670 ] MAYALL AND OTHERS v. MITFORD AND OTHERS. (6 Adol. & Ellis, 670-674; S. C. 1 N. & P. 732; W. W. & D. 310.) Action against insurers, on a fire insurance policy upon the machinery of cotton mills, containing a warranty that the mills should be worked by day only. Plea, that a steam engine and horizontal shafts, being parts of the mills, were without defendants' consent worked by night, and not by day only: Held bad, on motion for judgment non obstante veredicto, as not showing a breach of the warranty. ASSUMPSIT on a policy of insurance against fire. The declaration set out the policy, which was on the machinery of certain cotton mills, and contained the following warranty (among others), "Warranted that the said mills were brick built, and slated; that they be warmed and worked by steam, lighted by gas, worked by day only, &c." Allegation (among others), that the said mills were brick built, and slated; that they were warmed and worked by steam, lighted by gas, worked by day only, &c. The declaration stated a loss by fire: breach, non-payment of the amount of loss. First plea. That a certain steam engine and certain upright and horizontal shafts, then being respectively parts of the said mills in the said policy of assurance mentioned, after the making of the said policy of assurance in the said declaration mentioned, to wit 1st May, 1834, and on divers other times between that time and the destruction of the said premises by fire, as in the declaration mentioned, were, without the leave or consent of defendants, worked by night and not by day only. Verification. Replication. That the said supposed steam-engine and shafts in that plea mentioned were not respectively parts of the said mills in the said policy of assurance mentioned; and that the same were not, after the making of the said policy of assurance, without the leave or consent of defendants, worked by night and not by day *only, in manner and form &c. Conclusion to the country. Several other issues in fact were joined. On the trial before Lord Abinger, C. B., at the Liverpool Summer Assizes, 1835, a verdict was found for the defendants on the issue on the first plea, and for the plaintiffs on all the other issues. In Michaelmas Term, 1835, Blackburne obtained a rule nisi for judgment non obstante reredicto (1). Cresswell, J. L. Adolphus, and W. H. Watson, now showed cause: The first plea shows a breach of the warranty. In Whitehead v. Price (2) it was decided that the pleas did not show a breach of warranty, as they alleged only that the steam engine and parts of the gear were worked by night, while the words of the policy, according to their grammatical construction, imported merely that the buildings (constituting the mill) were worked by day only. Here the record shows that what was worked was part of the mill the warranty therefore is broken, unless it can be said that a mill is not worked when a part of it is worked. And in Whitehead v. Price (2) there was only a description; here there is an express warranty. A warranty must be strictly complied with; De Hahn v. Hartley (3), Newcastle Fire Insurance Company v. Maemorran (4): though substantial compliance with a mere description is sufficient: Dobson v. Sotheby (5), on the authority of which Shaw v. Robberds (6) *was decided. In this last case the decision turned upon the use of the kiln not being, (1) The rule was for a new trial, or judgment non obstante veredicto. Several points were discussed which the judgment of the Court renders it unnecessary to notice. (2) 41 R. R. 767 (2 Cr. M. & R. 447; 5 Tyr. 825). (3) 1 R. R. 221 (1 T. R. 343; (4) 15 R. R. 67 (3 Dow, 255). MAYALL V. MITFORD. [ *671 ] [ *672 ] on the evidence, habitual: here the plea follows the words of the Sir J. Campbell, Attorney-General, (with whom were The meaning of the warranty clearly is that the mills are to be worked, as mills, by day only. But, if this plea disclose a breach, then any movement in any part of the machinery of the mill is a violation of the warranty, which cannot be contended. It might be necessary to work the engine for the purpose of repair, or for cleaning it, during the night: the warranty cannot be meant to provide against that. It does not follow, from the engine being part of the mill, that working the engine is working the mill. A warranty must have a reasonable interpretation: thus a warranty to sail with convoy is complied with if the vessel sail with convoy from the place of rendezvous, though she sail thither from the port of departure without convoy. The plea should have alleged that the mill was worked by night; then the question would have been, whether the evidence as to the working of the engine showed a working of the mill. (He was then stopped by the Court.) LORD DENMAN, Ch. J.: Whitehead v. Price (2) shows that there was no breach of warranty here, unless the mill was worked by night; then the question is, whether the plea is good which shows only that a part of the mill was so worked. I cannot say that from a part of the mill being worked it follows that the mill was worked. A part, for instance, might always be at work for supplying water; (1) P. 407, ante (6 Ad. & El. 75). (2) 41 R. R. 767 (2 Cr. M. & R. 447; 5 Tyr. 825). would that be a breach? The foundation of the answer to the declaration, therefore, fails, there being no allegation, in terms of the warranty, showing a breach. There must be judgment non obstante veredicto. LITTLEDALE, J.: I think the plea ought to have stated, in the terms of the warranty, that the mill was worked by night. If issue had been joined on such a plea, the question for the jury would have been, whether the mill was, substantially, worked. Work may be done during the night, by part of the mill, yet not by the mill, and therefore not so as to cause a breach of the warranty, although it was work without which the mill could not have gone on. PATTESON, J.: All turns upon the meaning of the word "mills" in the warranty. It is generally advisable, though I do not say that it is always necessary, to plead a breach of warranty in its very words; and then the question is, whether the evidence supports a plea so worded. But I will not say that a plea might not have been good here which alleged in substance that the work done in the mill by day went on also by night. At present, the plea is ambiguous; the work done might simply be a movement of the machine for purposes different from those which I understand the warranty to have in view, namely, the work usually carried on by day. COLERIDGE, J.: This plea is bad, if it can be true consistently with no breach of the warranty having been committed. Now, construe the warranty by the rest of the policy. The policy is on the machinery of cotton mills; the warranty, therefore, is against the manufacture usually carried on in the mills being carried on by night. The plea does not say what the work was which was done by night, but simply that a part of the mills was worked. It might not be necessary to show that every part of the machinery worked by night; but the plea ought to show that so |