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![handle is hein.slavery/ssactsengr0153 and id is 1 raw text is: 3 EL. & EL. 476. SINCLAIR V. MARITIME PASSENGERS' INSURANCE CO. 521
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 5001., or deposit
that sum with the master, to abide any order the Court might make as to indemni-
fying 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-
[476J-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 ques-
tion. 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 (3 Bligh, 0. S. 153) two cases are
reported in which, under circumstances very similar to the present, such orders were
made. In Earl of Lonsdale v. Curwen (3 Bligh, 0. S. 168, note) 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 (3 Bligh, 0. S. 172) the defendants had, in working their own mines, either
bonAi 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 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 [477] that
respect, the order now complained of. In the recent case of Ennor v. Barwell (1 De G.
F. & J. 529) 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 (3 Bligh, 0. S. 168, note), or Walker v. Fletcher (3 Bligh,
0. S. 172). 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 (3 Bligh, 0. S. 172). This being our opinion, the rule must be discharged.
Rule discharged.
[478] SINCLAIR, Administratrix, against THE MARITIME PASSENGERS' ASSURANCE
COMPANY. Monday, January 14th, 1861. Defendants, a Company established
for granting assurances against loss of life and personal injury arising from
accident at sea, granted a policy to S., the master of a ship then about to proceed
on a voyage from England to Aden; whereby it was agreed that in case S.
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,
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
K. B. L.-17*](ViewImageLocal?handle=hein.slavery/ssactsengr0153&div=1&collection=&method=preview&ext=.png&size=3)