Mayall and Others against Mitford and Others
| Jurisdiction | England & Wales |
| Judgment Date | 02 May 1837 |
| Date | 02 May 1837 |
| Court | Court of the King's Bench |
English Reports Citation: 112 E.R. 258
IN THE COURT OF KING'S BENCH
S. C. 1 N. & P. 732; W. W. & D. 310.
[670] mayall and others against mitford and others. Tuesday, May 2d, 1837. 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 iion obstante veredicto, as not shewing a breach of the warranty. [S. C. 1 N. & P. 732; W. W. & D. 310.] 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, than 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 [671] 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 (a) See the preceding case. 6 AD. SB. 6. MAY ALL V. MITFORD 259 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...
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