IMAGE EVALUATION TEST TARGET (MT-3) t 1.0 no [28 |2^ I.I m m m M21 lU 12.0 |j;25 |U |I4 6" Photographic Sciences Corporation 23 WIST MAIN STRtET V«IDSTR,N.Y. 14SM (71*) •72-4503 CiHM/ICMH Microfiche Series. CIHIVI/ICIVIH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historlques Technical and Bibliographfc Notes/Notes techniques et bibliographiques to The Institute has attempted to obtain the best original copy available for filming. Features of this copy which may be bibliographically unique, which may alter any of the Images in the reproduction, or which may significantly change the usual method of filming, are checked below. D Coloured covers/ Couverture de couleur r~~\ Covers damaged/ D Couverture endommagde Covers restored and/or laminated/ Couverture restaurde et/ou peiiiculde r~] Cover title missing/ Le titre de couverture manque I I Coloured i-naps/ D D a D Cartes gdographiques en couleur Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ Relid avec d'autres documents Tight binding may cause shadows or distortion along interior margin/ La reiaure serr^e peut causer de I'ombre ou de la distortion le long de la marge int^rieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajout6as lors d'une restauration apparaissent dans le texte, mais, lorsque cela 6tait possible, ces pages n'ont pas 6t6 filmdes. Additional comments:/ Commentaires suppl6mentairdS: L'Institut a microfilm^ le meilleur exemplaire qu'il iui a Ati possible de se procurer. Les details de cet exemplaire qui sont peut-dtre uniques du point de vue bibliographique. qui peuvent modifiei une image reproduite. ou qui peuvent exiger une modification dans la mithode normale de filmage sont indiqu6s ci-det^ous. □ Coloured pages/ Pages de couleur D D D D D This item is filmed at the reduction ratio checked below/ Ce document est filmi au taux de rMuction indiqui ci-dessous. Pages damaged/ Pages endommag6es Pages restored and/or laminated/ Pages restaur6es et/ou peiliculdes Pages discoloured, stainod or foxed/ Pages d6color6es. tachet^es ou piquues Pages detached/ Pages ddtachdes Showthrough/ Transparence I I Quality of print varies/ Quality indgale de I'impression Includes supplementary material/ Comprend du matdriei suppi^mentaire Only edition available/ Seule Edition disponible Pages wholly or partially obscured by errata slips, tissues, etc., have been ref limed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d 'errata, une pelure, etc.. ont 6X6 film6es I nouveau de fapon 6 obtenir la meilleure image possible. Tl P< o1 fil Oi b< th sii ol fil sii Ol Tl si Tl w M di ei b^ rll re m 10X 14X 18X 22X 26X '■. r. ':^r--': -■'■ 30X :j r • 12X 16X 20X 24X 28X 32X ^pglpp^ The copy filmed here hes been reproduced thenks to the generosity off: Yoric University Law Library L'exemplaire film6 ffut reproduit grAce A la g6nArosit6 de: Yoric Univarsity Law Library The images appearing here are the best quality possible considering the condition and legibility off the original copy and in keeping with the ffilming contract specifficatlons. Les images suivantes ont AtA reproduites avec le plus grand soin, compte tenu de la condition et de la nettetA de I'exempiaire tilmA. et en confformit6 avec les conditions du contrat de ffilmage. Original copies in printed paper covers are ffilmed beginning with the front cover and ending on the last page with a printed or Illustrated impres- sion, or the bacit cover when appropriate. All other original copies are ffilmed beginning on the ffirst page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. The last recorded fframe on each microffiche shall contain the symbol —»-( meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Les exemplaires originaux dont la couverture en papier est imprim6e sont ffiim^s en commenpant par le premier plat et en terminant soit par la derniire page qui comporte une empreinte d'impression ou d'illustration, soit par le second plat, salon le cas. Tous les autres exemplaires originaux sont ffilmte en commenpant par la premiere p^ge qui comporte une empreinte d'impression ou d'illustration et en terminant par la derniAre page qui comporte une telle empreinte. Un des symboles suivants apparattra sur la dernidre image de cheque microfiche, selon le cas: le symbols — ► signifie "A SUIVRE ", le symbols V signiffie "FIN". Maps, plates, charts, etc., may be ffilmed at diffferent reduction ratios. Those too large to be entirely included in one exposure are ffilmed beginning in the upper iefft hand corner, lefft to right and top to bottom, as many fframes as required. The ffollowing diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent dtre ffilmte d des taux de reduction diffff^rents. Lorsque le document est trop grand pour dtre reproduit en un seul clich6, il est ffiimd d partir de I'angle sup6rieur gauche, de gauche d droite, et de haut en has, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la m6thode. 1 2 3 1 2 3 4 ■" *. ■ ■ ■ "■■?■,- ." -■.:-. 5 6 ' •JT- M' ^ibison nn ^Lcrta. A TREATISE fT^'-i'OtJ ON WRONGS ^N'> ^"--'^ REMEDIHS SIXTH EDITION. By HORACE SMITH, Kdiliir of " Addinoii on Contractu," " IIoscoc'h Criminal Evidence," and Author of " A Treatise on the Laic of Negligence," dr. WITH AMERICAN NOTES By H. G. wood, Author of TrfittiiieK on tho [,inr of Railways; of Limitations ; of Nuisances," etc., elr. IN TWO VOLUMES. Vol. I. : 'I'aiilk of Casks and pp.' 1-4()8. Vol. n. : Paokb 469 TO End. TORONTO : CARSWELL & Co., %'m i3ubli6hcrs, /X/j 1890. . ..';.-: ^W^^^B-^^^ai u. Ti T. m re C( Ii IK (*i 11 ^ PHEFAi'E TO THE AMERICAN NOTES. Tiii>K notes to tli(! Sixth Edition of Addison on Torts cover as fully as would seem dcsiral)lo the most difficult phases of the topics to which the text relates, and point out the distinction between the Common Law Rules in America and in England. In instances where the English authorities are not numerous, conlirmatory American decisions are cited. A separate Index of American Cases has been added. Where any i)ortion of the text is not applicable in America, a note calls attention to the fact. The pagination of the English Edition is denoted by the black type [109], to which i)ages the Table of Contents, Index of English Cases, List of Statutes, and the General Index refer. II. G. WOOD. New York, Junuury, 1887. PEEFACE TO THE SIXTH EDITION. Considerable changes have been ofE?cted since the Fifth Edition of this Work was published in 1879, particularly in the law relating to " Bankruptcy," " Bills of Sale," " Bills of Exchange," and " Married Women." The arrangement adopted in the last Edition appeared to be incapable of improvement, and only to admit of development. The nature of the right infringed has been taken as the basis of the arrangement. The first five chapters are general and preliminary. The first deals with the Nature of Torts generally. The second, which is a new chapter, treats of the Justification of Torts, indicating the five different ways in which a tort may be justified, viz., (1) by showing that the act was done in defence of person or property, (2) under legal authority, (3) by tlie leave and license of the plaintiff, (4) that it was the result of an inevitable accident, (5) that it was caused by the act of the plaintiff himself. Tlie third chapter treats of the Discharge of Torts, or the different modes in which the responsibility of a wrong-doer can be determined. The fourth chapter is devoted to the different Remedies for Torts, as by "abatement," "distress damage feasant,''^ or "action" (including injunction) ; while the fifth disposes of ques- tions arising from the Status or Condition of the Wrong- doer, such as the liability of corporations, infants, mar- ried women, and lunatics, for their own torts; or that VI I'K'Ki'Aci: I'o Tin: .sixrii kijitiox. of piincIpalH, ina.stor«, and owners of uniniuls for tlio injurious acts of tlioir agents, servants, or cattle. Tlio consideration of particular torts is bo^un in the sixth chapter v.ith those torts which interfere with Rights of I'ersoiud Security and Liberty. The seventh chapter deals with Injuries to Rights of Reputation, and is di- vided into two sections, the first relating to defamation of character, and the second to nudicious prosecution, wliicli is in its nature prinuirlly an injury to reputation, although it also often involves an infringement of the right of personal liberty. The eighth chapter is devoted to the consideration of Injuries to Rights of Propei'ty, which are subdivided into riglits of property generally, rights of property in land, rights of })roperty in movables, and rights of property not having a corporeal object, such as copyright, patent right, &v. 'i'lic ninth chapter deals ■with Rights arising out of the Domestic Rclatums, such as the riglits of a master with relation to his servant, a husband to his wife, (u- a i)arent to his child, as against third ])ersons, and the right to compensation conferred by Lord Campl)oirs Act on the families of persons Avrongfully killed. In the tenth chapter Lijuries to l^iblic HIghts are considered, so far as, by reason of any special and particular danuige thereby caused to an indi- vidual, they arc private Avrongs. The eleventh chapter treats of the Duties of Public Officers, especially judicial officers and ministerial officers of justice. The twelfth chapter is devoted to the subject of Fraud, which, although a tort in the sense of being a wrong inde- pendent of contract, yet in many respects resembles a breach of contract, and forms a connecting link between torts and implied contracts. The thirteenth chapter deals with Statutory Compensation. The fourteenth with Notice of Action ; and the fifteenth, and last, with Costs. I'KKFACK TO Tin: SIXIII FDITIOX. VI I The result of tliis armngenient is that the consideration of the riods, and of the l)ower of landlords to distrain for rent, is rele<^ated to the 'i'reatis(! on " The Law of Contracts," by the same Author, where these subjects are already more or less fully discussed. It is hoi)ed that the })rcsent Edition may not be found to have fallen behind its predecessors in accuracy and utility : and notwithstanding- the intro- duction of many new Cases and Statutes the present Volume has, by the excision of obsolete matter, been kept Avithin as reasonable bounds as nuiy be, only ex- (u^edin^ the last Edition by sixty-four pages. The Statutes and Cases have been brought up to and inclusive of the December Number of the Law lleports, 188G. References are given to the Law Journal as well us to the Law Reports. The General Index has been considerably amplified. The Editor's thanks are due to the Hon. Mr. Justice Cave for many valuable notes of which he has permitted tlie Editor to make use. The Editor has received the greatest assistance throughout the preparation of this Edition from his friend Mr. A. P. Perceval Keep, of the Midland Circuit, whose industry and knowledge have materially lightened the labour of editing a Work of so wide and varied a character. H. S. Inneb Tbkple, Jnnuarij, 1887. m ''^'■^f''^ EXTRACT FROM THE PREFACE TO THE FIRST EDITION. To those readers who are unacquainted with English law terms it may be desirable to explain, that the word Tout, handed down to us from our Norman jurists, is used in our law at the present day to denote a civil wrong, for which comiiensation in damages is recoverable, in contradistinction to a crime or misdemeanour, which is punished by the criminal law in the interests of society at large. Every invasion of a legal right, such as the right of property, or the rights incident to the possession of property, or the right of personal security, constitutes a Tort ; and so does every neglect of a legal duty, and every injury to the person, or character, or reputation of another. The Law of Torts, or civil wrongs, therefore, having for its object the protection of our property, and the security of our persons and reputation, is a branch of law of general interest and importance; and there are few persons of any property or station in the country to whom some knowledge of it does not become essential at some time or another, either for the purpose of main- taining themselves in their just rights, or for the purpose of ascertaining the nature and extent of their legal duties and responsibilities. PKKFACH TO THK FIRST EDITIOX. Torts, it has truly been observed, arc infinitely various ; and it -would be an endless task to enumerate all the wrongs of which the law takes cognizance, and in respect of whicli rcdross, in the shape of compensation in daniati-es, is afforded. It is not intended to trout herein of all civil wrongs of every sort and description, but of such wrongs and injuries to property, to the per- son, and to reputation, as constantly occur in the ordi- nary intercourse of mankind, and daily occupy the attention of the lawyer : such as wrongfnl infringements of the rights and privileges incident to the ownership and possession, and use and enjoyment, of landed property ; nuisances and injuries ari'ing from the negligent use and numagemont of such i)ropcrty ; injuries to lands and tenements from waste, negligence, and fire ; injuries from trespasses and unlawful entry on land, in dis' turbance of the possessory and proprietary rights of occupiers and landlords ; wrongful seizure and conversion of chattels; injuries from the negligent use and manage- ment of chattels, and tlie negligent performance of work; injuries from negligence and breach of duty on the part of bailees, common carriers, and common innkeepors ; wrongful distress and sale of things distrained ; assault and battery, and wrongful imprisonment ; malicious arrest, malicious prosecution, and malicious abuse of legal process ; trespasses and injuries conmiitted in the execution of void or irregular legal process, or in the execution of warrants and orders of justices; injuries resulting from the exercise, or intended exercise, of statutory powers and authorities : injuries from libel and slander ; fraudulent misrepresentation and deceit ; frau- dubnt concealment, breach of warranty and false pre- tences ; matrimonial and parental injuries ; adultery and seduction. PREFACE TO TlfE FIKST EDITION. XI In the following Treatise the Author has endeavoured to present to the reader an aceurate view of the present state of the law on the subjects treated of, without burtheninc,^ his mind with technical legal learning ^yhich is now obsolete, or unnecessarily peri)lexing his judg- ment w>h contradictory and conflicting decisions; and it is hoped that the task has been faithfully and carefully accomplished. i Innee Temple, June, 1860. i CONTENTS. NOTE.— The paging refers to the black type [288], ■which is that of the English Edition. i ■s J TAGB Pbeface to the American Notes iii Preface to the English Edition v Contents xiii Index of English Cases xxxix Index of Ameuicvn Cases Ixxxv List of Statutes cited xcv CHAPTER I. The Nature of Torts. Sect. I. — T/>e tcrongful act. Definition of a tort ...... Eights Private Eights Eights of personal security and liberty Eights of reputation Eights of property Eights of trading Eights of contract . Eights arising out of domestic relations Public rights .... Actions for a public nuisance Breach of a public duty Public officers . Statutory rights and duties . Torts founded on contract Conflict of rights Infringement of rights . Accident .... in doing an unlawful act in doing a lawful act . Negligence Contributory negligence Identification of the passenger driver with his 1 3 3 3 4 5 7 9 10 10 10 12 13 15 15 17 17 17 17 18 20 23 26 XIV CONTENTS. I. Skct. I. — The wnmyfid acl — continued. Malieo ...••••• !^^aHci()us assertion of a legal right . Malicious and unfounded actions . Actions in the name of a pauper . Champerty and maintenance . Maliciously issuing execution Malicious jirosecution by Court Martial Continuing injuries ISIoney obtained by fonio .... (Statutory exemption from liability .... Nuisances from railways .... Nuisances from canals TAriE 27 29 29 29 29 ;30 ;31 32 32 34 3G 37 Sect. II. — T/ie damaye. AVrong without damage Legal damage Remoteness of damage 38 38 40 CHAPTER II. TiiK Justification of Torts. ISeot. I. — Defence of person or property Sect. II. — Leycd authority .... Sect. III. — Leave and license .... Sect. IV. — Ineritahle accident Sect. V. — Act of plaintiff himself 47 49 50 50 51 1 CHAPTER III. The Discharge of Torts. Discharge by the act of the parties . Waiver ..... Accord and satisfaction . Discharge by operation of law . Judgment recovered Continuing injuries Double remedy Discharge by death . Death of the person wronged Continuing injuries Death of the wrong-doer . 52 52 52 54 54 56 57 57 .58 59 CO CONTENTS. XV Chap. III. — Tin- Dischurye of Torts — continued. Discharge by mnrriage Marriage of a woman who has been wronged . MaiTiagG of a female wrong-doer Discharge by })ankruptcy ..... Bankruptcy of the person wronged Transfer of the bankrupt's wife's vhoses action ....... Bankruptcy of tho wrong-doer The Statutes of Limitation Commencoment of tho period of limitation . I'^xtension of the period in certain cases . For acts done under local and personal statutes For acts done under Municipal Corporations Act in 02 02 63 64 04 O.J 00 6() 08 69 6!) 70 i i CHAPTER IV. Of Hem EDI es. Sect. I. — Aha lenient .... Sect. II. — Distress .... Sect. III. — Action ..... No wrong Avithout a remedy Suspension of the remedy Joinder of plaintiffs in actions . Persons jointly interested Husband and wife The damages ..... Special damages . Costs of legal proceedings Medical expenses . Prospective damages Exemplary and vindictive damages Mitigation of damages AV^here the plaintiff is insured Double and treble damages Disproportionate damages . Excessive damages . Inadequate damages Specific delivery of chattels Assessment of value Assessment of damages . Where the goods have been returned Injunction In what cases granted In cases of threatened injury Effect of delay . Effect of acquiescence 71 72 72 73 70 70 76 77 78 78 79 79 80 81 82 84 85 8o 85 87 88 88 89 89 90 90 91 92 92 • -. I I Hi' Xvi COXTKNTS. CHAPTER V. Of Tort-feasors. Joint tort-fonsors Judgniont recovorod against ono Dnmngos . Contribution between Principal and ngent . Liability of the principal Express authority Subsequent ratification Liability of the agent Master and servant Liability of tlio master Owners of carriages BoiTowers of carriages Shipowners Contractors and sub-contractors Scope of the employment Liability in the case of fellow-servants Employers Liability Act . Liability in the case of vohmteers Liability of the servant .... Corporations Foreign corporations .... Infants ....... Man'ied women Lunatics ....... Public officers Eioters Crowds Liability of the person collecting them Animals Cattle and domestic animals Trespasses from defect of fences Injuries by intruding dogs . Animals yera; natural Eabbits and pigeons . Ferocious animals .... The scienter .... Torts committed in foreign countries Ambassadors FADE 94 94 95 96 96 96 96 97 98 99 99 101 102 102 103 107 110 110 115 116 117 121 121 122 124 125 126 128 128 128 128 129 131 132 132 132 134 135 136 F^H CONTENTS. xvii CHAPTER VI. Injuries to the Pehson. Bights of personal security and liberty Infringement of rights of personal security /^ssault Battery .... Mayhem and wounding Assault without design Justification .... Self-defence. Defence of property . Spring guns . Defence of neighbours and friends . Correction by parents, schoolmasters, &c Preservation of the peace . Hearing and dismissal by magistrates . Infringement of rights of liberty False imprisonment .... Justification Arrest under legal process . Arrest of the wrong person Arrest in execution of warrants of justices . Arrest without warrant Arrest on suspicion of felony Keasonable and probable cause . Arrest for a misdemeanor .... Arrest to preserve the peace What is a breach of the peace Arrest under the Larceny Act . An-est for malicious injuries to jiroperty Arrest of persons committing offences in the night time ....... Arrest of persons disturbing divine service . Arrest of vagrants, &c. .... Arrest under the Merchant Shipping Act Arrest by servants of railway companies . Arrest by order of a judge . Malicious arrest Detention of recruits and deserters Imprisonment of dangerous lunatics Arrest of a principal by his bail . Bemedies for injuries to the person . Bamedy by action Damages .... Damages too remote Mitigation . PAGE 138 138 138 139 139 140 140 140 141 143 144 145 145 145 147 147 148 149 151 151 151 151 152 153 154 155 156 156 157 157 158 158 158 159 160 162 162 163 163 163 163 164 165 XVlll CONTKNT.S. CIIArTER VII. Injiuies to Reputation. Skct. I. — Defamntlon of character. PAGE Distinction botwocn slander and libol . . . .166 AVlmt is a lihol 168 What is slander 169 Dofnmntory words actionable per se . ..171 Words imputing nu indictable offence . 171 AVords iniiiutiug a contagious disorder . . 172 Defamatory words of tradesmen as such . 172 Defamatory words of professional men as such 172 Words imputing misconduct in an office . 175 Defamatory words causing special damage . . 175 AVhcre the damage is the wrongful not of a third person . . . . . .177 Unauthorised repetition of defamatory words 179 False statements not defamatory 1 80 \>- m' Malice in law 180 Privilogod communications . . . . . 181 Commimictttions absolutely privileged . 181 Proceedings in Courts of Justice . . 181 Statements of witnesses . .181 Statements of advocates . . . 182 Comments by judges and magis- trates 183 Communications privileged when not ma- licious 184 Extent of the privilege . . .186 ^ond/f/e charges of felony . " . . 187 Petitions to the Queen, Parliament, or Ministers 187 Statements by public officers in dis- charge of their duty . . . . 188 Communications from clergymen to their parishioners . . . .189 Complaints of clergymen to bishops . 190 Communications between relatives re- specting marriage . . . . 190 Communications between friends to pre- vent an injury 191 Communications between persons re- specting their pecuniary interests . 192 Investigations set on foot by the plaintiff 193 Sifefitkj' CONTKNTH. XIX Sect. I. — Defamation of character — continued, FAOB Privilogod coTniuunicationH — continued. Coramunica*' »U8 botweon Bubscribors to ohuritios . . . . . . 194 Communications respecting the cha- ractnr of servants . . . . 1 94 Comments in excess of the privilege . 19G Reckless and inconsiderate communi- cations 197 Communications to the wrong person . 197 Matters of public interest . . . 197 Reports of trials . . . .197 Reports of ex parte state- ments . . . , . 198 Reports of proceedings in Par- liament . . . . .199 Reports of proceedings nt public meetings ..... 200 Reviews and criticisms . . .201 On sermons and clergymen . 203 On the public character of public men . . . 203 On matters of public and national interest . . 203 Disparagement by a tradesman of his rivals 204 Malice in fact 205 Interpretation of the words used .... 206 Evidence of surrounding circumstances . . . 207 Proof of subsequent libels 208 Province of the jury 208 Application of the words to the plaintiff . . . 209 The publication 209 Publication in newspapers . . . .211 Singing libellous songs 212 Justification 212 Truth of the charge 212 Discharge 213 Apology and payment into Court . . . . 213 Remedies 214 Action 214 Parties 214 The damages 214 Mitigation of damages . . .215 Libels by the plaintiff or the defen- dant 216 Offers of an apology . .216 Inadequacy of damages . . . 217 Injunction 217 b2 XX CON'rKNTS. Sect. l.—Jh/aimtion of vhnnivttr— continued. \\\w rcsponsil)!!) for . Joint libi'llci'M . I'riiiciiml ftud ngont Corporations Sect. W.—Malklous prosecution. Tho prosecution Indictmout Informations before magistrates . lleasonablc and probable cause Malice Tonnination of the prosecution The remedy Action Tho daniogcs .... Mitigation of damages Who responsible for ..... Principal and agent Corporations ..... Maliciously procuring a search-warrant . Malicious exhibition of articles of the peace Malicious proceedings in bankruptcy Malicious presentation of a winding-up petition rAOB 217 218 218 218 219 220 220 221 225 229 229 229 230 230 231 231 231 232 232 233 233 CHAPTER VIII. Injuries to Eights of Property. Hi • I il m i \ Sect. I. — Injuries to riyhls of property generally . Kinds of rights of property . 234 Transfer of rights of property . 234 Transfer by marriage . 234 Immovables . 234 Marriages before 1883 . 234 Marriages since 1883 . . . . . 235 Movables . 235 Marriages before 1883 . . . . . 235 Marriages since 1883 .... . 236 Fruits of the wife's labour . . . . . 236 Eights of wives after a judicial separation . 237 After a dissolution . . . . . 237 After desertion . 237 Transfer by bankruptcy .... . 239 Onerous property . 239 Disclaimer of leaseholds . 239 CONTENTS. XXI Sect. I. — Injur Ira to riyhts of property (jmeralli/ — conti'nurd. rAOK TraiiBfcr by l)finkrui)tcy — ronti'nurd. DcalingH with tlio Ijniikrupt witliout uotieo . 242 Aftor-nt'(iuiro(l projjorty ..... 245 Annulment of adjudication . .... 240 Voidal)lo transfers ....... 240 Fraudulent trnnHfors . . . . . . 247 Absenco of a valuation .... 248 Inadequacy of price . . . . . 248 Transfer of possession .... 249 Voluntary transfers . . . . . . 240 Avoidance by creditors .... 24!) Avoidance by subsequent purchasers . . 250 Avoidance by trustees in })ankrupt(ty . . 252 Transfers ccmstituting an act of bankruptcy . 253 Transfers to trustees for creditors . . 253 Transfers void against creditors . . . 253 Transfers of all the debtor's property . 253 Fraudulent transfers 253 Fraudulent preferences .... 250 Fictitious transfers ....... 257 Injuries to rights of property by words spoken . . 258 Slander of title 258 Sect. II. — Injuries to r'ltjhts of property in land. Eights of property in land 260 Acquisition of rights of property in land . . . 261 Title by occupation . . . . . .261 The Statutes of Limitation . . . . 262 AVhat is a loss of possession . . 262 Occupation by poor relations or servants 263 Occupation by a tenant at will . . 263 Occupation by tenants from year to year 264 Wrongful receipt of rent . . . 265 Possession of a co-parcener, joint tenant, or tenant in common . . 260 Possession of a younger brother or re- lation 266 Occupation by bond fide purchasers of trust estates 266 Acknowledgment of title . . . 267 Entry upon land and continual claim . 267 Disabilities 268 Concealed fraud 269 Ecclesiastical and Eleemosynary Cor- porations 269 Title by descent 269 Title by purchase 269 I xxu CONTHNT8. •1' 8kct. U.— Injuries In riyhts of property in land— continued. ServituiloH DiviHiouH of HorvitudoH .... Nuturiil HcrvitudoH lliglits of wator .... AVutor ill watorcoursos . \\'\^\\i to U80 tho water Itif^ht of dmiiuigo . IJiglits on navigable rivers . Water in wells .... night of support .... Transfer of natural servitudes Extinction of natural servitudes Conveu*ional servitudes .... Kinds of conventional servitudes Profits il prendre .... Rights of common Conmion appendant Common appurtenant . Common of sliack . Common pur cause de vicinaye Common in gross Eights of pasturage Common of turbary . Common of estovers Eight to got minerals Eights of sporting Free warron . Eight of fishery . Several fishery Common of fishery Easements Eight of way Deviations extra viam Eepair of way Eights of water Eepair of water-courses Eight to a fence Sea-walls Eight to light Eight to air ... Eight to freedom from noise . Acquisition of conventional servitudes Express grant .... Eeservation Eeservation of part of land not of ease- ment .... I'AUK 270 271 271 271 271 271 274 275 270 277 279 280 280 283 283 283 283 285 285 28G 286 287 288 288 289 290 290 291 291 291 292 292 294 294 296 296 296 297 298 298 298 298 298 299 300 CONTENTS. XXlll ni Bkct. lJ.—-JtiJuri'vt to riyhtH of projurly in land — continued. AccjuiHition of Lonveiitiutial Horvitudcs — cont. I'aok Iinjilit'd j^niiit or roMorvation . .301 IJight of wutoi- . . . . 302 Right of way . . . .303 Way of necessity . . . 303 Kiglit of support . . . .304 Mutual H\ipport of adjoining buildingH . . . . 305 llight to liglit and air . . 300 Revival of extinguished Hervitudes . . 308 Licenses ...... 309 Liabilitiec of the licensor . . 313 Negligent numugement of docks and wharfs . . . 316 Negligent management of canals 316 Negligent management of railway gates . . . 316 Negligent management of railway stations . . . 317 Prescription . . . . .319 The Prescription Act . . . 322 Application of tho Act . . 324 Rights of way . . . 327 Rights of water . . 328 Right of support . . 331 Adjoining houses . 331 Right to u fence . . 331 Right to light . . 331 EflFoct of unity of possession . . 333 Enlargement of win- dows . . .334 Interruption of enjoyment . 334 Persons under disability . 337 Lands demised for life or years . . . 338 Custom 340 Manorial customs . . . . 342 Tinbounders in Cornwall . . 344 Statute 345 Allotments under Inclosuro Acts . 345 Rights of navigation comparies . 345 Railway fences .... 346 Transfer of conventional servitudes . . 347 Extinction of conventional servitudes . 350 Release 350 XXIV CONTENTS. noisome trade Sect. II.— Injuries to rights of property in land— continued. Extinction of conventional BervituC'es— co?i/. Abandonment Disuse of rights of way . . . Disuse of rights of water Disuse of right to light . . . Merger by unity of ownership Destruction of the dominant tenement . Encroachment . . . . . Alterations in windows . . . Non-porformanco of conditions . Ways of necessity Trespass Abuse of a license Continuing trespasses Nuisance .... Continuing nuisances Non-repair of drains Offensive smells Noisome trade Prescriptive right to exorcise Noise ... Nuisances from water Flooding of mines Damage from fire Fire from railways Fire from the negligence of servants Damage from explosive substances Eosponsibility for nuisances Liability of the occupier LiabiUty of the owner Injuries to profits 4 prendre and easements . To rights of common To rights of water .... Defilement of water . Disturbance of permissive user To right of support .... Negligent excavations To right of light Justification .... Liberum tenementutn Legal process Self-defence .... Leave and license Bemedies Action .... Damages .... Wilful and malicious ti'espassee PAGE 351 352 352 353 353 356 357 358 359 359 360 361 361 361 364 364 365 365 367 367 368 369 370 373 373 374 374 374 375 377 377 378 378 378 379 379 379 380 381 382 383 384 385 385 385 386 CONTENTS. XXV Skct. II. — Injuries to rights of property in land — continued. Eemedy by actiou — continued. Trespasses in dwelling-houses Injury to building .... Digging coal Mesne profits For nuisances Injunction .... To prevent trespasses To prevent nuisances . Against Local Boards Acquiescence To prevent obstructions to light To prevent obstructions to right Entry Abatement Of nuisances upon commons . Arising from excessive user of ri Distress damage feasant On lands adjoining highwaj's . What may be distrained Tender of amends Sale of the distress Duties of pound-keepers . Di'-asion of rights of property in land . Possession Disseisin and re-entry . Tenant and reversioner . Bights against strangers Damages .... Injunction .... Eights against each other . Waste As to trees . As to deer Equitable waste . Waste by trustees . Ecclesiastical dilapidations Waste by copyholders . Bemedies for waste . Injunction Effect of delay Joint tenants and tenants in common . Buinous party- walls . Bighte of the survivor . Bemedies against each other Injunction .... of way ghts, FAQE 386 387 387 388 388 390 390 391 393 393 S94 395 395 396 S97 397 398 399 400 401 402 403 403 404 406 407 411 411 412 412 412 414 416 416 417 418 420 421 421 423 423 425 426 426 426 XXVI CONITNTS. y Sect. II. — Injuries to riyhts of property in land — continued, Rights of property in special cases . Ownership of minerals Support from the subsoil . Injunction to restrain disturbance Jnguardocl wells and shafts Miner? Is under railways and canals Separate ownership of different floors Church, cha.icel, and churchyard . Seashore and bed of navigable rivers Waste land adjoining the seashore Bed of rivers and fresh-water lakes . Soil of turnpike roads and highways . Waste land adjoining highways Soil of private ways .... Towing-paths tnd banks of rivers . Boundary walls and fences . Ditches and hedges . Trees and bushes .... Trees in boundary fences . Sect. III. — Injuries to riyhts of property in chattels. Eights of property in chattels .... Acquisition of rights of property in chattels Title by finding .... Title by accession .... Gift Donatio mortis causd . Purchase Sale in market overt . Sale of stolen goods Eight of restitution Private sale .... Insolvency of the purchaser Avoidance on the ground of fraud Bill of sale Construction of bill of sale .... After-acquired property Eogistration What documents require registration What are personal chattels . The inventory The attestation .... Mode of registration The affidavit . . . . ' ] Description of the grantor and • • • • witnesses PAGE 426 426 427 429 429 430 433 434 437 438 439 440 442 442 443 443 445 445 445 446 446 446 447 448 448 449 449 451 451 452 455 456 456 456 459 460 461 463 463 464 464 465 465 CONTENTS. XXVU Sect. III. — Injuries to rights of property in chattels — continued, page Bills of sale — continued. Kenewal of registration . . . 467 Eectification of the register. . . 468 Evasion of registration . . . . 468 Priority of bills of sale .... 468 Effect of non-registration . . . . 469 Goods in the possession of the grantor . 469 What is possession . . .469 What is apparent possession . . 469 Seizure of goods under bill of sale . . . 470 BUls of lading 471 Delivery of documents of title .... 472 Transfer of chattels in the hands of bailees . . 473 Transfers by factors 473 SlIos by factors 474 PledT^es by factors 474 What are documents of title . . . 476 What is an intrusting . . . _ . 476 What pledges are within the Act . . 478 Revocation of the factor's authority . 479 Transfers by vendors after a previous sale . 479 Transfers by purchasers without title . . . 479 Title by estoppel 480 Transfer by death 481 Title of an administrator . . . .481 Recovery of judgment 481 Seizure and sale by the sheriS . . . .481 Execution on the goods of bankrupts . . 482 Garnishee orders 482 Bankruptcy 483 Order and disposition 483 "Goods" 484 Possession of the bankrupt . . . 484 Commencement of the bankruptcy . . 486 Reputed ownership .... 487 Goods once owned by the bankrupt 488 Goods sold by the bankrupt . 490 Registered bill of sale . 492 Goods never owned by the bank- rupt 492 Possession by manufacturers, workmen and depositaries . 494 Possession by factors . . 495 Possession by bankrupt trustees 496 Possession by a bankrupt husband of the wife's pro- perty 497 .i%(u i I XXviii CONTENTS. Sect. III. — Injuries In rights of property in ^attels— continued. i'AOB Injuries to rights of property in goods . . 498 Trespass . . 498 Conversion . 499 Destruction of goods .... . . 501 Pisposnl hj' purchasers without title . 502 Innocent bailees . . 502 Demand and refusal . 502 What sufficient .... . . 503 Qualified refusal .... . 504 Goods not in the defendant's possession . 505 Claim of lien . 505 Goods in the hands of public officers, servants, or bailees . . . 505 Conversion of goods by railway companies . 507 Detention . . 507 Injuries to animals . 508 Eemedies . . 509 Action . 509 Damages . . 509 Conversion of bills and notes . 512 After return of the goods . . 513 Damages in the nature of interest . 513 Special damages .... . . 513 Seizures under the Customs Acts . 514 Injunction . . 514 Eeplevin . 515 Goods taken under justices' warrants . . . 517 Damages . 517 Recaption . . 517 Of the wrong-doer . 518 Joint conversion . . 518 Conversion by an agent or servant . . 518 Conversion by married women , . . 519 Division of rights of property in goods . . 519 Special property . . 520 Reversionary interest .... . 520 Possession 521 Constructive possession .... . 522 Damages . . 523 Joint tenant and tenants in common . 524 Eights against third persons . . 524 Eights inter se . 525 Eights of property in particular chattels . . 626 Fixtures • • . . . 526 Transfer of fixtures .... . . 529 Severance of fixtures . 5.11 Damages • • . . . . 531 CONTENTS. XXIX Sect. III. — Injuries to ritjhts of properly in chattels — cont. Eights of property in particular chattels — continued. Growing crops Right to compensation for improvements Ships Grants of arms, title deeds, and leases Documents an'l s^ "os for n)onoy Letters Bills, notes, and cheques Animals ytv GS.'i G8G G87 G88 G89 GOO GOO GOl 692 G92 G94 09 OOi-i COO 700 701 701 702 702 703 703 704 705 706 706 707 707 707 707 709 709 709 709 711 712 713 713 CONTENTS. XXXV f, ' CirAi". XI. — Dutieit of Puhlif Officers — continued. Tho Iligli Bailiff of tlio (Jouiity Qowri— continued. paob Liins iSpocific performance . Estoppel Who rcspon8il)lo for Fraud hy an agent Joi;)t stock comjmuies L'..iMlity of tho agent . Fraud oy infants Fraud by married women . I'AUK 7ai) 7.31 731 735 730 730 737 737 737 738 739 739 739 739 743 71» 744 744 744 745 740 740 747 748 748 748 CHAPTER XIII. Of Statutouy Compenbation. Of statutory compensation .... Injuries giving a right to . Compulsory purchase of land . Buildings .... Mines Where no land has been taken . Land injuriously affected Interference with easements Interference with public rights 730 752 752 752 753 755 755 755 750 CONTKNTS. xxxvu ChaI'. XIII. — Of Stiitulorif Comprniinllim — rDHtinueil. Injiirii'H not ^iviii)^ a right to . Silt'iico of Htatiito ..... Injuries not iictionnblo .... LiuiiIh not contiguous .... Diuuiif^o to trado ..... Claim in caso of a1)an(loimicnt . Dauiaj^o arising from tlio working of a railway Row compcuHation is obtainod Notifo of tho claim ..... ABBCHsmont of damages .... Futuro danuigos ..... Remedy for 8ul)se'|uent, unforeseen damages Recovery of tlie amouTit assessed . Illegal assessment ..... Removal by certiorari .... l^Iandamus to make couipensation Injunction to i)revont unnecessary injury Injunction to prevent misuse of land Sale of superfluous land .... Right of itre-emption .... Comjjensation to tenants TAUE 757 757 757 758 758 759 759 760 700 760 702 703 701 705 705 700 708 709 771 771 773 CllAl'TEU XIV. Notice of Action. Notice of action ...... When required ..... To whom to bo given . • . Justices of the peace Constables ...... Revenue officers and tax collectors . Registrars and bailiffs of county courts Contractors under local boards, &c. Purveyors and persons acting under the Acts Corporations and companies In what kind of actions .... How given ...... Time for giving the notice Fonn of the notice .... Tender of amends .... Highway 775 775 777 777 778 779 778 779 780 781 781 782 782 783 784 xxxviu CONTENTS. CHAPTER XV. Of Costs. General rule as to costs Exercise of discretion In actions foi a collision ..... In actions triable in the county courts Distinction between contract and tort . Claim reduced by successful counter-claim Claim reduced by return of the goods sued for Money paid into court Causes referred The certificate Costs in particular actions .... Married women Patent cases ...... Actions against justices Actions against constables .... Things done in pursuance of statutes The Malicious Injuries to Prv^perty Act Double costs Costs in compensation cases .... FAQE 786 787 788 788 789 790 790 791 791 791 792 792 792 792 793 793 793 794 794 jjH«^/&di^.t.i. e 'ktiia INDEX OF ENGLISH CASES. NOTE.— The paging refers to the black type [288], "which is that of the English Edition. PAGE PAGE Aaron v. Alexander 126, 721 Allen V. Hayward . • 106 ,728 Abbott V. Godoy . 592 V. Hopkins . , 454 V. Macfio 25,43 V. L. and S. W. Rail. 119 V. Weekly . . 340 «'. Martin 391 Aberdeen Arc. Co. v, Sutter . 542 V. Sockham . 301 , 312 Abernotby v. Hutchinson . . 552 V. Taylor 307 Abiiigton V. Lipscomb . 503 V. Thompson . 466 Abloy V. Dale . 712, 788 V. Wright 152 Abrath v. North Eastern Eail AUoston V. Moor 174 Co 223, 232 Allison, In re . 681 Absor V. French 48, 637 AUsop V. AUsop 82 Ackland v, Payntor . . 691 All wood V. Hoy wood 535 Ackroyd v. Smith . 348, 350 Alsager v. Close 510 Acton V. Blundell . 27 6, 279 Alston V. Grant 365 Adam v. Bristol . 58 V. Scales 407 Adames v. Hallctt . . 250 Alton V. Harrison . 248 Adams v. Adams 594 V. Mid. Eail. Co. 582 V. Bafeald . 584 Amalia, The . 634 V, Broughton 481 Amann v. Damm 18*7 , 192 — — V. Cheverel . 58 Ambergate, &c. Rail. Co. V. V. Clementson 559 Mid. Eail. Co. 72 ,401 • V, Graham . 466 Amis V. Witt . 449 V. Lanes, and Yorks Amory v. Brown :34 Eail. 42 Ancaster v. Milling . 384 V. Nightingale ilo Ancona v, Rogers •469 -'•damson, Ex parte . 98 Andalusian, The 632 Addison v. Overend . 525 Anderson, Ex parte 515 Adlam v. Colthurst . 435 V. Buckton 130 Aga Kurboolie Mahomed 689 V. Oppenheimer 369 ,377 Agar-EUis, Inre . 595 V. Passman , 89 V. Lt.scoUes 595, 59 7, 598 Anderson's Trade Mark In re . 676 Agor V. Peninsular Telegr ^ph Andrew v. Boughey . 52 Co 550 Andrews r. Askoy . , 589 Agi-a Bank, Ex parte, lie Wor- V. Chapman , 198 cester .... 489 V. Marris 49, 1 25, ( 553, 683, Aitkonhead v. Blades 361 705 Albert (Prin"o) v. Strange 546 •-— r. Salt . 596 Alderson v. Davenport . 12 5, 711 Angcli ('. Baddeloy . , 706 Aldfod's Case . i, 302 Angle Erci.ch Co-operat ivo Aldred v. Constable 501 Soc, Ju re . , 702 Aldworth v. Stewart 145 Anglo-Swiss Co. v. Metcalfe 580 Alexander v. N. E. Rail. Co , , 49, Angus V. Dalton ^ 306 21 2, 218 Annapolis, Tlio ^ 633 V, Southey 505 AuTi Elliott, In the goods of 238 Alfred v. Farlow 171 Anon. (3 Atk. 644) . 652 AUam, Ex parte 46 1,470 (2 Chitt. 255) 645 Allan V. Gomme 294 (Cro. Eliz. 10) 373 AUanstm v. Atkinson 52 (Dyer, pi. 162) 131 Allen, Ex parte 241 (Keilw. 98, pi. 4) 433 V, Bonnett 255 (Lofft, 390) . 689 i ■ m It xl INDEX OF ENGLISH CASES. Anon. (C Mod. 73) . (5 Mod. 231) . 7 Mod. 8) . 11 Mod. 8) . 12 Mod. 521) (Poph. 38) . 2 KoUo's Rop. 2oJ) 1 Salk. 390) . 2 yiin. N. S. 54) (Skin. 110) . (3 AVils. 120) . V. Sabino Anthony v. Ilanoy . Applobeo /'. I'ercy . Appleby v. Franklin Arboiiin v. Anderson Arcedeckno v. Kolk . Archer v. lionnctt . V. Williams . Arkwright r. GoU . Arlett /•. Ellis . Armitago r. Jessop . Armory ?•. Delamirio Armstrong v, Lancushir Yorkshire Rail. Co. Armsworth v. S. lu Rail. Ai-mytago v. Haley . Arnal, A'.i: parte Arnold, J']x parte V. Blaker ■ V. liainel • V, Ilolbrook. V. "Woodhams Co. Arris v. Stukeloy Arthy v. Coleniiin , Arnndell v. I'hipps , r. Tregono V. Wuite , Ash V. Dawnay Ashby V. Hams V. White Asher v. Whitlock 27, Ashley v. Harrison . r. Taylor . Ashmolo V. 'VVainwright Ashmoro v. Hardy . Ashton, III re . V. Blackshaw V. Stock Ashworth r. Heyworth • V. Outram Aslin V. Parkor Aspden v. Seddon . Astley V. Reynolds . V. Yonngo , Aston V. Aston Atkins V. Kilby Atkinson v. Marshall »'. Newcastle & head Waterworks . Atlee V. Backhouse . Attack V. Bramwell . Attenborough's case . TAGE 225 163 089 433 449 447 445 067 590 737 130 VL'L' 383 134 70 538 394, .395 302 89, 90 25, 330 50, 284, 397 . 792 440, 510 and . 27 605 . 87 . 241 . 486 . 612 . 785 48,71,637 . 749 . 33 . 729 . 250 . 229 . 161 . 691 . 436 28,29,39,72 201, 404 40, 176 57, 61 32, 98 . 522 . 493 . 497 . 387 . 545 . 236 388 428 32 181 416 718 507 305, m, Gates- 74,75 . 33 361, 498 457, 460 PAGE Attenborough v. St. Katherino's Dock Co. 449,694 V. Thompson . 165 Attorsoll r. Stevens . . .411 Att. -Gen. v. Acton Local Board. 393 V.Basingstoke (Mayor of) . . . 367 V. Birmingham (Bo- rough of) . 370, 392, 394, 727, 729 V. Bradford Canal . 392 r. Chambers . C, 438 V. Cleaver . j67 V. Colnoy Hatch Asy- lum . . .393 V. Dakin . . .680 V. Dorking Guardians 393 V. Doughty . . 3 V. Ely, &c. Rail. Co. . 770 V. Forbes . . . 636 v.GasLight&CokoCo. 727 V. Gee . . . 392 V. Hackney Local Board . . .782 V. Hallott . . .390 V. Horner . . . 645 V. Jones . . . 438 V. Leeds (Corporation of) . . .727 r. Lonsdale (Earl of ) . 615 V. Mathias . 320, 341 V. Mid Kent Rail. Co. 770 • V. Nichol , . .391 V. Norwich (Mayor of) 73u V. Rees . . . 439 V. Richmond . 367, 392 V. Shrewsbury Bridge Co. . . . 636 r. Terry . • . 615 V. Tomline 265, 297, 298, 427, 438 V. United Kingdom Tel. Co. . . 92 of Isle of Man v, Myl- chreest . .427 of New South Wales v. Macpherson .... 653 AtiwatoT, Fx parte . . .461 Atwood V, Monger ... 30 Aubrey v. Fisher . . .414 Auckland (Lord) v. Westminster . 729 . 342 . 150, 220 V. Mills ... 55 Austria (Emperor of) v. Day . 91 Avanzo v. Mudie . . . 550 Axmann v. Lund . . . 260 Ayling v. Whicher . . .236 Ayusley v. Glover 324, 358, 380, 395 Ayre v. Craven . .170, ^3 Local Board Austin V: Amherst r. Dowling '^> B^VBONEATJ V. Farrell Back V. Stacey . 207 380 INDEX OF ENGLISH CASES. xli Back V. Stacy . Backhouse v. Bonomi I', Ilurrison Bacon v. Bacon V. Jones V. Smith Badger v. Ford V, Shaw II. South York. PAGE . 394 . 389, 427 . 53S . (502 . 573 . 421 , 35o , 408, 492 Bail. Co. 443 BadischAnilinFabrik i', Levin- stein . . . 563, 5C4, 572 Badkin v. Powell . . .403 Bagg's Case .... 648 Bagnall v. Loudon and N. W. Kail. Co. . 37, 432, 763, 764 Bugot y. Bagot . . . 414,41." (Lord) V. AVilliams . . 55 Bahia and San Francisco Bail. Co., lie 746 Bailey's Case . . . 667, 669 Bailey, A'* parte (3 De G. M. & G. 534) . 254 (L. E. 8 Ch. 60) . 568 V. Apployard . . 336 BidwoU Birtles Ilobsou Jamioson Johnson 53'(, 538 .52,61 . 426 . 614 . 246 Manchester, Sheffield & Lincolnshire Bail. Co. r. Stephens . V. Stevens V. Walford . Baily v. Merrell Baines v. Bromley . V. Swainson . Baird v. Fortune V. Neilson V. Williamson Baker v. . V. Brown V, Morfuo V. Pierce V. Sebright . V. Webberly . Baldwin v. Casella . v. Cole Baldwyn v. Oirries . Ball, J'Jx parte .... V. Ball .... V. Herbert V. Bay .... Ballacorkish, &c. Co. v. Harri- son Ballard v. Dyson V. Tomlinson Ballingor v, Ferris . Balls V, Metropolitan Board of Works Bamfield v. Massoy . Bamford v. Turnley . 118 324, 348, 350 . 288 . 734 . 732 . 790, 791 . 477 . 308 . 569 . 370 . 235 . 85 . 174 . 170 . 417 . 131 . 134 . 500, 503 . 85 . 76 . 598 . 616 . 368 276 292 363 777 795 . 590 366, 367 PAGE Banburj- v. White . . .466 Bank oi Bengal v, Macleod . 538 V. Fagan . 638 Bank of Ireland v. Trustees of Evans's Charity . . .41 Bank of New South Wales v. Owston . . . .120 Bankart c. Iloughton . . 394 V. Tennent . . . 311 Banks v. Allen . . .174 Barber v. iJennis . . . 582 V. Lesitor . . . 5, 73 V. Nottingham and Gran- tham Bail. Co. 37, 761 V, EoUinson . . . 148 V. Walduck . . . 560 r. Wliiteley . . . 292 Barclay, Ex parte (5 Do G. M. &G.403) . 484,490 (L. R. 9 Ch. 576) Barker v. Braham . . 150, V. Richardson Barkshire v. Grubb . Barlow, In re . . 640, 645, V, Rhodes . Barnabas v, Ti'auntor Barnardiston v. Chapman 525, Barnes v. Barnes V. Keppel I'. Loach . . 301, ('. Southsea Rail. Co. . r. Ward . 314, 621, Barnott v. Allen . . 170, V, Crj'stal Palace Co. . V. Guildford (Earl) . Barney v. United Telephone Co. Barr v. Gibson Barraclough v, Johnson . 608, Barrett v. Long Barries v. Swainson Barrington v. Turner . 508, Barrington's Case . Barrow v. Arnaud . .89, 90, V. Bell . Barry v. Ainaud V. Croskey Bartlett v. Baker t'. Wells . Barton v. Bricknell . V. Gainer V. Gill . V. Taylor Bartrara v, Payne . Barwell v. Adkins . V. Winterstoko Barwick v. Eng. Joint St, Barwis v. Keppel Basebe v. Matthews Basoley v. Clarkson . Basset v, Maynard . Bassett, Kv parte Basten v. Carew Bastow & Co., Re . 735, 736, 746, 107, Bank 7 18, 659, 530 713 339 303 646 308 177 526 601 32 359 753 622 208 503 269 572 458 609 213 477 509 281 708 485 14 747 618 748 675 448 707 653 494 215 127 746 31 229 360 313 640 672 691 xlii INDliX OF ENGLISH CASES. 13atchclor v. Fortescuo V. Vyso . Dato r. Hill Btttoman v. Bluck . 48,G10,611,03(; r. Iloti'hkin IJaton's Case . BatcH, K.r parte ■ V. rilliiiR ?'. AVingiield . Batcrton v. Green Bath . . Sutton liatteislieo v. Farringtou l^uttishill r. Eoed 33 FADE , •616 , 698 , 590 116, 414 3G2 rm 713 (3{)8 . 284 . .466 . 2J0 3j1, 354, 409; 412 Batty f. Hill . . • ■ ""•! Batut I'. Ilnrtley . . . 506 Bax V. Jones .... 783 Baxondale v. Gt. West. Bail. Co. 32 V. UrcMunay . . 32i» Baxter r, I'ritchard . . 256 f. Taylor . . 409,611 Bayloy v. Gt. West. Enil. Co. . 303 V. Manchester, &c. Bail. Co 108 ?'.AYolvcrhanii)ton Water Works Co. Baylis v. Ijawrenco . • r. Lintott Bayliss v. Fisher Bayues t'. Brewster . Bayspoole ?•. Collins Beadel ?•. Perry Beak, In re Beal, 1'jX parte , Bcales v. Tennant . Bealey v. Shaw Beard v. Egcrton V. Knight Beardmore v. Tredwell Beatson v. Skene Beaty v. Gibhons Beauchamp (Ld.) v. Croft 35, 17. 720 208 789 510 . 154 . 251 . 395 . 449 . 556 . 466 329, 378 . 561 . 714 . 367 . 186 . 522 29, 198 Gt. West. E. Co. 772, 773 Winn Beaufort (1). of) v. Mayor, &c. of Swansea V. Patrick 291 437 310 371 134 440 Beaulieu r. Pinglam Beck V. Dyson Beckett v. Corporation of Leeds V. Mid. Bail. Co. .11, 704, 096, 756, 766 Beckford v. Ilood . 74, 76, 552 Beckwith v. Philby . . 152, 153 t'. Shordiko . .134 Beddall r. Maitland . 71,382 Bedford v. Hunt . . . 566 V. McKowl. Bedingfield v. Onslow Beechey v. Sides Beeston v. Weate Behn v. Kemhle Belcher i'. Bellamy . 407, 589 408 . 777 . 328 . 735 485, 491 Belcher v. Capper . Belding v. Bead Bell, Kx parte . r. Mid. Bail. Co. V. Oakley r, I'arko . V. Sini|)Son i; Stono . • V. Twentyman . V. Walker V. WardoU V. Wilson . Bellairs r. Tucker . Bellamy v. Burch . Ik'llcw V, Langdon . Bellingay v. Bellingay Bcnost V. Pipon Benjamin v. Storr . Bonnet's Case . Bennett's Trusts, In re Bennett v. Alcott . V. Bayes V. Bennett . V. Deacon . r. Eccvo V. Thompson Bennison v. Cartwright Benson v. Chester . ■ V. Frederick Bent V. Bent . Bermondscy Vestry v. PAGE 492 459, 460 489 7,82 718 192 256 168 296, 364 551 341 427 741 174 285 594 262, 321, 437 11 698 245 585 116 216 192 284 792 335 355 82 594, 602 612 Bcmina, The . Berridge v. Ward . Berriraan v. Peacock Berry v. Heard Berryman v. Wise . Berthier, Ex parte . Berthon v. Cartwright Bertie v. Beaumont . Berwick r. Andrews Besant, In re . Bessant v. Gt. West. Bail Bessell i-. Wilson Bcssey v. Windham . Betts V. De Vitre . V. Thompson . V. Willmott . Beverley v. Beverley Bewick r. Whitfield. Bcwley v, Atkinson . Bickett V, Monis Brown Eamscy 2 Co 57 630 440 4-' ) 522 174 700 591 200, 410, 523 59 596 346 674 710 109 284 569, 573 738 415 332 439 Biddle v. Bond Biddulpli V. St. George's Vestry B'^g V. London (Corporation of) Bignell v. Buzzard . V, Clarke Bilbao V. Lond. and Bright. Bail. Co. . . . . Billiter v. Young . Bills V. Smith . . . . Binanchi v. Offord . 506 769 758 169 402 026 501 256 470 INDEX OF ENGLISH CASES. xliii PAGE Binckos v. Pash . . . 358 Binks V. S. Yorkshire and Eiver Dun Co. . . . 022,627 Birch V. Dawson Birchloy's Caso Birch-Wolfo v. Birch Bird, Er ixirte . V. Gt. Eastern Rail. V. Iligginson . V. Holbrook 1'. Jonos . V. Peugrum V, Bandall Eolph Co 529 . 174 . 422 . C41 . . 75(1 . 310 . 47 147, 148 . 23G . 54 . 418 Biikott V. Whitehaven Junction Rail. Co. . . . 99, 317 Birloy v. Salford . . .127 Birmingham Canal Co. v, Lloj'd 92 Churchwardens l'. Sliaw . . 677 Oils Co., Kt- parte, 242 (Mayor, &c.) v. Allen 279 Birt V. Barlow .... 592 Biscoe ('. Groat Eastern Rail. Co. 768 Bishoj) V. Jersey (Countess of) . 747 V. Trustees of Bedford Charity . . . 375, 376, 377, 622, 023 Bissicks V. Bath Coll. Co. . 091 Blaekborn v. Greaves . .516 Blackburn, ExpurU; . . 257 (Mayor, &c. of) v. Parkinson .... 751 Blackett v. Bradley . . .344 lUackham v, Pugh . . .193 Blackman v. Simmons . .133 Blackmoro, Ex parte , . 044 V. Mile End Old Town, Vestry of . . . 020 Blackwell v. England . . 400 Blades v. Arundel . . .091 V. Higgs 142, 383, 384, 518, 541 Blagg V. Sturt . . . .188 Blagravo v. Bristol Waterworks Co. Blaiberg, Ex parte . V. Parke . V, Parsons 36, 764 . 468 . 404 . 457 . 241 . 139 . 462 . 584 Co. . 605 . 417 . 188 . 104, 106 Blakomorev.Br.&Ex.Rail.Co. 736 Blanchard v. Bridges . 307, 334 Blanchenay v. Burton . . 705 Bland v. Lipscombe. . .341 Blaymire v. Haley . . . 586 Blenheim, The ... 632 Blake, Ex parte V. Barnard . V. Izard V, Layton V. Midland Rail. V. Peters V. Pilfold V. Thirst 169 558 Blewett V. Jenkins . Blowitt V. Hill V, Tregonning Bliss V. Hall . Blofiold V. Payne . Blood V. Keller Bloodworth v. Gray . Bloomfield v, Johnston Bloxam v. Elaeo (6 B. & C V. (1 C. & P V, Hubbard. Blundell c. Catterall Blunt V. Beaumont . Blyth V. Birm. Water Co Blytho V. Topham . Bode (Baron de), In re Bodley v. Reynolds . . ,514 Bogg r. Midland Rail. Co. . 751 Bogue ('. Houlston . . . 558 Bohn V. Bogue . . . 550 Bolch V. Smith . . .314 Boldero v. Lend. & West. D. Co. 248 Bolingbroke (Ld.) v. Swindon Local Board. . . .108 Holland, Ex parte . 257,401,405 Bolton V. Bolton . . 303, 304 Bonita, Tho . . . .534 Bonomi v. Backhouse . 39, 08, 80, PAGE . 343 . 41 . 341 362, 367 40, 5 '4 . 351 . 172 . 291 508 501 . 77 . 12 . 141 . 23 315, 021 . 641 270, 278, 427, 429 555 . 54 . 299 66, 77 . 656, 775, 770 . 125 Boosoy I'. Eairlio V. Wood Booth V, Alcock V. Briscoe V. Clive . Borradaile v. Hunter Borrows v. Ellison . , . 209 Boss V. Litton . . . .627 Bostock V. Floyor . . . 746 — - V. N. Staff. Rail. Co. . 769 Boucicault v, Chatterton . . 553 V. Delafield . . 548 Boulding v, Tyler . . . 791 Boulton's Case . . . 132 Boulton, Exparte (20 Beav. 178). 489 Ex parte {I be G.& J. 119) 489 V. Bull . . . .563 V. Crowther . . 34, 725 V. Watt . Bourke v. WaiTen . Bourne v. Fosbrooke V. Liverpool (Mayor of) . Bovill V. Crate V. Goodior Bowditch V. Balchin Bowen v. Hall . . . . Bower v. Hill . V. Peate . Bowes V. Foster Bowker v. Evans Bowles's Case . Bowman r. Taylor Bowyer v. Cook Boyce, In re . 571 209 520 702 92 573 154 . 10 39, 274, 292, 389 . 106, 420 . 247, 481 . 59 . 421 . 669 . 361 . 680 -1 xliv INDEX OF ENGLISH CASES. l(i4 739 530 -190 751 531, 354 473 33 78 379 84 339 551 7(il 30 IJoyco r. Ikjliffo IJoytl r. Cioydoii Rail. Co. r. Sliiirrock . .527, Hoydfll r. M'Michnol . 484, Koviiolil i: I'ortiT . IJoylo I'. Tainlyn . 129, 292, 321, 1 lioynon v, ("oIpm lioytcir !'. ] )o(lHW()ith IJiufcginllo 1'. Orfonl IJmdboo V. t'hrist's Ilnfijutal . Brndbuin r. Groat 'Wt'starn Eail Co IJradbury r. Griiisell ('. Ilotton Uradby i'. Southumiiton Local ISoui'd Itradliitiph r. Ncwdegato . ]{radley r. Arthur . . 120, 723 Itradlcy r. Ci)])loy . . . 523 • r. Gill llrudsbaw n. I'Wro . Brahniii v, licadiim V. Bn.stavd . ]?raithwaito v. Skiimcr Bramwell v. llalcoiiib IJranckor v. Molyiicux Ikand i\ Ilainuicrsmitli Co. . . . Brandling v. Barrington Brandon v, Brandon Brundretb, in re Brantom r. Griffiths Brassington v. Llewellyn Brasyer v. Maclean . Bray v. Tracy .... Braj'ne v. Cooper Brecon (Mayor, &c. of) v. Ed- wards Breeso v. Jordoin Brent v. Iladdon Brett V. MuUarkcy . Brew V. Haren . . 437, Brewer v. Drew . . ^io, V. Sparrow . Brewin v. Snort . . 243, Bridges v, Blanchard . 310, -; — ' V. Ilawkesworth . Bridgett v. Coyney 3(i2, 40, 574, Eail. 402, 202, 125, Bridgewater's (Dukeof) Trustees V. Bootlo-cum-Linacre . Bridgland v. Shapter Bridson v. Benecke . Brierly v. Kendall . . 510, Briggs, /;.(• parte ( 1 El. & l^ll. 88 1 ) (L.E.lEq.483) V. Boss .... V. Evelyn V. Oliver BrigU I'. Walker , 325, 327, Bricd V, Hampshire Brine v. Bazaleette . -7- t'. Gt. West. Eail. Co. . Brinsmead v. Harrison , 94, 308 308 574 577 73 551 521 759 098 701 787 532 207 082 421 171 545 783 377 142 522 514 52 480 385 447 003 437 545 92 524 038 741 406 778 22 336 473 196 36 481 TAOE Briscoe v. Drought . . . 273 Bristow I'. Cormican . .439 v. Eastman . . . 1 22 British Museum (Trustees of) ?'. Finnis .... 009 Britton V. South Wales Railway Co 78, 85 Brittridgo's Case . . 172, 174 ]$road r. Ham . . . 222, 226 IJroadbont r. Imperial Gas Co. 3(5, 70, 743, 764 273 344 132 v. Ramsbothani V. AVilks Brock ('. Copeland . Brocklohurst v. Manchester, &c. Tramways Co. Brodor v, Guillard . Brodrick v. Scale Br')m.ige v. I'rossor . Bromley ;•. Wallace. Brook, 7v.i' parte v. Ilook V, Montague r. Rawl Brooke, JCr jxtrte Brookes r. Titchborno Brooks, K.r parte V. Ilodgkinson V. Warwick Brown's Case . (Lady) Case Brown, J . 298 . o21 . 4i;j . 720 . 488 . 417 . 4l)j Mot. <0L', 8J, 7«1 G47 (532 !)j 7{)i) 2JI 1J2, 447 . 182 . 294 . G41 . 3j8 . COJ . 247 . G8j 72, 401 . 113 . 497 415,417 . G18 Rail. . 318 . 524 . G73 . 715 . 537 . 122 . 108 12G, 723 . 383 . 500 . 734 . 256 . G42 . 48 493, 520 . 713 72G, 728 105, G18 75G . 499 222, 225 143, 406 . 124 . 483 3, 770 . 24 . 24 170, 20G Buxton, I'^x parte . . ('. Baugham V. N. E. Hail. Co. Bylos, In re . Byno I'. Moore. Byrno v. Boadle Bywoll Castle, The . PAGE 241 50G 34G 7G1 230 G19 G32 Caciiapool, Tho . . G32, G33 Cachar Co., Jte . . .741 Caddy v. Barlow . . . 229 Cadogan v. Kennett . . . 250 Cahibar, The . . . .633 Calcrat't r. Harborough (Earl) . 594 Caldor r. Ilalkett . . G55, G75 Caldwell, Ex parte . . . 489 Caledonian lly. Co. y.Carmichael 795 r.Ogilvy 34,36,758 V. Sprot 278, 428, 433 V, Walker's Trustees G9G,G97,G98, 756, 758, 759 438 709 692 Calniady r. Rowo Calvert v. Joliffo Cambrian Railways Co. 's Scheme Cameron v. Charing Cross Rail. Co. . . . V. Wynch . Campbell v. AUgood ,7. Mayor,&c.ofLiver- pool . V. Scott V, Spottiswoode 760 524 417 Campion v. Bonyon Canadian P ' "oners' Cano V. Cha^aian Canham v. Barry V. Fisk V. Jones Cann, In re V. Clipperton 434 550, 551 . 202 . 566 Case . ,681 74, 729 . 735 . 302, 306 . 559 . 461 . . 776,777 Cannington v. Nuttall . . 563 Cannon »;. Vilkrs . . 299, 395 Canot V. Hughes . . . 504 Canterbury (Lord) v. The Queen «72 (Viscount)y.Att.-Gen. 372 Capo V. Scott .... 399 Capel V. Jones .... 207 V. Powell . . 123, 124 Capell V. Great West. Rail. Co. 731 Capital and Counties Bank v. Henty .... 206, 209 Card V. Case . . . .131 Cardigan (Earl of) v. Armitage 290, 3'3, 427 Cargill V. Bower . . . 740 Caringtou v. Wycombe Rail. Co. 769, 770, 773 Carlisle (Mayor of) v, Graham . 291 Carlyon v. Levering . . 329 xlvi lNDi:X OF ENliLISII CASES. f I'AOK . 2;}(} . 2(11 . ()i»7 , 5()i5 . 5(10 Co. . 7H1 •l(i(), 5;}1 289, 2!)i) . 58(i 31i), alio . 201 285, ;557 148, 223 . 285 0, ;5()2 49J, 4!»5 . 172 . 3(19 . 4(J1 . 115 55 . 522 , 575 . 595 5(i8, 5()9 . 5(i() . 550 550, 553 . 519 Carno r. Brico . Curpoiitoi- c. ( 'olliiiH . V. reiuco . ('. Smith . ,.. Willi . Caii)xic r. L. and J5. Kuil Curr V. Allatt . f. HcnHoii . V. Clurko . V. l?^ostor . V. IIooJ . V, Lumbort Carratt r. Morloy . Carrill v. I'lick . Carrinpfton i; Taylor ( 'iiiTuthei'H r. I'ayiio. rarsluko r. Maj)lo(loram CarHtairH v, Taylor . Carter, A'.<' jxirtc /'. Drysdalo . t'. James V. Johnson . Cartier i'. Carlisle . Cartlidpo v. Cartlidn;o Cartwright c. Amatt r. Euinor Gary v. Kcarsley ('. Lon{i;man Casanova r. The Quoon Casburn v. Eeid , . . Kil Cassoll V. Great West. Eail. Co. 795 Cast Plate, Oovcnior, &c, of, r. Meredith . . . .725 Castle, E.r parte . . .488 Castriquo o. IJehrens . . 4 V. Iinrio ... 54 Caswell V, Cook . . .545 Catchpole v, Ambergate, &c. Eail. Co 121 Ca^cr t'. Chignell . . .71(3 Ca\horwood r. Caslon . . 592 Cator V. Lowisham Board of Works . Cattorall v. Kenyon . . 122, 519 Catteris v. Cowper . . . 405 Cattle V. Stockton Waterworks Co. . . . Caudlo V. Seymour . Caunco v. Spanton . Cave V. Mountain . Cavoy V. Lidbittor . Cawkwell v. Eussell Chadwick v. Trower Chalk V. Wyatt Chamberlain r. Boyd V. Goodwin " V. King Eail. Co. Chamborlaino v. Chester and Birk. Rail. Co. . ChamberlajTie t-. Dummer West End, &c. 51. 766, 2,21 G59, 661 . 505 658, 660 . 366 I, 359, 397 306, 379 . 391 38, 176 218 77 J, 777 Chambers v. Caulfiold r. Eol)inson Chandler r. Thompson Chaplin, AV /lartf . Chapman v. Cripps . V. Jones . r, Monm. Rail. Co. I', rickorsgill . V, Speller . Chappell v. Boosoy . Charkich. The . Charles v. Finchloy Local Board PAOB 392 22(i 334 254 608 435 761 75 452, 699 553 137 393, 397 750 133 774 15 417 Charlton v. Rolloston Charlwood v. Greig . Chartered Mercantile Bank of India v. Netherlands Steam Nav. Co 630 Chasemoro v. Richards 275, 276, 277 Chatteris v. Cooper . . .142 Chatterton v. Cavo . . . 553 Chauntlor v. Robinson 377, 425, 623 Chauvin v. Aloxandoi . . 703 Cheavin v. W^alkcr . . . 578 Cheese v. Scales . . .168 Cheesmun v. Ilardham . 285, 28(5 Cheetham v. Hampson . .297 Chelsea Vestry v. King . . 363 Cheltenham, &c. Carriage and Waggon Co., Be , . . 654 Clietham v. Hoaro . . .269 V. Williamson 289, 320, 349 Cliotwynd v, Chotwynd . .601 Chichester v. Lethbridgo . 11, 614 Child V. Affleck . . .195 V. Ilearn . 27,129,297,346 V. Mann .... 697 Childors v. Wooler . 733, 734, 735 Chilton V. London (Corporation) 34 1 V. Lond. & Croy. Rail. Co 159 Chinn v. Morris ... 83 Chinnery r. Viall . . 300,511 Chowne v. Baylis . . 32, 743 Christiana, The . . .634 Christopherson v. Bare . 50, 140 Churchill V. Siggers . . 30, 219 Churchward v. Studdy . .541 Churton v. Frev^on . . . 433 Gibber v. Slope'. . . . 593 City of Glasgow Unicii Eail. Go. V, Caledonian Eail. Co. . City of Glasgow Union Rail. Co. V. Hunter . . 757, City of London Brewery Co. v. Tennan' . . . . Glare v. Maynard Clark V. Adie . V. Armstrong . V, Blything V. Calvert ■ V. Chamberlain 772 759 Chambers 379 . 79 563, 567, 571 . 133 . 84 . 65 . 505 25, 45 INDEX or KNOLiail CASES. xlvii I'AOE Clark r. Froomaii . . . 100 IK JohnHon . . . 01) I'. Molynoux . .180, 'HV' V, NowHiuii . . .9(5 V. Nicholson . . . 7')S V. Wobstor . . . o08 r. Woods . . .71(5 Clink's I'litont .... .V2() Clurko, Jn re {11 Ch. D. IM) . 240, 24 1 (21 Ch. D, 817) . 5'JJ, 590 V. Cobloy . . .122 V. Coggo . . . a09 V, Dixon . . . 740 ?'. Postan . . . 221 V, Siinini (Bishop of ) 040,640 V. Sponoo Colo V. N. W. Bank t'. Tumor . Coloinan v, Foster v. Riches Tinker V. Willott . V. Wrif^ht . Cliirkson v. Musgravo Clavoring's Case Cluy V. lloborts Olayartls v. Dcthick . Clayton v. Corby Clcovo 1'. Mahany . Clegg (•. Doardon Cloniont V. Chivis V, Cheosoman V, Militcr . Clomonts v. Flight . V, Lambert V. Matthews V. Ohrly . Cliff V. Mid. Rail. Co. Clifton V. ChancoUor Cliniio V, Wood Close V. Phipps Clossman v. White . Clothier v. Webster . Clou'^ V. Clout . Coats V. Claronco Rail Cobb v. Mid Wales Rail Cobbott V. Clutton . • ('. Grey I'. Wheeler . Cook V. Gont . Cockayne v. Hodgkinson Cockcrof t V. Smitn Cocker v. Cowper V. Musgrovo Cocks i'. Chandler V. Purday CodJ V. Cabe . Codrington v. Lloyd Coo V. Wise Coffin V. Coffin Cohen, I'Jx parte V, Huskisson , V. Morgan 491 . 280 . 2o2 . 2J1 . 114 . ;ni . 109 . 42 . 320, 338 . 412 . 57 . 1()8 . 449 . 399 . 507 . 355 . 459 . 222 . 625, 020 . 450 . 527 . 98 . 507 724, 730, 752 602 708 795 503 138 780 69 194 47, 140, 141 . 310 . 697 . 574' . 649 . 151 . 713 . 726 . 423 . 254 . 156 . 148, 223 Co. Co. lo-J Colchester(Mayorof)y. Brooke . 26, 438, 636, 637 Cole V. Foxman . . . 285 V, Greene . . . .39 V. Manndy . . 3S3, 498 PAOK . 476, 477 . 139 . 290 . 90, 747 . 250 49, 150, 712 733, 734 44 143 Colomoro, III- , Collott r. Foster Collins i\ Evans /'. Middle Level Com. V. Renison . V. Ross . ('. AVolch Collins' Co. ?;. Brown CoUis »'. Heldon Colnaplii c. Ward Colonial Bank v. Whinnoy ColwoU V, Reeves Colyer v. Spoor .... Commissionors of Sowers v. Glasso Compton V, Richards Conelly v. Steer Congrovo v. Evotts . Conradi c. Conradi . Consett, The .... Consolidation Credit Corp. v. Gosnoy .... Constable v. Nicholson Cook, J'Jx parte i". Batchollor . V. Bath (Mayor of) V. Boal . r. Field . ('. Leonard V. Palmer V. Ward . Cooko V. Foi'bos V. Hemming . V. Hughes V. Waring V, Wildes Cookson *'. Swiro . 679 . 787 . 580 20, 21 . 657 . 484, 488, 480 . 620 608 280 307 409 400 594 035 Coombs V, Beaumont Coojior, Kr, parte • ?.'. Barber v. Booth V. Crabtreo V. Gordon V. Harding V. Hubbuck (30 160) (12 C. 457 . 341 . 641 76 352, 353 . 141 . 212 . 776 . 711 . 168 . 393 . 484 . 208 . 131 189. 200 456, 464, 467, 469 . 484, 490 . 255, 256 . 272 232 .39,91,300 . 649 . 151 Beav. 334, 393 B.N. 337 132, 285, 397 . 481 S. 456) V. Marshall I'. Shepherd V. Wandsworth Board, &?. . 382, 647, 662 V. Whiitingham . . 650 V, Wilhimat . 450, 452, 455 V. Woolloy . . .365 Coote I'. Judd . . . .648 Copo I'. Barber . . . .158 r. Evans .... 680 Copeland r, Stephens . . 239 xlviil INDEX OF KNOLISH CASES. Corbet'H (Sir Milt^s) Cuho . Corbot I'. Ihowii Corliott, A'j- ]inoy8 Cornill '•. IIiuIhou . C'oriiiwh r. Koniio . . lOl, r. Stubbs Corniimu . E. ('. Rail. Co. ConnviiU c. Mctmi). Com. of Scwi'rn . ■ r. IJichnrdsoii . (^ornwoll r. SaiuliTs . . . Corrigal r. Loud, iiud HI. Kail. Co Coiry r. Oroat Western Eail.Co. Cort V. Siifjiir .... Cosonn i'. liofi^nor Rail. Co, Cowtar r. llotlu'rinf;toii . Costard r. '\\'iiifj;liold Cotchin- r. Rn.ssott . 92, 312, Cotes r. Mii'liill CotteroU v, Orillltbs t'. Jones Cotterill v. Hobby . Cotton, /'.'.»; purte V. James V. Wood . . 22, Conch V. Steol . . . 74, 75 Coiilson r. AVhito Coupland v. Hurdinghani Courtald v. Lcgli Cousens v. Hall Coutts V. Goi'bam . Coventry v. ^.adstono • V. Gt. East. Rail. Co. V. Lond. Brighton, and S. C. Rail.Co. . Coverdalo v. Charlton . 440, Coward, fii, re , v. Baddeloy . 4, Cowell V. Amman Coll. Co. Cowing V. Cowing . Cowlam V. Slack Cowlcs I'. Potts Cowley r. Mayor, &c. of Sun- derland .... Cowling V. Higginson Cowper (Earl) r. Baker . 391, Cox V. Burbidgo . 130, 133, V. Cox .... r. Feeney V, GIuo .... V. Gt. Western Rail. Co. . • V. Land and Water Journal V. Leo .... V. Leigh .... ■ V. Matthews . V. Mousley V, Eeid . . . i Coxo V. Smith . . . ! Coxhoftd V. Richards . 192, AdK 413 2N(( 73H 241 711 314 743 509 (i7 5(i3 313 318 013 231 005 700 347 4.-)H 770 147 288 393 705 358 30 410 471 233 027 ,70 390 022 334 292 307 471 480 773 442 238 139 791 594 285 1S4 118 293 413 301 551 200 429 113 548 108 698 307 429 773 96 203 ( "riibtroo v. Robinson Cracknoll v. Mayor of Tbotford ( 'rafter r. Rfctrop. Rail. Co. Craig i: Hasc^ll Cranden r. Waldcn , Crano r. London Dock Co. I'rico PAOK 089 34, 013 318 31 . 174 449, 430, 431 302, 30:i Cranwi'U r, London (Mayor of) 770 Craven v. Smith . . . 792 ?'. Stubbins . . . 0(i7 Crawcour c. Suiter . . . 492 Crawford's Case . . . 034 Crawford v. Middloton . .180 V. SatcliwoU . . 702 Crawshay v, Thompson . . 573 Credit Co. r. I'ott , . . 4(}l Cropps r. Durdcn . . . 004 ( 'reuzo ('. Hunter . . . 397 Crow r. Terry , . . .240 Crijjps c. Ju(lgo , . .112 Cri.M]) r. Martin . . . 430 Cristio r. CowoU . . .171 Croasdill r. Radclift'o . . 621 Crocker r. Molyneux . . 543 Croft c. Alison . . .101 ■ r. Day .... 373 r. Lond. and N. W. Rail. Co. . . . 702, i\ Stevens Crofts r. Brown V. Haldano . Crompton v. Ibbotson V. Lea Cronshaw V. Chapman 711 Crook V. Dowling . Cropper v. Smith Crosby i'. Long V, Wadsworth Cross, E.C parte V. Andrews . V. Lewis Crossfield v. Such . Crossley v. Beverley V. Lightowlor 703 1H4 . 170 . 349 . 560 309, 370 713, 733 . 101 . 507 . 70 . 404 . 681 . 124 322, 333 89, 308 . 560 274, 275, 302, 353, 394, 439 Crowdcr I'. Long . . 125,710 V. Tinkler . . . 636 Crowhurst v, Amersham Burial Board 303 Crozier v. Cundoy . . 718, '719 Crump V. Day .... 697 V. Lambert . .367, 392 Cubitt ('. Maxse (Lady Caroline) 607 V. Porter . .424, 444 Cubley v. Cubley . . .602 CuUen V. Morris . . 28, 652 ■ V. Thomson . . . 740 Culley V. Taylerson . . .262 Cumberland v. Copoland . .531 Cundy v. Lindsay . . .449 Curlewis v. Mornington . . 69 Curriers' Co. v. Corbett . 307, 380 Curry v. Walter . . .198 INDEX OF KNOLISII CXHVB. xlix PAGE 1 •AdK Curtis, 7?e .... 51)8 DttvioH r. Stephoiifl . • .321 Oil V. Iliibbiird . (18» i; Swanwa (Mi lyor ( f). 782 r. MillH 133 • (', Vernon , 110, 503 CuthboitMon ('. I'urHoiiH . 103 r. William8(10(i.U.7 2S) 587 Chitlor V. Dixon 181 • V. (umn.i )40) 71. Czech V. Gon. St. Nav. Co. . 22 Davis r. IJiirton 381, 390, .397 457 r. Curling 780, 781, 782 Daoijsii, !•:.>■ pnrtf . 630 1'. DankM . . 520 DiiiucH V. Iliirtloy . 208 r. Duncan , . 202 Duiiitry v. HrotkloliurMt . 411 V, OanMnor , . 175 Dulo c. Hirch .... 70(1 V, Ooodnian . . 4(H 40!) V, Wood . . .47 141 I'. Noako . , 225 D'Altnaino v. HooHcy . 5o.'J 551 V, Oswell . . 514 D'Altou V. D' Alton . (iOl r. RuHsell 151, 152, 153 Dalton V, AucuH . 10(5, 277, .324, r. Snodd , , 184 3U1 420 V. Trcharno . , , 428 *'. H. E. Rail. Co. . (JOG r. Uwher , , 401 DulyoU ,-. Tyit^r . 103 & Hon ('. Shopstono , 201 DamoroU c. I'rothoroo 342 Davison r. Duncan . , , 200 Dunby c. Lunib 788 c. Gill , , 440 Dund i\ Jvinjfscoto . . 2!)() 205 1'. Wilson . 48, 381 382 Jhmiol /•. AndoiHoii . 30.'J, 30« Oil Daw c. Eley (L. R., 3 Eq. 490) 573 ('. lIuDHlip . 350 V. (L. R., 7 Eq. 49) . 054 c. North 322 Dawes, Kr parte V, Ilawkins . , , 443 V. Wilson 779 008, 009 013 Daniels c. Fielding . 101 Dawkes v. Coveneigh , . 70 r. I'otti-r . 4:}, G13, 019 Dawkins f. I'aulot (Lord) 32 180 Dann, Kx parte 255 r.Rokeby(Lord)(4F. r. Spurrier . 312 &F.800) 31,32 ,120 ,723 Darby r. Ousoley . 215 (•.Rokeby(L3rd)(L.R., r. Watorlow . 091 7 H. L. 144) , 183 Darcy i'. Allin .... 559 Dawson, A'.r pitrte . ^ ^ 252 Dare r. Iloathcote . 293 r. Midland Rail. Co. . 347 ■ r. IIoi)kina 415 — r- V. Van Sandau . , 224 Valley Eail Co., «e. 701 V. Wood , <)93 Darpan v. Davios . 402 Dawtry v. Huggins . 128 301 Darloy v. The Queen 045 Day I'. IJrownrigg . , 573 Darley Main Coll. Co. c. Mitchell 39, V. Bullor . , 174 57, 08, 81 304 V. Day , 203 Darling r. Clue 330 Dean r, Branthwaito , 101 Daubigny r. Duval . 474 V. Hogg . . 142 Daunt c. Crocker 435 v. Peel . . 580 c. Taylor . 47 140 Davenport v. Rylands . 573 ,580 Doano v. Clayton 144 Davey v. Chamberlain 027 Death v. Harrison . , 716 V. London and S. W. Do Crospigny v. WoUosloy , 107 Rail, Co 020 Deeblo v. Linoham . , 321 Davidson i'. Tulloch . 121 ,744 Deffel V. \Vhite . 40(5 Davie v. Beardsham 270 Dogg V. Midland Rail. Co. . 115 Davios v. Jenkins . 20, 151 ,701 Do (Jondouin v. Lewis , 83 ; v. Lond. and Blackwall Delacroix v, Thevonot . 211 Rail. Co. 379 Dolanyy. Metrop. Board of Works 782 V. Mann . 26, 48 , 030 Delfe ?'. Delamotte . , 550 V. Marnhall ( 10 C. IJ. , N. Delisser v. Towno . ^ 229 S. ()'. l>cnt .... i: 'i'uipiii l)oiitr)U '•. Miu'iicil . l)'l';i)iiunil, III rr (oniit . DciTcoiilt r. CnrhiKliliiy . l.Jl, l)('riii^''H I'litt'iit, III ir Iti'vuiix r. Stf'iiikcllcr J).i Vitrr V. llrttH . 1 )cv(niHliir(i ( I )iiko i'w ''. I'lirsdiift K.'Will i\ NuiiilwM . 72, i;J'J, l)(\v(!y I'. Itiiviitiin . llcwlllirHt, l;'.r jKirfr D.ws r. liilcy . . . l'-'"', J »ilHliii /• Swan l).'kiinP()ii r. Uurbor ,.. Nuul . c. 'Wiitwin IiickiiiMiii c. Nort'i-Kiist. Rail. Co ])i('kH ''. Itrooks r. Yates .... 1 HckHon i'.l{('iiter'MTt'logr»]ihCo, l)i^fl)y c. TlioiiipHoii . Ifinies r. (jiaml Juii. Can. Co.. I'. Potloy . 48, (ilj, Diiiimock r. North StutY. Hull. Co ]>inis(lalo /'. Tiondon, l!ri;.'liton and S. Coast Kail, Cc. . 7!)1, ])iik,s r. Iticlianln Ditiliani r. liond . . 50, Ui.xou r, Jkty .... licli (.1 M. & S. 108) . • n stark. 280) . Culodoniun & Glasgow and 8. W. lluil. Cos. Enoch Fawcus . . 41, Iloldcn Smith White Napier AflE H)6 6'i 711 \,W l.i(i o(i8 -;«> o72 .-ill •101 218 21 .J ()8;j 201 12j 'l.')4 18 (i04 .048 7;i4 108 v,.y,i vm r. I)obrec ( I)o1)son r. lUucknioro Dockwriiv r. iJickenson Dodd r. liunliull . • I'. Ilohno V. Norri.s r. Eobinson . Dodwell r. IJurford . 305, 427, 407, 30(i, 580, Doo i: Arkwright V. Baytup V. Beckett i: Benham I'. Billctt . v. Bridges V. Challis . V. Coombcsi V, Coulthred V. Davidson V. Filliter • V. Garthain • I'. Gower . - f. Hanipson 37 702 505 384 205 42 80 754 212 575 217 82 428 135 410 525 303 370 500 174 130 2G1 39G 265 205 2G5 73 388 367 261 345 82 647 265 442 P.VOK Doo »'. Hurlow . i . 3HS V. llindo . . . .206 V. JuhnHou i . .411 V. Jonoa .... 040 ('. Kemp . . . . 442 t<. Leeds and llriidl'ord Rail. Co 312 ('. liewis .... 251 I'. Lock .... 300 V. Mae Kaeg . . . (MI) V. Manning . . . 251 t'. Mooro .... 263 c. MiirlesH , . . 706 V. I'eursey , . . 442 r. renf(dd . . .410 V. rhillips . . 264 V. ]'ulnmn . 261 f. Heed . . . .321 V. Roberts . . .258 r. Rock .... 264 v. Rusham . . .251 )'. Sniytlio (Lady) . . 306 r. Stacey . . . .261 ('. .Stanton . . . 263 V, Thorn . . . .705 r. Tryo . . . .711 r. Wood . . . 280, 320 Donaldson c. Beckett . . 547 Dorchester (Mayor of) r. Ensor . 546 Donnan, Ivx parte , . . 487 Doswell c. Inipoy . . . 651 Doughty »'. Firbank . . 113 Diuglas, Tho . . . .618 V. Corbott . . 222, 224 r. Ward . . .251 V. Yallop . .125, 683 Doulton V. Mot. Board of Works 794 Doust I'. Slater . . .780 Dovaston v. Payno . 130, 441, 607 Dover, Ex parte . , . 490 Doward v. Lindsay . . 61, 632 Dowglass V. Kendall . . 349 Down V. Hailing . , . 538 Downey's Case . . .681 Downing r. Butcher . .231 I'. Capol . . 156, 777 Downshiro (Marquis of) r, Ladj' Sandys 417 Downton Overseers, A> parte . 643 Doylo )•. Falconer . . . 653 Drake, Ex parte . . .481 ('. Beckham ... 64 r. Footitt . . .127 V. Sykes . . 125, 710 Draper r, Fulkcs . . . 122 Draycott v. Harrison . 236 Dressier, A'a; ;)ar Ebbs V. Itoulnois . . . 245 EcduHiaHtical CunuuiHaionerH v. Kino . . . . 358. :{,S0 EccloNiaMtical Coi.injisHionorH /•. Rowo 209 Eclinno. The .... (J29 Edi'lHttm c. Edolnton . . 1>1 Edoy, A'.i iiitrtf . . .485 Edgoiwrry c StcphonM . . 501 lOdKoll c. Francis . . . 103 Edgington c Fit/.inaurico . 741 E: WaiTcn Emanuol r. Bridgor . Embloii /'. Myoi'3 . Embroy r. Owou 39, 2 Eindon r. Ciiito Emcny r. Siuidcs . Eiuorscu *'. ]']nioi-.on Emory r. Ackor.s r. Barnott . Emmons /'. Poitlo . Emmott ('. Marohant Endorby, A> parte . England v. Bourko . Engloback v. Nixon. Enuor c. IJarwell Errington v. Met. Dist. Rail. Co Esk, The . Eslick, Jn re . Esploy i: AVilkes Estcourt r. Estcourt Hop Es- sonco Co. .... 788 Ethel BrowP, lie . . . 597 Europ. & Austr. E. M. Co. c. R. M. Stoam P. Co. . . oOO Evangolismos, The . , .31 Evans v. 15otterill . . .662 V. Edmonds . . . 734 r. Harlow . . 109, 173 r. Harries ... 82 r. Reo.-; . . . .342 i: Roberts . . .404 • ('. AValter . . .584 r. Walton . . . 585 c. Wright . . .501 i: Wyatt . . .738 Evelyn /•. Raddish . . 409, 421 r. Templar . . . 251 Evcrleigh r. Purssord . . 247 Evorsfiold ('. Newman . . 665 Every r. Smith . . 404, 441 Ewart r. Cochrane . . .301 r. Graham . . 310, 345 Ewbank i\ Nutting . . 510, 519 Excelsior, The .... 630 Excter(Coi-j)orationof) v. Devon (Earl of) . . . ,616 Explorer, The . . . .606 Eabuigas v. Mostyn Faivman i: Ives Ealko V. Fletcher . Falvey r. Stanford . Farobrother v. Ansloy Fariua v. Silvcrlock. . 78 188, 191 . 499 88, 217 . 96 . 91 Farley r. Danks Farmer r. Darling . r. Hunt Farr v. Newman Farrant ( . c, Barnes . ('. Thompson Farror r. Nelson Fawcet r, Boavres . Fawcott r. Feavno . )'. York and N Rail. Co. . Fay r. Prentice Fearnlcy r. Ormsby Fcaron r. Mitchell . Feather c. The (iiieen Feltham r. Cartwright ■ ('. Terry Fenn r. Bittleston . Fennings c.Grenville (Lor Fentiman i\ Smith . Fenwick r. East London Co. . V. Laycock Ferguson r. Carrington V. Ivlnnoul (Ear 94, 1 Fcrgusson v. Davisoi. Fernandez, Kr purte Fernloy v. Wovthington Ferrand r. Bradford (Cor Ferrers (Earl of) v. Staff Uttox. Rail. Co. . Fetter i\ Bealo Fottiplan v. Gorges . Field V. Adames r. Brown V. Carnarvon and bonis Rail. Co. I'^illitor V. Phippard . Finch v. Blount - — V. G. W. Rail Fincke v. Westlako Finden r. Westlako Fine Art Society Banks . Fiulay v. Finlay Finlinson v. Porter Finnerty i-. Tipper Firth, in re — — 1'. Bowling Iron Co Fisher, Kx parte r. Bristow V. Clement V. Dixon ('. Magnay Co . 502 . 592 . 296 215, 216 . 461 . 363 . 256 . 229 . 180 . 528 . 702 Prowse' 607, 612, 613, 622 Fitch V. Rawling . . 280, 340 Fitzgerald v. Northcoto . 48, 145 Fitzhardinge i-. Gloucester and Berkeley Canal Co. . . 795 Fitzjohn c. Mackinder 96, 227, 228 Fleming i', Manchester, &c., Eail. Co. . . . 16, 790 PAGE . 233 . 219 . 498 . 693 . 452 . 735 521, 522 132, 290 . 584 . 487 Mid. 624 362 620 545 560 310 33 521 d) 525, 526 310 Rail. . 768 093, 696 . 500 ■1) 13, 14, :5, 651, 682 791 654 717 756 .on and . 771 56, 80 . 236 72, 400 . 415 Llan- Union 771 372 510 203 168 187 INDEX OF ENGLISH CASES. liii PAGE 131, 134 . 469 . 392 . (531 . 1()3 . 782 . 370 . 149 . 30 334 789 332 Fleming r. Orr Fletcher, Kx parte . /'. IJealey . r. IJmddiek /•. Fletcher (', Greenwcll r. Smith Flewstor r. Roylo . Flight *'. Lcman r, Thomas . Flitters r. Alfiej' Flower r. Adam r. Loudon, Urighton, & S. C. Kiiil. Co. r. Low Leyton Locul Board . . 779, Floyd ('. Barker Flyn /'. Matthews . Foiston ('. Ciachroodo Foley ('. Wilson FoUett r. IIojipo Ford c. Foster . 575, 57(5, 577, r. Kettle .... • *'. Lecho . . . 125, ?'. Met. liuil. Co. . 756, i: Tynte .... Fordo i\ Skinner Foreman r, Canterbury (Mayor of) . . Fores *•. Wilson Forsdike r. Stone Forshaw r. Do Wetto Forster /'. Forstor . Forsyth's Case Foss, J'J.r parte Foster, Jn re 709 782 31 491 343 416 33 578 465 711 759 410 139 BuLes Charles . Ct)okson . Crabb Denny Dodd Ililton . Pritchard Stewart . 120, 720 . 585 . 214 . 791 . 593 503, 507 485, 577 . 251 . 481 . 739 . (597 525 . 004 . 435 709 710 584 (598, 690, Fotlierby r. Metrop. Rail. Co. 038, 707 Fouldcs r. Willoughby . Foulger r. Newcomb r. Taylor . Foulkes v. Met. Dist Fountain r. Boodle Fowler r. Down r. Foster Fox, Ex parte , ('. Fisher . ('. Gaunt . Foxall r. Barnett Foxham Tithing Case Foxley, J<]x p'trte FoxwoU ('. Bostock Franco v. Gaudet Frances v. Ley Franconia, The Kail. ( 'o. 500 173 405 1(5, 790 195 Franklin r. S. E. Rail. Co. Franks v. Weaver . Fraser v. Berkeley . /'. TiOvy /'. Pondlebury V. Swansea Navig. Co Fray c. Fray . Frearson v. Loo Freeman v. Appleyard ■ r. Arkoll . V. Cooke . Pope . 402 . 564 . 497 154, 156 164, 230 . 607 254, 255 . 567 . 514 . 436 . 635 Freer v. ^Marshall . Fremantle r. Ijond. & N. Rail. Co. French v. French . Frcshney v, Carrick Freston, In re . Frowon r. Phillips . Fritz ('. Ilobson Fryer r, Kinnersloy Fuontes r. Montis . FuUwood V. FuUwood Furber r. Cobb Furniss c. Midland Rail. Co. Fursdon v. Clogg Fussell V. Dowding . Fynn, In re PAGE 606 680 83 256 98 485 . 108 571, 573 . 476 221, 230 . 745 . 249 32 W. 37, 11, 35, 373 250 488 703 334 758 195, 201 . 479 . 93 . 470 753 207 237 596 Oahkiel r. Dresser Gaby i: Wilts. Canal Co. Gage r. Smith . Galatti r. Wakefield Gale V. Bumell Galliard v. Laxton . Galloway v. Bird 151, V. Bleadon c. London (Corp. of) Gallwoy v. Ganibart i Gandy Gann r, Marshall Ball V. Sumner Jiibber 54 775 414 791 458 718 515 565 709, 770 175, 200 . 557 . 558 . 375 Gard ,: Sowers Gardner ( Whitstablo Free Fishers 437, 438 i\ Commissioners of 709, 770 Broadbont *'. iSlado Garnet r. Bradley . Garnett v. Ferrand . Garrard v. Tuck Garret c. Taj'lor Garton r. Gt. West. Rail. Co, Gas Light & Coke Co. v. Vestry of St. Mary Abbott's, Ken- sington Gaskell v. Marshall Gatcward's Case Gathercole v. Miall Gaunt ('. Finney Gautret v. Egerton Gaved v. Martjm 573 195 787 652 264 7 781 392 . 693 341, 342 . 203 . 308 . 315 328, 329, 330 Uv INDEX OF ENGLISH CASES. PAGE Gawlor r. Chaplin . . .699 Gay r. MiitthcwH . . .517 O.iyford r. Moffatt . . 3(M, 327 GcarnR r. Ikkor . . 282, 290 OoddiH r. I'ropiietors of 15ann Rosorvoir . . . 34, 38 Gonoml riimishiiif? Co. v, Voiin 462 Oon. St. Navif,'. Co. r. Br. & Col. St. Navig. Co. . 633, 634 Gon. St. Naviff. Co. c London & Edinburgh Sliipping Co. . 788 Goueso, III re . Gout I'. Harrison Goorge '•. Beaumont c. ChunihcTs. ('. Skiviiigton Ooorgo and Bichurd, The. Ooorgo Boppr, T)io . Goraghty c. M'Cann Gerard v. Dickenson (rerhard r. Bates Gorrard c. Cooko Gibbins c. Phillips Gibbons i\ Alison I'. I'epper Gibbs' Case Gibbs 498 415,421 . 509 ^. 517 735, 730 42, 606 . (i32 . 304 . 258 40, 735, 739 . 295 . 125, 710 . 101 19, 628 . 451 . 567 517 113 69 Colo . Cruiokshank c. Gt. Western Bail. Co ('.Guild. . . . __ V. Mersey Docks Trustees .'J14, 316 Gibson v. Bray . . . 493 ■ ('. Hammersmith Bail. Co. . . 752, 770 ■ '•. Brostoii (Mayor of) . 720 c. Smith . ' . .413 Gilbert c Burtenshaw . 85, 214 ('. Guignon . . . 471 ■; r. Trinity House , Gilbortson c Bichardson . Gilchrist, A'o; jmrte Giles V. Loud, & Chat. Bail. Co. 126 78 498 i: Taff Vale Bail. Co. v. Cubitt . Gill Gillett r. Wilby Gillon !'. Boddington Gilpin ('. Cohen ('. Fowler Gimbert v. Coynoy . Gimson v. Woodfall . Girlington v. Bitfield Gladman c Johnson Gladstone v. Padwick Glad well i\ Steggall Glaholm v. Barker . Glasspoole c. Young Glavo V. Harding , Glegg, Kr. parte Glengan^, The Glossop ('. Heston & Isleworth Local Board. . . 393,638 Glover v. Coleman . . . 335 i^. Lond.&N.W.Rail.Co. 507 118, 120 . 538 . 570 60, 68 . 703 177, 190 . 719 76, 452 . 220 . 134 482, 691 . 583 . 635 512, 693 303, 307 . 241 632 FAOK Glover y. Lend. &S.W. Rail. Co. 165 (•.NorthStaif.Eail.Co.7o6,764 Glyn V. Abordare Rail. Co. . 760 Glynn v. Houston . . 97, 150 Thomas Ryan, 401 476 685 173 496 196 473 118, Gobind Chunder Sein i' Goddard v. Harris . Goddart v. Hasolfoot Godfrey v. Fiirzo Godson r. Horno Godta I'. Rose . Goff ('. Great Northern Rail. Co 119, 159 Goffin r. Donelly . . .183 Gold I'. Strode . , . .685 Goldinott c. Townsond , .251 Goldsmid v. Tunbridgo Wells Commissioners . 367, 392, 394 Goldstein v. Foss . . . 209 Goldstrom r. TaUermann . 457 Goldsworthy, fn re . . . 597 Gompertz r. Kensit . . . 592 Gooch's Case .... 251 Good, Ex parte . . . 241 V. Lond. Steam Ship- owner's Association Goode 1: Job . . . . Goodhart v. Hyett . Goodman v. Boycott I'. Harvey V. Saltash (Mayor of) Goodson V. Richard.son Goodtitle v. Alker . V. Tombs . Goodwyn v. Cheveley 27 267 296 508 538 341 391 . 441 . 388 48, 130, 380, 400 Gordon v. East India Co. r. Woodford Gore v. Grey . Gorge 1: Milbank . Gorris c Scott . Gort (Viscount) v, Rowney Goslin )'. Corry Gough V. Evorard Gover's Ca-se . Gowens v. Moore Grace r. Morgan Graham v, Furbcr v. Laffitto Grainger r. Hill . 31, 147, 161, 501 Grand Junction Canal Co. r. Shugar . Granger r. George Grant c. Moser ('. Norway V. Vaughan Grantham v. Hawley Graves v. Ashford . Graves's Case . Gray v. Bond . V. Jones . V. N. E. R. Co. V. PuUen Greasley v. Codling . . 488 . 416 . 162 . 250 75 77. 787 81, 214 469, 532 . 742 . 791 . 79 . 486 . 651 . 277 . 69 155 . 747 . 536 281, 460, 531 . 557 . 556 . 322 . 466 . 795 105, 617 . 11 INDEX OF ENGLISH CASES. Iv PAOE PAGE Groat East. Rail. Co. r. Golds- Grocers' Co. v. Donne . 36 ,725 mid 545 Groonvolt v, Burwoll . , 652 Groat Ship Co., lie . 692 Grose v. West . , 442 Groat West. Rail. Co. r.Eonnett 431 Groto *;. Chester & Holyhead Great West. Rail. Co. r. May . 772 Rail. Co. . , 624 Great West. Rail. Co. v. the Grove r. Nevill , 748 Queen 639 Grubb, In re . . 700 Great West. Rail. Co. r. Sutton . 32 I'. Burlington (Earl of) . 421 Groat West. Rail. Co. r. Swin- Grymes v. Peacock . • 355 don Rail. Co. . . 750, 767 Guest r. Poole & Bouraemouth Great West. Rail. Co. of Canada Rail. Co. . . , 767 V. Braid .... 728 ('. Warren . 55 Great Yarmouth (Mayor of) v. Guillo *'. Swan . . 128 Groom 545 Gulliver v. Cosens . • 402 Groathead v. Morloy 345 Gully r. Smith . 622 Groatrex v. Hayward 330 Guntor v, Astor . 584 Green v. Bartram . 156 Gutsolo ('. Mathers . , 258 V, Bucklechurches . 14 GwinnoU v. Earner . 377 623 V. Button . . 7 260 Gwynn v. Poole , 655 V. Duckett . . 33 402 I'. Dunn .... 504 V. Elgie .... 713 Hackett )'. Baiss . , 395 V. Goddard . . 47, 142 Haddon v, Lott , , 46 f. Groenbank 748 Haddrick v. Heslop . , 226 V. Lond. Gen. Cm. Co. . 11. Hadesden v. Gryssel 285 542 118 617 Hadley v. Taylor 621 622 i: Popo .... 1150 Haigh ('. Jaggar . 422 r. Smith. 246 ?'. Lond. &N. West .Rail. Greenhow v, Ilsloy . 378 Co. . . . , 318 Greening r. Wilkinson 511 Hailos r. Marks 153 225 Greenland v. Chaplin . 26, 27 ,41, Haines c. East India Co. , 745 79 630 r. Taylor . 91 392 Greenslado v. Darby 435 Ilairo r. Wilson 168 180 r. Halliday . 71 398 Hakewill, In re , 595 Greenway v. Hurd . * . 775, 779 Hale V. Alnutt , 254 Greenwich Board of Works v. ('. Metropolitan S aloon Maudslay . . • . 610 Omnibus Co. , 247 Greenwood v. Horasoy . 359, 395 V. Oldroyd , 353 Gregg ?'. Wells . . . 454, 480 Halkett v. Emmott . , 465 Gregory c. Brunswick (Duke of) Hall's Estate, Be , 592 (ICar.&K. 24) . 201 Hall, I'Jx jiarte . , 257 V. Brunswick (Duke of) , In re , 460 (6 M. & G. 205) . 8 v. Ball . , 536 V. Cotterell . 701 , 709, 711 ('. Barrows , 575 *•. Hill . . 47, 143 V, Booth . , 152 c. Piper 97 V. Bristol (Mayor of] , 757 V. Williams 81 V. BjTon . , 284 Gregson v. Theaker . 593 ('. Harding , 399 Grovillo ". Chapman . 169, 207 c. Hollander . , 583 Griffin v. Coleman . 126, 150, 153, ('. Lund . , 301 154, 719, 721 v. Nottingham. , 341 V. Dighton . 435 ('. Pickard 101 321 Griffith, Kx parte 257 r. Smith . 729 V. Matthews 430 V. Swansea 33 V, Taylor 777 V. Swift . , 274 Griffiths ?;. Dudley . . Ill, 605 Ilallas ('. Robinson . , 459 V. Lewis . 172, 194, 206 Halley, The . , 634 V. Teetgon . 586 llalliday. Ex parte . 253 25G Grill V. Gen. Iron Screw Collier , III ye , , 600 Co 21 Hallows r. Eoruie . , 741 Grimstead v. Marlow 342 Ilalsey v. Brotherhood , 259 Grindell v. Brendon 465 Hamar v. Alexander , , 738 Grinham v. Willey . 149 Hambleton v, Veere , ^ 78 Grinnell v. Wells . 583, 585, 586 Hambly v. Trott . . 61 Ivi INDEX OF ENGLISH CASES. Ilamor r. Knowlos . Ilunulton r. Hell • r. Chuin . (Duko of) I'. Iloetor . r. Voro Ilammack i: '\\lnto . Ilainmerslej' r. Do Biol PAGE . 427 . 491, 495 . 4<)I Graham 301, 430 . 596 . 584 22, (528 . 745 Ilninincrsmith l'. Brisco c. Butler v. Do Pinna . I'. Dignum . V. DrewG 369, 370 . 780 68, 679 77 407, 529 . 259 616 89 • V, Eyding ■ V. Shaw • V. Thompson ■ V. Trueman . /87 . 413 404, 611 524, 526 . 588 . 725 . 30 585, 586 331, 333 . 150 . 436 428, 433 . 449 . 196 . 494 PAGE Harrison, Ex parte . . . 489 V. Andorston Foundry Co. . . . 567 V. Blackburn . 405, 458 f. Bush . 184, 187, 197 r. Good . . .128 V. Gt. North. Rail. Co. 36, 44, 275 414, 415, 445 . 405 ■ • )•. Harrison V, Parker . V. Pcarco . . .214 r. Taylor . , . 559 r. Thorn borough . 170 Harrop v. Hirst . . .389 Hart ('. Aldridge . . . 584 c. Bassctt . . .11 v. Frontino and Bolivia Gold Mining Co. . 746 r. Gumpach . . .183 Hartley, Inre . . . . 682 V. HalliwoU . . 134 ('. Hindmarsh . . 146 Hartnall r, Eydc Improv missioners . Hartridgo, Ex parte Harvoy Brydgos ('. French . I'. Ilarvoy . r. Maine r. Walters . Ilarwood v. Groat North. Haselinton r. Gill . Hasser c. Wallis Hastings (Corp. of) Hatch ('. Lewis Hattersley, Ex parte Hatton *'. English . ('. Kean Hauxwell, E.r, parte . Hawos ?'. Watson . Hawko V. Brcar Hawker, Ex parte . Ilawkos V. Dunn Hawkins v. Carbines V. Plomer , Haworth ?-. Hardcastlo Ilawtry r. Butlin . Hay r. Weakley Haycraft v. Creasy . Hayley r. Racket . Haylock c. Sparke .658, 660, 680, 783 Raymau, Ex p, Hanson . Hills V. Evans .... V. Street .... Ililman, Ex parte Hilton 0. Earl Granville . (Overseers of) c. Bowes (Overseers of) ?•. Woods Hinchliffe v. Kinnoul (Earl) . Hinde v. Shoppard . Hinsley v. Wilkinson Hinton c. Heather . Hiort V. Bott .... i'. London and N.W. Eail. Co. . . Hipkins n. Bimi., &e., Gas Co. . Hirst r. Denham Hiscocks V. Jones Hiscox V. Greenwood Hitchman v. Walton lloaro c. Dickinson . V. Metropolitan Board . V. Silverlock . Hobbs ('. Midland Eail. In re Hobson V. Thelluson V. Todd Hoddesdon v. Grosil Hodges V, Windham Ennor Fernio Hodgson ('. Duce ('. Gascoigno • ('. Scarlett ('. Sidney . V. Townmg V, Williamson IlodsoU V. Stallebrass ■ ('. Taylor Hodson V. Walker . Hoe's Case Hoey ?'. Felton Hogarth v, Jackson . Hogg V. Scott . V, Ward . Holborow V, Jones . Hodgkinson 448 093 573 33 252 344 348 387 302, 304 792 132 220 500 511 75 575 704 447 529 296 292 169, 198, 207 Co. . 773 . 244 . 482, 708 . 378 . 285 . 593 365, 378 031, 723 . 391 . 098 182, 183 64, 65 . 690 . 269 80, 583 . 588 49, 382 . 706 . 46 . 542 93, 551 . 152 . 789 302 Iviii INDEX OF ENGLISH CASES. im Ilolcomo V. Rawlins Iloldeu r. Wcekt-s . Holder v. CoateH IIoldomcHs ('. Liiinport r. llankin lloldriiigtihaw *'. Rug PAGE . 40« •119, -122 . 4io . 5:}.'J 491, •J'J4 . ;J84 . 500 ;«iG, 'Ml 54!), 550 IIoldHworlH r. McCiea Hole /'. Barlow r. Uradbury r. Sittingbourne,&c.,Rail, Co. . . . 100, 017 r. Thoma.s . . . 42G . 037 Ilolford r. Ooorgo . Ilolkcr V. Poritt IIolland'H Case . Holland r. Hodgson r. AVoiloy . Ilolliday i: I'amsdl . Hollier v. Laurie Hollins r. Fowler . r. Verney . Ilollis r. Goldfinch . (', Smith HoUoway r. HoUoway i; Millard r. Turner 273, 279 . 057 . 527 . 395 . 525 090, 710 502, 518 293, 330 400, 443 . 58 . 580 . 250 . 79 . 443 . 359 Holmes r. RoUinghnm r. Goring . r. Lond. & N. W. Rail. ("o. . . . 571 r. Mather . . 19, 23 ('. North-East Rail. 315,317 ■ r. Onion . . .100 r. Wilson . 50, 3G1, 400 Holroyd r. Brearo . . . 051 ?'. Marshall 270, 281,459,400 Holt r. Frost .... 097 r. Gas liight and Coke Co. 752 I'. Rochdale, Corporation of Homan, Kx ]iurtv Homo c. Grimblo . Homer r. Taunton . Honywood r. Honywood Ilood r. Nowby i: N. E. Rail. Co. 010, 729 400, 470 770 200 415 243 73 772 701 535 Hooper r. Bourne r. Bristol Port Rail. Co r. Gumm . V. Lane 090, 094, 702, 705 r. Truscott . . .187 Hope r. Hayley . . .460 - — ('. Hope . . . 598, 003 Hopkins v. Crowe . . 150, 770 • c. Great North. Rail. _Co. . . . 543, 544, 700 Hopkinson c. Burleigh (Lord) 530 r. Lovering . .241 . 052 Hopper, //) re . ■ c. Reeve . ". Warburton Hopwood V. Schofield 140 (554 410, 412 V. Thorn . 171, 175, 193 Horn I'. Bakor . r. Swinford V, Thoniborough Hornamann i-. Bowkor Ilornblowor r. Boultou r. Proud Homo r. Widlako . Ilornidgo t'. Cooper . Horrocks c. Metrop. Rail Horsfall v. Holland . V. Thomas . Ilorwood I'. Smith . Hosking i'. Phillips FAOB 484, 490, 493 . 49, 103 . 777 Hoskins v, Robins Ilossack V. Gray Hotten V. Arthur Houghton V. Butler Iloulden i'. Smith Houldsworth v. City of 01 Bank . Hounsell v. Smyth . Househill Coal and Iron Neilson Housin ('. Barrow . Howard v. Crowthor ('. Jommott r. Lovegrovo r. Wood . Howdon V. Standish Howell ('. Jackson . Howes r. Young Hewlett r. Ilaswell r. Tarte . Howton V. Frearson Hoyo V, Bush . Hubbard, A'a; parte . r. Bagshaw ?•. Lees Hubert v. Groves Hucklo V. Money . 78, Huddart v. Grimshaw Hudson's Trade Mark, Jn Hudson V. McRae . r. Roberts . Tabor . Buckland Little . V. Percival . Hull r. Pickersgill . Hume v. Oldacre Humfreys v. Mears . Humphrey v. Mitchell Humphries v. Brogden V. Cousins Hunsden v. ChejTiey Colson Cooper Harris Maniere Peako V. French . V. Westbrook Huntley v. Russell . • V, Simeon . Hughes Hunt V. Hunter Co. 482 503 484 294 482 701 430 732 452 408, 409, 411 287, 399 . 633 . 550 . 499 . 655 asgow 740, 747 . 622 Co. V. . 566 . 706 . 64 . 497 . 79 . 33 . 684 142, 156 . 700 . 748 54, 55 . 304 . 718 . 401 484, 490 . 592 . 11 81,16.3, 164 . 563 re. 577, 578 616, 665 . 133 . 297 777, 781 457, 461 106, 426 . 97 . 95 . 730 . 702 427, 433 . 305 . 737 . 203 . 686 . 444 . 507 427, 429 . 229 . 523 . 418 . 224 INDEX OF ENGLISH CASES. lix North Eastern Hurdman i'. Eail. Co. . . . Hutchinson r. Lowndos . V, York, Nowc. PAGE 362 671 &c. Eail. Co. Hutchison r. Birch . Ilutton V. CruttwoU lluxloy i: Berg I'. West Lond, Iluzzey V. Field Ilyams c. Webster . Hyde V. Graham 116 . 600 . 255 . 78 Eail. Co. 787 . 107 . 107, 618 . 384 I'AxsoN I'. Stuart . Ibbotson I'. Peat Ihloe ('. Honshaw . He's Caso .... Illidgo r. Goodwin . Ilott V. WilkoH . . 47, Imperial Gas Co. r. Broadbont . Imray r, Magnay . luchbald r. Barrington . V. Eobinson Indormaur r. Dames . 313, Industrie, The Ingle V. Boll .... Ingram i: Lawson . . 81, Inman r. Eeck Insole, Be ... . lona, Tho Irons ('. Smu..,)i^ce . Irving r. Wilson . 33, 718, Irv/in ('. Brandwood V, Dearman . 585, 588, V, Grey .... Isack i'. Clarke . . 498, Ishorwood, h'x parte Ivay ('. Hedges Ivcson I'. Mooro Ivimoy c. Stockor 329, 344, 345, Izard, Kc jmrte Jacklix v. Fytcho . Jackson r. Calesworth r. Cator • ('. Courtenay i: Hill & Co. r. Peskcd . r. Smithson Jacobs i: Humphrey r. Seward 423, 424 Jncobsohn c Blako . Jacomb r. I3odgson . V. Knight . James, Ex parte V. Biddington t'. Boston ('. Campbell V. Gt. Western Eail. ■ ('. Hayward 293, 457, 16G 362 579 646 43 144 392 686 392 392 314 629 155 169 629 237 633 448 779 173 589 14 504 241 314 11 356 492 47, V. Parr J' r, Phelps 784 786 311 141 112 . 407 . 133 698, 710 , 4J5, 525 126, 724 . 679 . 307 . 700 . 594 190, 197 140, 165 Co. 625 613, 617, 637 . 576 . 222 James v. Plant V, Eutlech . r. Swift Janson v. Brown Jarmain v. Hooper . Jarman v. WooUoton Jarrett i'. Kennedy . Jarrold r. Houlston Jarvis r. Dean (3 Bing. 44 r. (11 Moore, Jay, Ejc Jay no v. Joans r. parte . Price . Whoedou Jefferson c. Durham (Bishc V. Jefferson Jefferys v, Boosoy . Jeffries r. Gt. West. Eail V. Williams . Jegon ('. Vivian Jcnings r. li'loronce . Jenkins /■. Hutchinson ('. Turner . ('. Usborno . Jenkinson, In re Jenner r. A' Beckett Jennings t'. Ilundall Jesser r. Gifford Jessop's Caso . Jessop I'. Crawley . Jewitt r, Erckhardt Jezoph ('. Ingram Job t'. Potton . Joel r. Morison Johann Sverdrup, Tho John r. Bacon John Fenwick, Tlio . Johnson, Ex parte . V. Barnes . 359) Pof) Co V. Credit Lyonnais Co. /'. i\ r. Emerson Fesenmeyer . Hudson . Lancashire & York- shire Eail. Co. Lepard . Leigh PAGE . 308 . 172 . 784 608, 609 693, 712 250, 497 . 733 550 610 314, 622 470 410 221 421 408 547 522 . 379 . 387 . 30 . 733 131, 133 . 480 . 488 . 169 . 121 410 567 716 559 249 425 110 633 313 629 461 350 473, 479 233 254 212 511 251 688 748 504 524 537 407 255, ■ r. Pyo r. EoyalMail.S.P.Co. r. Stoar . . 500, r. Windlo . Johnstone r. Sutton . 31, 126, 222, 723 Jolliffo ('. Wallasey Local Board 782 Jolly I'. Wimbledon, &c. Eail. Co Jombart u. Woollott Jones, Expartc(L. E. lOCh. 663) (18 Ch. D. 109) V, Barkloy i\ Bird V, Boyco . V. Brown (1 Esp 751 495 700 122 34 379, 724, 730, 783 . 42 217) . 586 I Ix INDEX OF ENGLISH CASES. Jones r. llrown (25 L. J., l"iX- •Mo) — — c. (']\uj)nian . r. l'liu]>iioll . ■, • i\ Con)<)rution of Liver- ])()0l . . . • Cuiliiif,' 1 )iiiip'i tii'ld Dowlo. Fcstiniog IJail. Co. I'AOE 408 Gooduy Iliirrin Unit . JIciiio JIoWl'll Johnson Jonns . 7 Mtickio Nicliolls (Iwcn . IVarco rcjipevcorno I'lrry . 1 'opo . I'owoll Eobin . Sawkinw Sparrow ;iHH, V Qiighan Williams 101 7H7 420 o08 ;{7:{ 7S.5 . 4().5 . olO . 171 . 77.> . ol7 1, asi, 3i»o, ;}ii7 . 214 . 78;j . (i.M> Mo 477 i;y (184 ;j(io 298 5.'} 87 718 oo\), ;i«2, 280, c. Jordan Jordin Jory c. Joseph •toulo r Jubb (• Judge Jupo r. . AVilson . "Wood . V. Alooro r. Crump Orchari' r. L^-'-./a . Tavlor . IIu'll Dock Co. r. Cox . , Pratt . (8 M. &W. (IIM.&W.) 170) (13 M. &^Y. 423) 705 396 788 4o9 710 j(;4 o()9 717 459 781 774 . 134 503, 570, 571 144, iO-J K.VLTENllACH V. Lcwis . Karct r. Kosher Meat Supply Ansociation .... Kavanagh c. Gudgo . 50 Kay i: Grovev .... v. Marshall r. Oxley .... Kearney r. Lond. and Brighton Kail. Co. . . Kenrns r. Cordwainers' Co. Keble r. Hickeringill Keen r. Millwall Dock Co V. Priest . Keeno v. Dilk . Koighly f. Bell Kelk V. Pearson Kelly V, Hutton 0,8, 31, 379, PAGB Kelly r. Lawrence . . . 701 r. Morris .... 550 /'. Sherlock . . 87, 214 r. Tinling . . . 20;} J '•".Hack r, NicholHon ■ . 448 Kemp r. Neville . . 159, 051 c. l{o80 .... 053 KonipHton r. Itutler. . . 300 Kendall r, ■Wilkinson . .072 Kondillon r. Maltby (Car. & M. 402) . . ' . . .180 Kensit r. Gt. Eastern Eail. Co. . 27 1 Kent r. Gt. "Western l{ail. Co. 32, "81 Kent Coast Pail. Co. r. Lond. Cliathani, and Dover Pail. Co. 770 Kent r. Worthing liocal Board. ()20 Kenyon r. Hart Kcppel r. Bailey Kerbey r. Deiiby Kerford r. Mondel Kcu'shaw r. Bailey Key, A'a; jmrte . Keyso r, I'owell Keyworth r. Hill Kidd r. Pawlinson Kidgill /•. Moor Kilner, h'x parte Kino )'. Evershed r. SewoU 478 407 384 718 504 303 22 615 302 113 511 514 181 395 577 384 280, 281 . 690 . 505 . 180 . 700 . 430 122, 519 . 249 409, 410 . 256 Kinf A'.i' jKirte r. Iloaro r, Luke 777 187 255 94 174 537 . 499 . 102 453, 473, 477 . 712 t lb, 170, ('. Milsom r. Rose . ('. Spurr Kingsford v. Merry . Kinning r. Buchanan Kirby Hall, The . . . 630 Kirby r. Simpson . 674, 778, 785 Kirk r. Todd .... 62 Kirkin v. Jenkins . , . 661 Kirkley i; Hodgson . .488 Kitchen r. Canijjbell . . 54 r. Ibbotson . . 497 Knapp V. Lond. Chatha^i und Dover Pail. Co. . . 312, 744 Knight V. Pox . . .105 • r. Gibbs . . .179 ('. Mosely . . . 422 r, Pursell . . . 444 Knights i: Wifion . . . 454 Knock I'. Metropolitan Rail. Co. 755 Knott r. Morgan . . . 574 Knowles r. HorsfaVi . . 494 V. Richardson . . 3 Kramer r. Waymark . . 26 Krehl c. Burrell . . . 395 r. Gt. Central Gas Co. . 243 Krom r. Schromakor . .125 Kurtz i: Spenco . . .572 V.B.- Lacon v. Liffon Lacy V. Kinaston 594 256, 490 . 538 INDEX OF ENGLISH CA3ES. Ixi Lacy V. Ehya . Laduury, Ejo parte , Lado I'. Shophord Ladyinan c, Oravo . Lafoiio V. Smith Laiiif^ i\ Whiiluy Laird r. Uirkonlioad Rail, f. Hriggs Lake ('. King . Laiiib'H Cttso . Lamb c. Attonborovigh r. Ihiriiott r. I'ulk . Co. Walker La Mort, A'.r jiarte . Laming r. Webb Lamnio r, DorroU . Lancaster r. Eve lianc. and York. Rail. L'o. EvanH . Lane. Canal Co., A'l- parte r.rarnaby ;U4,;JH) Lane. Waggcm Co. r. Fitzliugh oOl Lane. ('. Applogato . r. Cotton r, iJixon Lang i: Gisborno Longford r. Foot Ijangley r. Hammond Langnioad, Kx parte Langridge c. Levy . Lansdowno c lian.sdowno Lapraik c. IJiirrows liurcbin c. Nortb-Woster ])osit IJank . Latbropp c. Marsh Latimer c. Batson litttter r. HraddoU r. White Laugher c. Brefitt ■■ - - r. r.-iintcr Laughton r. Sodor PAOK . 654 . 241 . 441 . AWA 213, 214 . ;}7H . ;ui . 4;i8 . 188 . 210 . 477 48, 145 . 110 . 81 . ().jO . 113 52 . 202 a Do- . 4(i() . 422 . 240 . oO . 507 . 513 100, 101, 374 and Man . 205 (BiMhop of) . Lawless c. Anglo-Egypt. Cotton Co 185 Lawrence v. Gt. Northern Rail. lOG Co. . /'. Iledgor I'. Hitch . c. Jenkins ('. Obee . Lawrenson c. Hill . Lawson r. Carr • V, Weston . Lax V. Darlington (Corp. of) 30, 37, 7G3, 7G4 . 152 . 545 . 290, 390 . 353 GOO, GGl, G74, G75, 778 . G29 538 54G 403 559 Layton r. Hurry Lazarus c. Charles . Lea Conservancy Board c. But- ton (12 Ch. D. 383) . 443, 406 Lea Conservancy Board v. But- ton (6 App. Cas. G85) . . 443 Leader v. Moxon . . 12G, 725 7G1 489 54 ], 12G, 7l.'4 . 3(i() . 573 . 093 303, 308 . 489 735, 73G . 417 . 534 Loader i'. Rhys Loaf, In re. . , Loame i\ Bray Loaroyd r. Robinson Loary c. I'atrick Leather Ch)th Co. *'. Cloth Co. LeatlioH ('. Loathes . Jjoatt r. Vine . Lerontiehl (Ijord) i ('. Lonsdale Loo, Kr parte . r. Barnes . r, Bayos . r, Gansell r. Haley . c. Hart . r. Jones . r, lianc. and Yorks. Rail. r. Jjopes . i: Milner . ('. Riley . c. Robinson /'. Stevenson /'. Vcsoy . licoch *'. North PAGE . 790 . 570 18, 372 . 479 , 070, 071, 074 , American . 578, 580 . 535 . (iG5 Dixon . 345 . 291, 037 . G42 . 457 J49, 453, 500 . (589 . 573 . 248 . 732 53 . (598 . 702 . 128, 129, 389 . 453, 500 . 282, 310 . 719 Staffordshire Rail. Co. i: Schweder . Leeds (Duko of) i'. Lord Am- herst Leek c. North Staffordshire Rail. Co Lees c. I'attorson Le Fanu r. Malcolmson . 023 298 410 Legg r. I'ardoo Leggo r. Tucker Leigh r. Dickosou , —^ r. Webb Leith V. Pope . Lo Maitro v. Davis . Lo May r. AVelch Lempriero v, Pasloy Lo Neve r. MiloEnd, &c. Vestry Leonard r. Baker V. Wells . Le Roi V, Campion . Leslie v. Guthrie ('. Pounds Lestrange v. Rowo . libridgo V. Phillips r. Winter ' in ('. Gooddon . .y c. Edwards v. Moylan ('. Rutloy Leward r. Baseloy . Lewis, Ex parte >'. Branthwaito ('. Clement V. Davis . V. Hammond . Levy . 023 . 161 76, 209 . 665 16, 789 . 425 . 220 . 230 300, 331 . 558 . 492 G12 249 . 575 . 649 . 484 100, 376, 377, 622, 623 . 437 . 505 . 609 . 544 . 155 . 656 . 552 47, 145 . 470 . 430 . 198 . 564 . 33 182, 199 Ixii INDEX OF ENGLISH CASES. PAOE LowiHt'. Marling (10 B. & C. 22) r,o{) r. (l {.". & V. .)2) r>(]o c. llochi'i'tcr (MiiVDV <>1) ■ "•'*<> .•. Wiiltor . ■ . IW, 218 I,oy r. I'otor .... 207 licyluiid r. Stowiirt . ' "If I,o"viiinii '•■ I.iitiinrr . . • 172 LiiUtor I'. Honow . . • 7"<) liiubi^'H Kxtriu't (if Mwit To. /•. llunb\iiv .... *''" Lifonl'HCriso . . 282, 3i;J. 4n(l Jiiggins r. Iiiro . . . 3«1 liimpuH V. Loud. Gen. Omu. Co (liiniito(l) ... liiiicoln Collogo'H Cuso . Lintlon r. Hooper . i'. Shiirpo ].iii(lgiiy t'. Cundy . liinforii V. Oudgeon V, Tiftko Lingard v, Mossiter . liinghiun r. JUggs . . 484, liingwood r. Oydo . V. StDWiimikot rupev 109 o(i8 ;J98 2.')4 4dl 714 82 488 488 ;m4 Co. 392 DavicH 567, Tiinoloum Manufacturing Co. r Nairn .... Ijion, The liiHbunio (Earl of) r LiHtor V. Leather I'. Terryman Litchfield r. Ready . liittlodalo, Kr parte . r. Scaith . liiverpool Adoljjhi, &c. r. Fair- hurst . . 123, Loan Co., I',.v purte . Now Cattle Market r. Ilodsou (Rector of), Ex parte r. Hood Wilson . . 321,438 r. Rawyard's Coal . 387 (•.Lyndon 545 . 484, 490 . 579 . 74 r. Peell . . ()6 V. .Sandilands . 689, 690 Llynvi Coal and Iron Co., Kx Livesay liivott I'. Livingstone Co. Llandaff Market Co. Lloyd, Ex parte c. JJottomloy V, Burrup 577 633, 034 265 571 225 406 489 542 748 705 365 434 496 parte Co. V. Brogden Load V. Green Lochlibo, The . I/)ok V. Ashton liocko V. Matthews . Lockley )•. Pyo Loeschman v. Machin Lomax v. Buxton . London's (Bishop of) Case 240, 241 . 387 . 486 . 634 . 165 . 268 . 612 450, 452, 521 . 255 542 London (Bishop of) \\ Web PAOE liondon B. & H. C. Rail. Co. v. Truman ... 37 (City of) r. Wood . 003 ( 'hathuni & Dover Rail. Co., In re . . 771 (Corporationof) r, RiggH 293, 304 Cotton Co., Tfc (Mayor of) r. Hodgor . 413 & County Banking Co. r. Groomo & Devon Biscuit Co., lie .... & N. W. Rail. Co. V. Ackroyd . & N. "VV". Rail. Co. *•. Bradley . 34, 759, 764 & N. yi. Rail. Co. r. Lancashire, &c. Rail. Co & N. W. Rail. Co. v. Skorton . cL N. W. Rail. Co. v. Smith & Provincial Tol. Co., Ik , & H. W. Bank r. Wont- worth & S. W. Rail. Co. <•. Blackmoro . 772, 773 & S. W. Rail. Co. r. Oomm . . . 771 & Westminster Loan Co. V. Chaco . . 463 Longman v. Tripp . . . 484 Longmeid v, Holliday . 620, 736 Longstnff w Mcagoo . . 529 Lonsdale (Earl) v. Curwen . 391 602 413 £38 691 432 764 391 623 758 740 539 . 413, 416, 417 /'. Nelson . 397 r. Rigg . 541 Looker r. Ilalcomb . 157 Loosemore v, Radford 80 Lord V. Sydney (Conimra .of). 440 Lord Advocate v. Blantyro (Lord) . 438 Losh V, Hague 564 Lotan ?•• Cross . 523 Loton V. Dovereux . 713 Lousley v. Hayward 436 Love V. Bell . 428 Lovell V. Martin 537 V, Simpson . 99 V, Smith 352 Lover v, Davidson . 553 Lovering, Ex varte (L. R. 9 Ch. 621) 488 Lovering, Ex parte (24 Ch. D. 31) . . . 488 Low V. Ward . 548 Lowe I'. Blakemor^ . 444 V. Carpenter . 335 r. Flox . 63 INDEX OF I:NULI8H CA8E«. Ixiii PAOE . 4a» . 415 . 242 . (170 350, oJ7 . 107 . 4»7 . (JH7 . ;JH7, 4()» . 170, 17;J, 17.') , 10, m, 08;}, j84 . 7'JO . 281,458 W. Ry. Co. (J24 . 250 . 288, 338 . 241 Kuil. . 771 . 738 24 Lowo r, Oovet . LowndoB I'. Norton , TiOwroy v. Biirkor , liowthor r. lludnor (Earl) LiicuH ''. Couko I', Mason Ludlow r. Browning liudnioru, In rr . ■ liukin r, OodsiiU TiUinby r. Alldiiy JiUinloy r. (iyo Lund c, C'anipboll Lunn r. Thornton Lunt ('. Lond. & N Liish ('. WilkiuHon Luttroll's t'aso Lybbo c. Hurt. Lycott r. Staff. & Uttox Co Lydo I'. Barnard Lygo I'. Nowbold Lymo Regis (Mayor, &c. of) i: Honloy . . . 15,117 Lynch c, Coranu's. of Howorn . 709 v. Knight 38, 171, 170, 180 V. Nurdin . 25, 43, 627 Lyndon's Trade Mark, fn re . 580 Lyne, Ex parte , . 49, 103 Lyon I'. Fwhrnongors' Co. 275, 270, 441 ('. Knowlos . . . 554 liyonH ('. Blonkin . . . 59(5 V. Do Pass . . . 449 r. Martin . . .107 Lythgoo V. Vornon ... 52 M'Andkew v. Bassett . .577 M'Canco v. Lond. & N. W. Ry. Co. .... 745 M'Clollan, tJx parte . . . 595 Macclosfiold (Mayor of) r. Chap- man . . 450, 544 ('. Pedloy . . 544 V. Walkor . .410 M'Combie v. Davies . . 502 MacCrea c Holdsworth . . 559 M'Dormott r. Justices of British Guiana 056 M'Donald v. Longbottom . 458 V. Rooke . . .220 M'Donnell v. M'Kinty . . 203 Ar'Dougall V. Claridge . . 193 Macdougall v. Knight & Son . 198 M'Dougal's Patent . . . 570 Mace V, Cammel . . . 497 V. Philcox . . 12, 437 MacEwan v. Smith . . . 480 McOiffen 1'. Palmer's Ship Co. . 112 M'Gowan i'. Dyer . . .99 M'Gregor c. Galsworthy . . 783 c.Thwaitea . 167, 199 I'AOE M'Uttttio, Ex parte . . . 400 Macholl ,: Ellm . . . 403 Mack <•. Potior. . . . 577 Mackay, Er piirte . . . 402 I'. Comniorcial Bank of Now Brunswick . '.Ml, 740, 747 V. Douglas . . . 249 McKon/.io r. British liinon Co. . 539 r. M'Lood . . 374 M'Kuwon r. Cotching . . 338 M'Kiunou c I'onson . . 731 Macklin r. Richardson . . 540 M'Kono »'. Wood . . . 133 M'JiUughlin >\ Pryor . . 101 M'Lood r. M'Ghio . . .513 v. Wakloy . . .201 M'Manus r. Crickott . 108, 110 M'Nco r. Oorst . . .478 M'Phorson r. Daniols . 212, 217 M'Swinoy v. llaynos . 295, 290 Madrid Bunk, Jte . . .711 Mugdalona Steam Navig. Comp. r. Martin . . . .137 Mugilalon Hospital (Governors of *•. Knott) . . . .204 Magnay v. Burt . . 30, 703 Magnot, The . . . . 029 Magor ('. Chadwick . . . 329 Maitlund r. Goldnoy . .218 Malachy c. Soper . . . 239 MulcolniKon r, O'Doa . . 291 Mallinson t: Mullinson . . 002 Malono c. Harris . . 281, 290 Manby r. Scott . . .122 ('. Witt . . . .193 . 506 Mancgaux, Ex parte Manchester Bonded Warehouse Co. V. Carr , Mayor of v. Lyons . 434 544, 546 Man. Shoff. & Lin. Rail. Co. v. Wallis . . . 346, 347, 400 Manchester South Junction Rail. Co. ('. FuUarton . . 37 Manders v. Williams . 523 Maugan v, Attorton . , 25 Munley c. Field , , 380 V. St. Helen's Can. & Rail. Co. .34, 35 620 Mannall v, Fisher . , , 50 Manning v. Wasdale . 292 Mansergh, In re • • 3 Manton r. Moore , 491 V. Parker . t • 506 Maple ('. Junior Army & Navy Stores ..... 553 Marfell c. South Wales Rail. Co. . . . 317, 346, 347 Margaret, The . . . .029 Margate Pier Company (The) r, Hannam .... 658 Maria, The .... 633 Ixiv INDKX OF ENGLISH CASES. Muri" .T()M(']>li, TIio . Muikhiini r. Cobli . MiirkH c. Kcldiimii . Miirkwick <■. llnidiiiKlumi MurllM)r..iiL'h(l)iikcol) i. Smut John .... Il!l, MiiriicMiii, Tlin . . fll. (iTJ, Muriiltis c. llartloy . MuiiuMf, /•-> I'lirti' Muisdt'U c. l-iuiriiHliiin iiiid Ytiikuliirr IJiiil, Co. . — - r. Mt'udoWH Marsh r. Coiimu'st . ('. I,na(lt'l' — r, MuikIi Marsliall r. Moiaii . r. I'osM i: L'lli'swator Navigation Co. Mar.xlialM'a (Tho) Cano . Marsoii r. I,ond. Chat. &lJovtT Uaih Co Martin, A'l- parte ,: Ikdl .... c. UiwitXoith.RaihCo. VAOK 4j:J, 171 . 7(5 . 2.»7 . 2in r. lli'a(htn . r. lu'uncdy. i\ I'odgur . r. I'oiter r. rridgeon ('. l!oo c. Sliopjii'i' . c. Strong r. Tt.'ni))i.'rloy Martindalo r. Smitli Martini c CoUis Martins r. T^ju'hcr . Martyn r, Juiowllv" r. ^ViliianlM 122 •i«;(i •liH) 7H7 •11)2 . j-11), o.)4 . 152 . (iOl . (CJ.'J . olH Htcam . 2!H, 4.'«) ■li>7 710 24, 1117 ai»j i)j 247 ;)S7 0()2 o28 i;i8 11)4 101 oOO 520 784 ') ;vM. 7h;j, 421,4'. 281, ;i4!) . ()2.> lifary Caroline, Tho ifary Hounscll. Tho . . 028 Marzialls /•. CJibbons . , L\l Muson V. IJarktr . . . 080 c. IJirkenheudCoui., &c. 783 V. Cn'sur . . . '6'J'i r. Ilill . . . . 27o r. lu'oling r. Mitchell r. Nowland r. I'aynter 131, 133, 301 . 238 . 403 . 685, 708 84 r. Samsbury . r. Shrowsburvundllorc- ford Kail 273, 323, 330 r. Tuci.(>r , . , 7<)2 Maspor c. l]nn\ n . . .501 Massam c. Hunter . . . 355 i'. J. W.Thorloy's Cattle Food Co. I'. Goydcr . V. Johnson . V. Sladen Masterman, Kx parte Masters v. Fan-is 574 . 306, 379 68, 670, 679 . 459 . 489 . 85 (\ Mntanli, /» re . ^father r. Fruser Mathern r. (Irecn . Matlmw c. Slierwoll Mathicson c Harrod Mutson ('. llaird — ■ ('. ( 'cioko ^fatts r. Hawkins . ^[l.n^lnln, //; n; Maiind r. Monm. Iliiil Maunder r. Venn . Mawby, A'j; imrtr Maxwell r. Hogg . May, Kr fnivlf . c. lirown . r. Uurdett c. (Ireat West. Eiiil. Co Mayall r. Iliuby May hew r. llerrick . /'. l.ockft . r. Maxwell v. Suttlo . Loud, and S PAOB . 44.1 W7, 529, 530 . 56() Mearn c Co. Medwav (Karl of) Meggy ''. In Nav. Co. c. Eoninoy 512 55(1 020 405 444 241 117 . 580 .
'. Sluiw . . 738 Meriton v. Cooinbcs . 360, 382 Merryweather r. Nixum . . 90 Mersey Dock Trustees v. Oibbs . 120, 725, 72(5 ^[erywether v. Turner . . 209 Mesnil (Baron de) c. Daykin . 33 Metcalfe r. Lumsden . .452 Meteor, The . . . . 634 Metropolitan Associat. v. Fetch. 410 Asylum District V. Hill . 34, 757 Bank r. Fooley . 233 — — Board of "NVoiks V. M'Carthj- . 755, 757, 758 Board of Works ('.Met. Bail. Co. 305 Bail. Co., and Cosh In re . . 773 Bail. Co. V. Turn- ham . . 794 INDEX OF KNGI.IHII CASES. Ixv I'AGE Metropolitan Huloon Oin. Co. r. IliiwkiitH . . . 1((S, 213 Mut/lcr i\ Wood . . . 373 Afoyorstoiii c Hiubor . . 472 Michiiol r. AloHtrei), . . 100 MichuU I'. HiighoM . . .04 c. WilliamH . . 227, 231 Mii'klothwuit »'. Nowliiy Britljfo Co 430 Micklothwiiito c. Micklothwiiito 417 MidilloMox, tShcrirt of, Kc parte , 242, 700 Middloton v. Pollock Midolton /■. Qalo . Midland luHuranco Co. v. Hinith. Midi. Kail. Co. Chockloy Daykin llaunchwood llrick Co. . Miloa . I'yo . 237 074 2, 85 431 347 Migotti r. Colvill Milan, The Mildrod v. Weaver Milford r. Milford . Mill r. Hawker V, Now Forest Coiuni. Millar v. Taylor Miller /•. Avis . r. David r. Miller V. Race . Millingan i: Pickon . I', Wedge . 754 . 431 . 239 . 722 27, 029, 035 . 008 . 001 731 325 547 99 180 110, 177, Mills 594, 595 530, 537 . 558 103, 104 Colchester (Mayor of) 310, 340, 545 V. Collott. I', Graham Milhvard r. Midland Rail. Co. Milne c. Marwood . c. Milne. Milton ('. Oreen Minor i: Oilmour MiushuU r. Lloyd . Mintor c. Wells v. Williams . Mires r. Solobay Mitcalfo !'. Westaway Mitchell's Trade Mark, In re Mitchell 734, 271, CrasswoUer V. Foster . r. Ilomfray ('. Hughes . ■ r. Jenkins . V. Tarbutt . Mitten r. Faudryo . M. Moxham, Tho . Moet c. Pickering . Moffatt V. Bateman . Mold V. Wheatcroft . Moloney v. Kennedy Money i'. Leach Monmouth Canal Co. Monm. Can. & Rail. Co. v. Hill 443 A. 0(>1 122 113 735 694 718 302 710 5G1, 503 . 571 . 505 . 427 577 .110 . 001 . 448 . 04 . 222 . 94 . 499 . 130 . 581 . 316 311, 312, 310 . 230 . 718 Harford 330 Eq. Moody ('. llaker V, Corbett ('. Steward . I'. Htiggli's . Moon I'. Rajihaul Mooro c. Ut.Houth&West.Rail. Co. . Hall . Lambeth Waterworks Co. . Metrop. Rail. Co. 108, Moore (25 iJeav. 8) (L. R., 18 " 474) Rawson Robinson . Watson Morain v. Devlin Morant r. Chamberlain Mordaunt r. Mordaunt Mordon c. I'ortor Moreland r. Richardson Moroton r. Hardorn. Morewood c. South Yor Co. Morgan c Oen. Omnibus r. Hughes . r, liingon . i'. Murciuis . /•. Met. Rail. Co r. Palmer . r. I'owell . ('. Ravoy . r. Seaward 5 V, Sim — — V. Stoblo . Morison c. Salmon . Morley c. Attenborough r. Clifford . i; PragncU . MorroU c. Martin . Morris i-. Ashbee I', liranson . ('. Cannan V. Edgington. V. Miller t'. Morris I'. Nugent V. Reynolds . V, Robinson . V. Wright . Morrish v. Murray . Morrison r. Gen. St. Nay Mors-le-Blanch i'. Wilson Mortimer r. CottroU r, Cradock i: S. W. Rail. Mortimoro r. Cragg. Moser, In re Mosloy V. Walker . Mostyn v. Fabrigas . Mott ('. Shoolbred . Mounsoy v. Ismay . Mountjoy's Case 310, , &c. Co.! 150, 454, 33, 59, 502, 452, 303, 413, Co. Co. 78, 450, 136, 324, 289, •AriK 178 773 789 292 513 756 380 020 118 704 449 353 520 791 124 012 124 065 435 94 460 112 659 168 526 767 778 388 17 506 22 65 675 482 285 362 517 550 564 489 304 392 417 508 652 481 650 088 629 79 390 511 766 691 242 544 722 408 340 349 I mm Ixvi INDEX OP ENGLISH CASES. Moyco V, Nowingtoii Moylo I'. JonkinH . Muirhoail, Kx juirte . Miilkern r. "Wind . Muller r. Mohh Mullet r. ChiiUiH . MiiUett r. Mason . Mulligan r. Colo MiiUincr v. :Mi(llan(l Eail. Co. . Mulvillo r. Fallon . Mumford, Kr jxtrte . V. Oxfonl, "Wore, & Wolv. Eail. Co. . Munday r. Thames Ironworks Co Munns v. Jslo of Wight Eail. Co. MunHter i\ Lamb . Murchio r. Black Mnrgatrovd i: Kobinson Murly r. il'Dt-rmott Murphy r. Caralli . Murray, Kr, parte . ' V. Clayton . r. Cunio r. Hall V. Mackenzie V. M'S\\'iney MuRgravo i . Bovoy . V. Forstcr V. Pulido . Itluskett r. Hill Mutton, Ex jiarte . V. Young . Myera i'. Defries V. Elliott 180, 277, •275. uGI}, 060, . 101, 120, 289, •AGE •lol ii;{ (iO 217 48!) 099 741 200 7715 ;tJ2 (iO 408 114 771 18;{ 280 1578 424 104 496 JOG 104 424 4GG 782 174 •Mo 722 S49 470 G97 787 457 Naole r, Shoa tfaitiev, Kx parte Naples, The _ . Nash V. Dickinson . National Bank, Ex'mrte . National Guar. Manure Co. Donald National Mercantile Bank. In re Ilaynes . . . 4G4, National Provincial Plato Glass Insurance Co. v. Prudential Assurance Co, . NavulshaTv v. Brownrigg Neale v. Clark .... V. Cripps ■ V. Day .... Neato r'. Harding . . 32, Needhaui v. l^awbone Ncilau V. Ilannay . Neill V, Duke of Devonshire 291, 341, • Ncilson 1'. Belts . 570, 572, V. Harford . Nelson's Case .... 261 641 788 G91 532 357 465 359 ■i7G 791 423 250 743 501 501 50, 616 573 566 355 PAGE Nelson v. Couch ... 57 ('.Liverpool Brewery Co. 377 Newbold v. Met. Eail. Co. . 761 Newbould v. CVdtinan 125, 678, 679 New Bruns., &c., Eail. Co. v. Conybcaro . . • 740, 740 Now iJruns., &c., Eail. Co. i\ ^Muggeridgo . . . • 740 Ncwby V. Colt's FircaiUiS Co. . 121 V. Harrison . . 289, 299 Nowcastlo(Dukeof)r. Clark . 405 V. Hundred ofBrox- towo . 387 ?•. Morris . 70*2 Ncwcomon v. Coulson 293, 295, 357 Newman, In re . > • •>*' )'. Bondyslio New Eiver Co. r. Johnson Ncwsani v. Carr Newson v. Pender . V. Thornton Newton v. Beck V. Cowio r. Cubitt . r. Ellis )•. Ilarland V. Newton . Nicholas v. Chamberlain NichoU ('. Allen V. Darley 664 757 . 225 . 358 . 474 . 535 . 557 , 544, 546 729, 780, 781 48, 381, 690 . 535 . 302 . 15 . 704 51, 369 . 468 Nichols r. Marsland Nicholson r. Cooper V. Lane. & York. Bail. Co. . . . 317 1'. Mouncoy • 126,631 Nicklin r. Williams . . . 39 NicoU c. Glennie . . 97, 518 NicoUs V. Bastard . . . 523 Nicols ('. Pitman . . . 552 Nicld V. Lond. & N. W. Eail. Co. . . . . 19 Nightingale r. Adams . . 515 Nitro-Phosphato and Odam's Chemical Manure Co. v. Ijon- don and St. Katharine's Docks Co 23 Nixon V, Eoberts . . . 635 Nobel's Explosives Co. v. Jones 571 Noden v. Johnson . .47, 48, 145 Norbury (Lord) v. Kitchen . 272 Norris v. Baker . . . 396 r. Seed . . . .162 Northam v. Bowden . 405, 521 Northampton's (liord) Case . 49 Northampton (Mayor of) v. Ward 441 North r. Cox . . . .287 - V. Gt. Northern Eail. Co. 515 V. Miles . . . .710 V. Smith . .109, 628 North Central Waggon Co. v. Manchester, Sheffield and Lincoln Eail. Co. . . , 461 INDEX OF ENGLISH CASES. PAGE North-EastBail. Uo. v. Ciosliind ;50j, 428, 433 V. Elliott . 305, 428, 432 North London Eail. Co. c. Great of) Nottinghnm Town Clerk' Notting Hill, The . Novello !•. Sudlow . Nugent r. Smith v. Yotzcra . Nunn V. Wilsmoro . Niittall V. BracowoU Nutting, Ex parte . 90 291 035 Northern Rail. Co. Northumberland (Diiko Houghton . Northumbria, The . Norton v. L. & N. W. Eail. Co. 772 V, Nicholls . V. Scholefield Norway c. Rowo Norwood )'. I'itt Nottago V. Jackson 777, Case 559 362 423 794 550 044 035 550 . 51 . 604 . 250 271, 279 . 489 547 47,141, Co. Oakes v. Turquand ■ V. Wood Oakfiold, Tho . Oakley v. Kensington Can Oates V, Hudson U'Brien v. Clement . Official Receiver v, Tailby Ohrby v. Rydo Comm. Oldacre v. llunt Oldham r. Langmead Oliver v. IJartlett ('. North-EasternRail.Co V. Oliver 98 . 055, 335, 3ijl, Collieries 441, Olliet c. Besscy Onley v. Gardiner . Ord, Ex parte . Orient, Tho . Original Hartlepool Co. V. Gibbs Ormeroa v. Todmordon Mill Co. Ormrod v. Huth . . 734, Orpheus, Tho .... Orr Ewing c. Colquhoun 439, Orr Ewing & Co. v. Johnston & Co. Osbond v. Meadows Osborn v. Gillett . . 70, V. Gough V. Jackson Otto r. Steel . . .501, Outi'am )'. Maudo Overend & Co. v. Gurney Overton v. Freeman Owen V. L. & N. W. Eail. Co. Oxley V. Watts 741 143 034 775 , 99 213 459 726 392 509 484 025 530 721 354 490 57 014 279 735 635 616 580 384 583 784 113 505 354 61 104 794 498 Packeii !'. WoUstoad Packington's Case . Padmoro v. Lawrence Pago Brothers, In re r. Cowasjee Eduljee Paget's Case . Paget r. Porchord . Painter r. Liv. Gas Co. Palcj r. Garnett Palk c. Skinner Palmez-'s Case Trade ^fark. In re Palmer v. ]''l(!tclier . ('. Grand June. Rail Pannell r. Mill Panton r. Isham . 371, r. Williams Papua V, Roso Pardo V. Bingham Pariente v, Ponnell Paris V. Levy . Parke v. Eliason Parker i-. Bristol and Ex. Eail Co. V. Crolo V. First Avenue Hotel Co. . . 380 V. Godin V. Gt. West, Eail. Co i\ Loach V. Mitchell . V, Norton V, Smith ■ V. Staniland . Parkes r. Prescott . ('. Stevens . Parkins r, Scott Parmiter r. Cou])land Parr ?■. Lillicrap Parrett Navigation Co. r. Eobins Parrington v. Moore Parrot r. Carpenter . Parrott v. Palmer . Parsons, Ex parte . V, Brown . V. Lloyd V. St. Matthew's nal Green Parteriche r. Powlett Parton r. Williams . Partridge r. Elkington V. Scott Pasley v. Freeman . ■ 735, Pater, Ite . I'. Baker Patrick v. Colerick Patricksoiv v. Patrickson Patten r. Kea . Patterson v. Gas Light & Coke Co. ('. Patterson Pattison v, Jones Pattisson v. Gilford . Paul V. Summerhayes Pauli, Ex parte Ixvii PAGE 35(5 413 187 241 500 421 248 148, 712 112 339 313 570 300 781 300 4, 409 222 052 87 480 202 495 Co 32 66 395 518 33 . 430 . 337 . 66 . £80 . 404 . 218 . 563 . 179 203, 209 . 791 616 157 170 92 460 221 705 150, Beth- 726, 717, 731 417 721 714 277 739 656 260 383 692 109 565 594 195 91 12 496 fW ■ ^'^fl^H 1 '^ J ' ' .'. .'li ^•' £. -■//■ ^; i» V: l^':' T;- r;: .ui)-iiiyuw!,(.»i(J5l(;»'i"Lf'. Ixviii INDEX OF ENGLISH CASES. Tivwly i: Holly I'awson r. Watson . I'ayno, Kx parte . ?'. Boauinorris • ('. Braiulor . /'. Chapman . - V. IJogorfl r. Shed(l<;n . Poac;eal>lo r. Watson Poachy c. Kowland . I'oacock, In re . i'. Ilcyual , Poako !'. Oldham Poarco, In re . r. Onisby . r. Scotfhcr . Pearson r, Lo Maitro PAGE . 89 . I'M 2j4, 2do, o;52 . 175 . 4j4 . 33 37ti, 377, G23 . 327, 3J2 . 2(il . 1()J . 443 . 210 . 171 . ()8« . 208 . 010 215 Pcaso ('. Spencer 303, 308, 350, 359 Chaytor 517,007,073,074, 075, 07!) r. Gloahcc Pechell ('. Watson . I'edf^rift v. Chevallier Podloy r. Davi.s 125, . 453,471 . 30 . 007 051, 077, 078, 07!>, 082, 718 Peek ('. Gnrnoy I'eol's Case Peer c. Iltimphrcy Peerless, The . I'ell I'. Northampton and Ban bury Eail. Co. I'oUas V. Breslauer . I'omborton v. Colls . Pembroke's (Earl of ) Case l*endlobury v. Groonhalgli Penfold V. Westcote . Penn v. Bibby (L. R. 2 Ch. 127) 01, 730, 740 . 741 450, i51 033 . 771 . 78!) 174, 175 . 288 . 731 172 501, 508 573 572 v. (L. R. 3 E(i. 308) V. Jack .... V. Ward . . 48, 141, 145 Pennington i>. Brinsop Hall Coal Co ()i Penny, In re . . , 007, 7(i5 Penruddock's Case . 00, 302, 390 094, I'onryn (Mayor of) v. Best Ponton )•. Browne . Penwarden v. Roberts Peppercorn r. Ilofman Popj)in V. Shakspear Percival r. Stamp . Porham, In re . Perkins )•. Smith V. Vaughan Perkinson v. Gilford Porrot V. Perrot Perry r. Fitzhowo . i'. Truefitt Porryman v. Lister . Potch V. Tutin . Peter v. Kendal V. NicoUs Peto V. Blades . . . . Potrio !■. Lament (Car. & M. 90) 544 08;) 404 718 343 702 . 001 . 110 . 82 52,01 . 413 71, 390 575, 578 . 153 281, 531 . 544 . 251 748 98 S. W, '>')•; Petrie v. Lament (3 M. &0. 702) Pettit, Lire . Peyton c London (Mayor of) . Phoysey /•. Vicary . I'hilips ('. Bir^.i Phillips c. Bacon r. Barlow . v. Barnet . V. Berryman V. Eyro V. Ilomfray V. Ilvith ?'. Janson . V. Jones c. London and Rail. Co ('. Naylor . Phillipson c. Gibbon I'hilp r. Squire l^hilpott r. KoUey . Philpotts r. I'liilpotts Pliilps V. Ilornstedt . I'hosphate of Lime Co Pickard v. Brotz . V. Marriage V. Soars c. Smith Pickering r. Busk . Pidding r. How Piggott r. Stratton . I'igot V. Cubloy I'iko ('. Carter . V. Nicholas I'ilgrim c. Southamii. , 221, . 255, Green 4()G, Co. Pilkington v . Cooke Riley . Pillcrs, A'.i; jxtrte Pillot r. Wilkinson . I'iudar i: Wadsworth Piiihom r. Souster . Pinkott r. Wright . Pinnington r. Galland Pippet ('. Hearn Pitcher r. King Pitt ('. Donovan Pitts ('. Gainco I'lant I'. James Plasterers' Co. i\ Parish Clerks' Co Plas-yn-Mhowys Mining Co., Re Player, In re . I'layfair r. Musgrovo Playford r. United Kingdom Telograiih Co. . . . Plimpton V. Malcolmson 500, 501, 505 V. Spiller . . . 505 PluckwoU r. Wilson . . 627 Plumor V. Plumor . . .593 Plunket ('. Gilmoro . . .96 Poldon i; Bastard . . 303, 350 Polhill r. Walter . . .735 Polkinghorn v. Wright . 47, 142 PAGE 101 240 306 303 . 151 . 786 . 415 . 124 55 1.35, 130, 723 01, 387 . 477 . 210 . 88 87 232 444 591 502 258 250 770 405 470 745 022 454 578 745 500 676 550 400 707 783 243 500 377 204 497 304 229 099 259 520 308 333 692 253 091 734 075, &c."Eail! INDEX OF KNGLISH CASES. PAGE Pollard, Tn re . . . . tioG rollcn r. Browor , . 48, 381 Pollock I'. LoHtor . . . a(!7 I'omfrct /•. Kicroft 'J82, 289, 202, 29,5 J'ontifex >\ MiiHtind Ry. Co. . 790 Poole V. Iluskinson . . f!(19, 612 PopLiun t: Pickburn . 189, 200 Popplowill V. llodkinson . . 279 Portalis c. Totloy . . .478 Portland (Duko of) r. Hill . ;}44 Postlcthwaito r. Gibwon . .718 Potter c. Faulkner . . . ll.j c. North . , . 320 Potteries, Shrewsbury, & North Wales Euil., Re . 692 r. Minor . . . 692 Potts r. Smith . . . 298 Poulsum r. Thirst . . .780 Poulton r. Load, and S. "West. Euil. Co. Pountnpy r. Clayton Pow r. Davis . I'owoll, A'.r }iarte r. Hall . r. Head r. Eoos. • V, Salisbury r. Thomas 108, 119, lo9 . 7o4 . 79 . 49.) 37, 373 '. M., S. & L. Eail. Co. - V. Watson 620 ■ (L. E., 2 Q. B. 336) . 653 am r. Master .... 685 - V. Watts .... 620 - V. WhitecrossStrectPri. on ^B V, Matliias .614 (Governor of) . 642 pW ('. Motrop. Board of Works - V. Williams . . 316 ,725 f ■ (3 B. & S. 710) 27G, 2"9, 757 - c. Wilson 122 ■ • v. Motrop. Com. of Sowers 761 - r. Wood .... 669 ,l ('. Motrop. rolico(Eecciver - r. Wood Ditton Sui'veyors 643 j^B of) . 641 Eeid v. Fairbanks . 512 WU V. Monmouth (Mayor of). 639, - V, Margison 685 ^H - r. Eeid . . .235 , 236 ^H • V. Munstor .162 Eeignolds r. Edwards 294 ^H r. Musson 437 Eevett V. Browr 406 ■ V. Mutters .621 Eev is c. Smith . .181 , 183 ^M • 1: Newport Guardians ';41 Eox ('. Abingdon (Lord) . 200 ■ ('. JNorth Mid. Eail. Co. . 039 - V. Aniphlit 211 i^l ('. rs'orwicli and Brandon - V, Arkwright . 564, 566 572 ■ Eail. Co. . .650 ■ V. Axbridgo (Mayor, &c., ^M V. Munnclcv 666 of) .... 647 ■ r. Urton Trustoos . 640. 646 v. Backhouse . 690 ^m • V. Oxford. &c.. Eoads 642 ('. Barker. 646 ■ V. i'avntcr .681 v, Barr .... 607 l^m V. i^arson ()(!4 c. Beare .... 210 H V. Pctrio . .610 r. Bedford Level 645 ^m ■ r. i'cttimancin 6()8 ('. Birmingham Canal Na- H • V. I'lndcr. 1()2 vigation . 639 B| V. I'onsford . (i40 V. Birmingham Rector 045 ■ r. I'ratt . .4^1 r. Birnio .... 662 ■ r. Eand . 653. 668 ?'. Braiigan 229 ■ r. Eichards 641, (iSl V. Brecknock, «&c.. Canal ^1 ''. Eiclimond Eecordor (Ul Co 650 H • I'. Eobinson (12 Ad. & E. V. Bristow 643 H 672) . .147 V. Buckingham (Marquis ^H v. EoeJioster(L»ean,&c.,of) 649 of) .... V. Burdett . .210, 609 M V. Eoso .... 6()9 211 H i: Evnd . .768 V. Burnaby 664 H V. Saddlers' Co. . 647 V. Cambridge . 645 ^H V. at. Jjuke's . 750. 756 V. Cambridge University . 646 ^H r. St. Martin's. G45 r, Carlilo 198 ^m ■ !•. St. Stenhon's . 645 V, Chalko. 649 ^H 1'. Salisbury (Marquis of). 544 V. Churchill 287 ^M V. Salop . .667 ^H '•. Scott .... 664 V. Clapham 644 V. Clear .... 640 ^H V. Scotton 6()1 V. Colchester (Mayor of) . 645 ^B V. Sheffield fMavor ofl . 731 V. Colebrook . 642 ^B V. Skinner .183 V. Coleridge 644 Ixxii INDEX OF ENGLISH CASES. Eox r G-i'2 PAGE Commissioners of Cus- toms . Coinmissioncis of Tower lIiiuiM.s . . .730 . ( 'rcovey . . . 200 . Croydon Churcliwiirtlcns G45, G40 , Cruntlon . Cuniborliind Justices . . Do Mannovillo . . Dobcrty . . . , Dowiishiro (Miiniuis) . Ely (IJiHliop vi) . . Essex . . Eavershum Eish Co. . Ouskin. , Grantham . , Oreenhill , Ilastinps (Miiyor of) , Hatfield , Havering Atto Bower , Ilendon , Uemiitago . , Hoseason Huggins . Ilchester Bailiffs, &c. , Ingrain , Ivens . , James . , Joyes . , Jotliaiu , Kent Justices, &c. , Loako . . Leeds and Solby Co. . . . , Leicester Justices Liverpool (Mayor of) . Lloyd .... London Dock Co. London (Maj-orof) (4 M. &R.G2) (4 T. K. 26 Lyme Eegis (Mayor of) Midhurst Milverton (Lord of) Mitton .... Montacuto (Lord) Mooro . . , , Morpeth Ballivos . North Riding, &c.. Jus- tices .... Norwicli (Dean, &c., of) Nottingham Old Water Works Co. . Oxford (Mayor of) Pagham (Comnussioners 12 2;w 014 042 730 04(5 ()47 04:{ 595 030 441 C3i) 040 356 007 133 (543 . 044 . 13 . 054 . 043 646, 648 . 639 . 611 Eail. 762, 708 . 042 048 007 759 050 404 046 042 042 518 642 128 646 639 046 766 645 oil rayn . Peaso . Pedly 375, Pilkington Eeed . Revel . Richardson 1, 2, 48, 383 643, 044 . 36 376, 3 7, 622, 023 . 050 . 221 . 008 . 648 Eox V. Eipon (Mayor of) t'. Eislip V. — (', PAOB 121, 650 . 212 Eosowell . . . 39(5 St. George . . .138 St. Nicholas . . 649 Sovorn and Wyo Eail. Co. . . . 616, 640 V. Sillifant . . . (i42 r. Smith (2 Str. 703) . 3Mi, 002 Byliinds c i-'lotchor . 303, 308, 370 Sac'Hkveukll r. Tortcr . Siidlcr r. Ik-lchor 1: lleidoL'k . Siid'ory, JJ.C iKtrtc Siififrill I'. Milwiird . . . St. Alban'8{I)ukoof) r. Skipwith St. Doveroiix v. Mudi Dow Church St. Oonnun's (Earl of) c. Crystal I'alaco Kail. ('o. , St. llelcn's Smelting: Co. r.Tip- piii}^ .... 300, St. Margarot'H, Kochestcr (Burial IJoard of) r. Thompson . St. Martin's, Birmingham (Ecc- tor of), Er parte , St. Mary, Nowington v. Jacobs St. I'aiicras Yostry v. Battcr- hury . . . Salisbury (Marquis of) v. Glad- stone .... 344, Salisbury (Marquis of) v. Great North Eail. Co . Salmon v. Bonsley . Saltash (Corporation of) c. Good- man Salter I'. Metrop.Bistr.Eail. Co. Salting, Kx jiarte Salvin r. North Brancopoth Coal Co SammoU v. Wright . Sampson v. Uoddinott V. Smith . Samuel v. Buller V. Payno Sandback Charity Trustees v. N. S.Eail. Co. . Sandford r, Clarke . Sandon v, Jervis Sandwell, In re . . , Sandwich (Earl of) v. G. N. Bail. Co. .... Sandys, Ex parte Sarazin v. Ilamel . Sarch v. Blackburn . Saterthwaite v, Duerst . 283 40.J 470 128 419 592 272, 392, 771 394 437 434 441 73 420 440 397 _50 753 98 367 101 328 036 704 153 794 85 089 242 272 649 559 133 585 Saunders r. E'lwards r. Mills . V. Newiuu.': ,.. r)li(V„ i\ Smitli . Saundcrson r. Baker Savilo r, Jardino t'. Eoborts Savin r. lloylako Eail. Co, PAGE . 08 . 198 . 328 . 355 90, 551 . ()92 KiO, 170 29, 30, 230, 231 . 040 Savory r, I'rico Suwin 1: Guild Suxby r. Eastorbrook 500, 507 . 571 E. 7 207) 573 (L. E. 3 D. 339) . 90, 217 £ c. r V. Ilcnnott r, Manchester Euil. Co Saxon ('. Castlo Scarfo V. Morgan Scarth, /;* re . Scattergood /•. Sylvester Scliolefiold r. Tomplor Scliove V. Schmincko Siiulte, Ex parte Scluiringe r, Dowcll Scliustcr c. M'Kellar Schwalbe, The . Scott, Ex parte V. IJixon V. Dub. and Wickl Co. . ('. London Dock Co. )'. Mancli. (Maj-or of) ('. Marshall . V, I'apo . r, Porcher . V, Sampson . I'. Scott . I'. Seymour (Lord) . v. Shepherd . V. Stanford ('. Stansfield . 508 371 . 30 . 505 . 481 . 451 . 740 . 54 S . 443 . 008 . 518 . 033 500, 508 730, 740 Eail. 24, 20 22, 019 35, 120 . 710 307, 359 . 473 . 210 . 031 135, 130 19, 42 . 550 . 183 . 490 . 566 . 438 415, 410 404, 470 . 182 c. Surman and Young, Ex parte Scratton r. Brown . Seagram v. Ivnight . Seal V. Claridgo Seaman v. Nethcrclift Searle v. Law .... 535 Sears v. Lyons. . . 39, 380 Searth, Re . , . .00 Seddon v. Seddon (30 L. J., V. & M. 12) . 592 V. (2S.&T.040) 001 Sedgworth v. Overend . . 77 Soixo V. Provezendo . . 580 Selby V. Cnst. Pal. Distr. Gas Co 610 V. Nettlefold . . .294 V. Eobinson , . . 288 Selmes v. Judge . . .781 Semayne's Case . . . 688 Semplo V. Lond. and Birm. Rail. Co 392 INDEX or ENGLISH CASES. Ixxv ♦ PAOE Sonhouse c. Christian . . 203 Honior i: Modlund . . . IHO — ^ V, ruwtiou . . ■ HO.) r. Ward . . 24, (iO.") Horff r. Acton liocal Hoard . 'M-i Soioku r, Kuttonburg . . 12.'| SoncH I'. I)od . . . . ol(> Siiymour i<. Orcon\ d 107, 108, 110 yhiidwoll I'. llutcbn..«)u (2 B. & Ad. 07) 37, :i(H, 412 V. IIutchinHon (M. & M. a30) . . . . _. 410 Sliiift'ors I'. General Steam Nuvi pition Co. Shurlund r, Mildon . fcfhurp, Kx parte r. I'owell Shurpo ('. IJircli ('. IJrico ('. ILuu (ick . SimpHon v, Tliompson V. WoUs . Shattoik ('. Cardon Shrttwell c. Hall Shaw, In re V, Ilarvoy ('. Woodcock 113 . 90 . 238 40, 4j . 405 . 78 . 273 . 70« . 770 . 487 491, 496 . 32 Shears t<. Jacob Sheen, J'Jx parte Sheers i; Brooks . . SliofTield Building Society v Harrison ... ShoUey v. Westbrooko Shcphcard r. Payne . Shepherd v. Harrison V. Hills . V. Wakcnian Sheppard v. Union 406 235 088 Bank Load. Sherborn c. Wells . Sheridan's Case Sheridan v. M'Cartney . V. New Quay Co. Shipley v. Todhuutor Shirley v, Wright . Short V. Kalloway . Shower v. Pilch Shrewsbury's (Earl of) Case Shury v. Piggot Shuttloworth t: Ilornaman V. Lo Fleming Sibley j'. Iliggs Si both. Ex parte Sichol V, Lambert . Siddons v. Lawrence V. Short Siegei-t V. Findlater . Sievers v. Boswell . Simmonds, Jarte fn re . V. Baker 1'. Birm. Gas Co. ■ V. Bonsall V. Bromley . f. Bull. V. Cannon ■ r. Chadwick . V. Cheese V. Cherrill . V. Criclifiold . • I'. Edge Eoverell . Fletcher . Gt. East, lliiil Gt. West. Hail ('. Harnor i<. Hodson V. IIoj)per . 7 V. Hudson . r. Iveal V. Kenrick . I'. Lawrence. V. Lloyd V. Iiond. and N Eail. Co. V. Lond. and S Eail. Co. V, Lond. Dock Co, V. Millos V. Musgrave V. Powdich . V. Pritchard V. i\ 577 Rail. . 20 400, 401 . 633 20, 94 . 301 Rail. 125, 620 593 542 294 146 704 63 498 110 734 46>' 741 241 698 711 Co. Co 427, 434 . 740 . 681 . 641 . 52 . 117 . 283 , 33 . 136 . 254 . 741 . 466 . 230 . 694 . 791 . 378 . 369 . 133 . . 755 . 790 . 52 776, 780 . 496 . 712 . 370 . 101 263 573 W. w". 79, 73 316 522 370 14 125, 711, 713 1 XXVI INDKX OF KNOLISII CASES. :i ' ! if. I I I I i Hiiiith i\ Slmw . c. Shirloy 17 I'AOK 77') (IN lu- SllMlp Smith (L. R., U Kx. 2N'J) . . 772 ,.. (L.R.,20Eiiif,' . • • "l*"^ Wt'Mt 1 )i'rl)y T/oral Hoiiid . . . 7H;i AViltsliiro . . . 721 AVood . . .210 Sinout r. llbery . . ■ 7.'{;} Siuvth r. North . . . 240 SniVtho c. Sinytho . . . 410 Si\n;; r. (Jniv . . • .174 Siu'urv '•■ Alxly . . ^ . <>'■'!> SneoHt)y '•. Liiiiuiishin-aiul Yoik- whiro Kail. Co. . . • ."* ^ Snow I'. liOiithum . . . <»HH c. roiicock . . . <>'-i^ i\ AVhituhoiul . . . !)!).■< SnowhiiU ('. Goodriuko . .710 Snowdou ('. Davis . . . !)!) Hoiine r. Knight . . . 202 Socii'tu dos Miimif. do Glacos r. Tilghman's I'ateiit lilast Co. .W.) Solomon ('. JjawHon . . 20<), 20!) — — ('. Vintners' Co. . 277, .'iO(i SolonioiiH I'. Dawoa . . . iJOO Soltau r. Do Held . 10, UGH, (VM Some r. Barwish . . (iO, 77 Somors, In re . . . . 774 Somerset (Duke of) r. Yop;- wcll Somervillo v. Hawkins 184, Souch r. Enst London Eail. Co. Sinithain, Kx ]i(irlc . Southampton, &c., Ih-idge Co. v. Local Board, Southampton , Southcoto's Case Southcoto r. Stanley South East. Eail. Co. v. Eichard- son Southee v. Denny . Southernwood v. Eamsdon 1510 180, 205 742 407 728, 7;jo 704 315 7!)5 173 589 SowoU c. Clmmpicm . 84, 708, 712 Soworby v. Coleman . .341 V. Fryer . . ,419 V. Sniith . . .345 Spackman v. Miller . . ,488 Spark r. Ileslop . . , 80 Speaker of Victoria Assembly V. Glass .... 653 Speck V. Phillips ... 82 lioanl (if Co, HpoiKht t'. Oliviora , Spcnco I'. Uiiiun Marino Muranco Co. . . . . SiK'ucor V, Lond. and Ilirni. Eail. C... . ('. >rotroinilitiiii Hoard of Works . Spill i\ Mauli' . Spilsbury r. Micklothwaito Spirit of till' Ocean, Tlio SiKikoH r. Hanbury " ll.'alth . . Spoonor c. llM'Wstcr SiJringhoad .'^pinning Eiloy . . . Spry ('. I'hnporor V. I'igott . Slaco i\ Grillith Stiicoy I'. Stacoy StnlVord (Maniuisof) r StalVordshiro, iVc, Cana Birrn Stnight i\ Burn ■ • ■/'. Goo .... Stainbaok i\ l''ornloy Stainton r. Motrop. Board, &e. r. AVoolrych Standard Bank of liriti.sh South America c Stokes Stanford, Kr partv . ■ /•. Ilurlstono )'. Eobort.s . Stanley r. Stanley . (Ladv) V. Shrewsbury (Hai'lof) . TAnr. .-)H7 44S (V.W Covnoy Canal Navigation 205, 20(i . 084 . 53,5 3113 43« 217 98 33 185 002 012 330 358 770 740 709 408, 48(i Staniiard /'. I-oo StanstVld /•. Cubitt . Stanton r. Collier Staple c. lloydon Staples r. Young Staploton V. Ilaymen Stapley v. Lend., Br Coast Eail. Co. Starling v. Turner . Stead r. Anderson . ('. Williams . Stcbbing -■. Met. Bd Stedman r. Smith . Steel r. Lester r. I'riekett V. South-East. Rail. Co. . Steele r, Brannan , r. Midland Eail. Co. . V. North Metrop. Eail. Co., V. Williams . Stephens, Ex parte (L, R. 3 Ch. D. G59) , 577 (L. R. 7 Ch. D. 127) . 240 V. Elwall . . 116, 518 V. Myers , . .138 Stephenson, Ex parte . . 489 10 424 457 391 535 749 395 556 492 64 . 304 . 790 . 535 and S. . 626 . 28 565 . 5()0, 565 of Works 4;H. 762 . 424 . 103 48, 442, 637 104 198 753 771 98 INDEX OF ENGLISH CASES. Ixxvii i. StovonH, Kjc parte . c. KciiniiiK . • ^-^^t c. lUllor c. ('liiipmiiu ('. Mvuim f. Jciu'ockd . 7''5, 71, ,.. Mdtio. Dist.lfiiil.Co. r. Miil.lJail.Co. 12(),2-J(i, /'. Sinnii^oii . Stowurd /'. (hoiiuitt . c. Yimiif; . Kttiwurt'n CiiMo .... Stowurt, /•.','• i>(ntf , . lOa, c. (it. Wi««t. Uail. Co. . Stikoiniiu r. ])ii\vs<»u HtiloH ('. L'lirditY Steam Nuvigii- tioii Co. ('. NokoH .... StiinHon '•. J''ai'iilium Stinsoii r. lirowiiiiij^ Stouk c. lloUanil Htockdalo r, Hansard ■ — — r. Oiiwliyn Stockloy ('. lloniidf^o Sfoc'ki)ort Din. AVati rw(Ji ks Co. V. i'ottur . . 2;!», :{(!(), Stockport, &('., Kail. Co., AV Stokoo ('. SiiipMH Stonard ''. l)uiikiii . Stouo ('. Cartwrif;lit . r, Ilydo .... ('.Jackson . . ;} 72, 358 . 252 7 . 210, 210 . 620 Co. 16, 790 1>ia XXVill INDEX OF ENOFJMir CARES. i TaimtKii V. Tofifar . Tiiyl()() 7:t;t. 7i(» 217, isl . 7H1> •IJO . . . 770 . 24» r;7;}, 7h;j, 7n4 . oil) . iVo . ;{7!» 2i»4, 2f»J, 2!)() V, ('(M'noii . V. Colo I'. Hawkins . V. JohiiHon . V. liftiiyon . V. NcNfifld . ■ V. I'illow . 1'. I'lmiicr . V. Sim f to . V, StciuliiU . V. AVliitfluud — — - r. WillaiiH . Toalby r. (iuscoij^no Tear v. Fn.'cbody . Tcasdalo v, llraithwaito . Tol)butt V. Brint. & Ex. Ry. Co. Tolford i: Mot. Board . IVinpcHt, Ks parte , Tenant v. Ooldinj? . r. (loldwiu . lao, 307, 4'M TonnanfH Caso . . . 5G4 Torry v. Hutchinson Toulioro v. St. ^^ary Abbotts . Tlmckthwaito v. Cock . Thames Conservators r. Hall . Thomos Conservators v, Victoria Station Rail. Co . Tharpo r. Stallwood Tluirsis Sulphur Co. r. Loftus . Thced V. Dcbenham Theobald r. Crichnioro . Thetis, The .... Thistlowood's Case . Thorn I'. Bigland Thomas, Kj' jmrte 710 oM) 251 110 771 257 ;ifl5 580 7(59 491 Churton Daw Fredericks Harries . Harris . Morgan . V. Oakley . t'. Phillips . Powell . (Juartermaino Roberts . Russell . Sorrell . Thomas . Turner . Welch . mip V. Wilbams Thompson, In re V. Bell . 750 481 (352 . 380 . 775 . 110 . 210 . 735 . 497 . 183 . 770 . 310 . 401 . 82 . i;{4 391, 413 . 454 . 165 . 112 597 227 . 309 292, 356 . 547 . 667 . 33 217, 779 662, 667 . 747 225. PAOR Tliomp«on r, Bernard . .171 Dallas. . . 789 (iilmon . . 37(1 OiloH . . .495 Hill . . . ;i7i> Iiighain . . 0(17 North-Kast Rail. Co. . . 24, 310 Nvo . . . 210 Pettitt. . 5;K), 531 RosH . . . 58(1 Shackcll . . '2i)'2 Stanbii|io . . fi.'Jfl "Wright . . 094 Thomson v, Siiii))S()n . . 745 Thorley r. Kerry (Lord) . .167 Thorn c. "Worthing Rink Co. . 570 Tliornley, Tho . . . .788 Thornton r. I'iikoring . . 212 Thorogood r. Bryan . 27, 94 V. Robinson . . 503 Thorj) r. Cregccu . . . 457 /•. Facoy . . . '263 Thorpo I'. Adams . . .640 V. Brumfitt . 90, 364, 395 Throgmorton r. Allen . . 159 Thuringia, Tho . . .41 Tickle V. Brown . . 326, 336 Tidman r. Ainslio . . .217 Tilk V. I'arsons . , .177 Tillet r. Ward . . . .129 Tilson V. Warwick Qas Light Co 73 Timothy v. Simpson (6 C. & P. 600) 47, 142, 145 ,,. (1 c. M. & R. 757). . • . . 154 Tindall v. Bell ... 79, 635 Tinkler v. "Wandsworth Dis- trict Board . . . 729, 770 Tinsloy r. Lacoy . . 550,551 Tipping V. St. Helen's Smelting Co 367, 394 Tirzuh, Tho .... 628 Titterton v. Cooper . . .241 Tiverton Rail. Co. v. Loosemoro 767 Tobin V. Tho Qucon . . .519 Todd, I'Jx parte . . . . 6(5 V. Flight . . 377, 623 ■ V. Hawkins . . .191 Tomkins v. SafYory . . . 253 Tomlinson, 7/* re . . . 600 Tompson v. Dashwood . 187, 197 Toms V. Wilson . . .423 Tone V. Preston . . 306, 331 Tonson v. Walker . . .551 Toagood V. Spy ring . . 184, 194 Took I'. Tuck . . . .249 Tooko V. HoUingworth . 495, 496 Toolt) V, Young . . . 555 Toomey v. Loud, and Br. Rail. Co 318 Topham, Ex parte, . . , 267 ■ V. Dent ... 65 INDEX OP ENOLlSn TAHEfl. Ixxix Torronco c ftil)l)inH . Tottoiihiiia 1'. Uyriu) Tdwiio I'. Lewis Townoiid u, Tokor . TowJiloy r, (HbMtm . Town-^ 'Uil r. Wilt hen I'. Witnllmiii TowiiHOii I', Wilftou . To/cr r. ( 'hild . ■ c. ^^llHh[ord . Trac'v '•■ Voiil 28, •>! fit n -M. I'AOE •iili r><)( 2.') I ;m.'» 2 lit )ti» ().V2 171 "il" 214 487 182 .'{87 24 .J 4(>(> .'J7f> .171 407 20, «;«) G97 577 Truilo Miiik " Alpiiii',' Tiiih((riio V. Oardiior Trolawiioy >'. Colonian Tii))p V. I'liomaM TriHiimll v. Jiovcgrovo Trotiniiii I'. Dtinii . Trottor t\ ArcLi'uu . Tiouf^litnn v. Uitloy Trousdale v. Sliojdiord Trowor i\ Clmdwick. Ttiborvil v. Stump . Tucker c Newman . Tuff I'. Wanuun Tufton V. Harding . Tubman r. Tripp Tulk V. Metropolitan Boarf(r/c . . Oil V. Milne . 490, J27, 528, o;jo Walrond r. Oolduian . . 409 Walter v. llowo , . . 548 V. Selfc . 302, ;I00, 307, 392 . liOO, 379 . 207 Walters v. I'fiel r. Webb Walton, A'x /)ur . r. Sniallwood . West Cuniborland Co. yoii WestRiduigKail.Co. r field lid. of He;. 1th Western liunk of Scotland Addio .... 740, Western Counties Manure Co. r. Lawes Chemical Manure Co. (0 Sim. . 417 . 70 . (585 508, 50!), 511 . .'JSO . :ilH 180, 188, 211 . 254 . ;jo . 557 . 2!)() . 485, 48!) . 148 r. Ken- . 277 Wake- 104, (!2;J r4 Weston . Arnold , Ueeman . Dobnict Dunk . Laing Lane. Wettor /'. Wluiloy r Whallev r. Kail. 'Co. . Wharton r. IJrook . Whatman r. Pearson Whoatley c. Patrick Wheeldon r. Ihirrows Wheeler /•. Wiiting Wh(!lan «'. Ilewson . Whistler r. Porster . AVhito'.s Case . Whito r. Bailey ('. Hass . ('. Binstead . r. Crisp .... r. l-'east r. Praii.co I'. Garden /'. Ilindloy Local Board. (', Hunt r. Jamos(jn . V. Morris . . 70(i !) . 444 . 2;il . 181 . (J22 . ;}78 and Yorks. . ;50!), ;]8;j . 170 . lOi), 780 . 102 . ;{oi, ;io7 142, 150, 155 11 . 5;i7 . ()1() 52;{ ;i;);j 708 (518 ()(i5 3i:{ 45:j 020 2;}!) .'574 710 2()3, 307, «!)8, Whito I'. Phillip.s . ■ — — r. Spettiguo . 1 Whitecomb r. Jacob Whitehead, A'.i; pftrte Whitehouso r. Birra. Can. ('. Pollowos . PAGE . 018 ), 450, 45,'J . 4i)() ()(i Co. . 37 08, 120, Bail. Co. Whitelegg r. Richards Wliitoley r. Adams . 3(i4, 725, 752 Wolvorhami)tou Whitelock r Whiteman *■ Hutchinson Kivitr . Whitfield r. Bewick )•. Brand Whitham r. Kershaw Whitnioro r. Black . - — — ('. Claridgo r. I'impson 7G3 (553 184 285 3!)!) 415 405 14, 12(5 S. E. Rail. Co. 120, 21!) Lo Dospcnscr (Ld . ) (jfreene. Humjihries Whitmoro 421 . 512 . 25(5 400, 530 . 712 . 2(55 . 5!)4 Whitstablo (Free l''ishers of) 1"'(. oman Wliitstable (Frco Fishers of) Gann .... Whittaker c. Jackson AVhitworth r. Hall . Wiekham r. Hawkei Wicks r. Pontham . r. Hunt. Willin r. Kineard Wigens r. ('ook Wiggins, /•/.!■ parte , Wilby ('. I'llston Wild'r. Holt . ■ /'. Minsterloy . Wilde I'. Gibson Wild(!r r. Spoor . . Wildes /■. KussoU . AViles ('. Woodward . Wilford r. Berkeley. Wilk'sCaso . Wilkes ('. Broadbent ('. Hung. Mark. Co Wilkins /'. Bromhead - - r. Day Wilkinson, A'.r ])((rte ■ r. Fairrie ('. Gibson r. llaygarth c. Hull Hail r. King . ■ r. I'roud /•. Verity Willans r. Taylor . Williams, //( re ■ /'. Adams . ('. Archer . V. Banks . (', Gary 437 437 . 443 . 233 . 290, 300 . 229 92 . 139 . 791 . 4i)3 38, 170, 171 . 388 . 278 . 73(5 . 402 . i'48, (5(58 . 480 . 593 . 172 . 320 35 4i)4 017 255 314 2;;7 384 7(59 . 450 . 320, 427 (59, 43(, 543 . 219 . 457 . (5(55 90 . 224 5!) Co. f Ixxxii Williams v. Currio INDEX OF ENGLISH CASES. ('. Evorott )'. Eyton . V. Olonistor r. Ooliling r. Ot.Woist. Rail V. Oroucott V. Jamos . r. Jl 'oy (Earlot) . V. JouoH (Hard. 301). I,. (3II.&C.G02) rvoE 78, 386 . 473 C). 202 Mason . Millington Moi'laud Morris . Mostyu Pott . Eichards Smith . r. Wilcox v. Williams Williamson i\ Ercc Willingulo ['. Maitland Willis V. Bernard Willougliby, In re . Wills V. Maccarmick V. Wells Wilson's (Carus) Case Wilson, Kx parte • 1)1 re , r. Anderton V. Barker . . V. Canada Shipping Co. V. Halifax (Mayor of) . 3-)2 157 379 G25 42!) 2 Wylie V. Birch . 220, 232, Bank. 673 537 706 Wynstanley v, Leo Wyrloy Canal Co. r PAOE . 394 Bradley . 432 Yahborouoti V, Bank of Eng land Yard r. Ford Yates i'. Jack . . . 334, r. Eoed . ('. Wliyto Yearsley c. Ileano York & N. Mid. Eail Queen . Young V. Davis V, Fletcher ?'. Oroto v. Hichons V. Iliggou V. Hope V. Waud Yrisarri v, Clement Zetland (Earl of) Incorp. of Perth . Zinck r. Walker Co. V. The 4, 295, 726, . 249, 8, '. 48G, r. Glover 120 540 395 125 84 703 630 731 254 24 543 783 488 255 169 440 495 ./■2 ■■■ ^ H INDEX OF AMERICAN CASES. I Co. V. Kidd St. &c. 11. K, Abbott V. Wood . Ackorinan v. Jones Adams ?'. Cost . ('. Lisbon Aiken V. Benedict Ala. & Tenn. E. R. Albert c. Blcockor Co. . . . Albion r. Hetiick Aldrich v. Howard Allen V. Crofoot . V. Dewey . v. Fisk . r. Hunter . V. State Alvcs V. Henderson . Amos V. Eathburn Am. Ex. Co. ('. Smith. Am. Grocer, &c. Co. Pub. Co. Amofkcag ifffj;. ( "o. r. Anderson r. Burnett Apollinaris Brunnen r Arnold v. Stevens Arthur v. Case . Artson v. Eidj^oway Ashley v. Wolcott Atty.-Oon. v. E. E V. Stewart Atwater v, Bodtinh Auburn v. Douglass . &c. Plank Eoad Douglass Avery v. Fox Ayer v. Eushton B. Babcock v. N. J. Stock Yards PAGE 0, 397 . 187 . 112 , 225 , 371 . 123 Co. . 404 . 28 . 372, 412 . 187 . 58fi . 317,410 . 586 . 372 . 329 . 225 . 7()!) V. Orover . ()05 Trainor «()4, 013 - 772 605 . 361 . 411 . 760 . 281 110, 411 . 412 . 329 . 413 20 462 ()05 Somborn . Co. V. Backus r. Richardson liiidgcley r. Hedges Bailey r. Dean. Bain r. Morno . Ball ,: Nye Ballon r. inhabifanls Banner ( . Angler Barnes r. Crato . »'. Hathorn ('. Trundey 408, 186, 186, 588, 405, 372, 412 176 187 286 590 371 412 361 187 408 170 Barnott c. Johrison Barrett '•. Hall . Barrow r. Mason Bartlett r. Crittenden Bassett r. Coinpany Batcheldcr r. Sanborn Batten r. Clayton Bauer /•. Clay Beach /•. People . Bean r. Smallwood Bears r. Ambler. Beckett /•. Storritt Beckloy r. Learn Bedforcl r. Hunt Belknap /•. Trimble Bell r. Daniels . ('. Morrison Bellows ('. Sackett Bemes r, Upham Bennett r, Judson ('. Williamson Benson v. Suarez Benton r. Pratt . Bergold /•. Puchter Berson r. Southard ]5irch ('. Benston Bishop r. Banks. . ,.. Ely . Bissell V. Michigan, &c. Co. . Bizzell ('. Booker Blackwell c. Debnoll Blake r. Sperry . PAGE 3 585, 588, 689, 596 . 225 Blanchard Baker Eldridgo Spraguo Gun Stock Warner Blanchcrd's Eactoi'j " Bliss V. Oreoley Bloss c. Foley Blunt r. Little , ('. Patten , Bodwell /•. Swan Booth .'. Farmers', &c r. Garolley Boret ('. Allen . Boston ('. Salom . Boucicault r. Hart Bov.'ers r. Fit/nondolp Bradley r. Ames V. Heath Tur . 571 -ill, 412 . 410 . 588 . 225 . 372 . 589 . 386 . 173 . 413 584, 595 . 411 589, 595 , 404 371, E. 37\ r! 122, 380 412 770 186 389 773 175 225 176 372 97 123 20 604 589 278 596 590 nmg Brady r. Weeks 372, 378, 409 690 283 213 225 575 183 Bank 122, 123 595 402 413 570 531 402 191 411 Ixxxvi INDEX OF AMERICAN CASES. IJraon v. Hathaway Bniiich I'. Don no Unindoii r. IIiintHvillo Iknk l5rij,'Krt c. IJynd . l$riKham c Aldricli ]$iill /•. V\ai^\vr . IJrittuin v. All(!U JJiittoii r. Aiitliony Uroadwiiy Vnvvv Co Eiooklyii K. K. '■. ' IJ. 1{. Co. Brooks '•. liickiicU r. Ciii'ti.s . r, Fisko . r, Jenkins Brown r. ]5owcn r. Ciirpontor r. Hiiskins V, Iloburgor r, Illin.s . r, Nhnas. ('. KanduU *'. Smith , i: South Konnoboo Agl PAOE 1 . 191 1 , •102 $ank ■Kii) 18(i L'2J 2i;j 213 jiiijik- ■ V* 4ia , t^l . .1(1 1 41" 1 Soc. Bryant c. Jackson r. Eich . )•. Ware . Buck ('. lIornKinco Buckland r. llici Buford r. ( 'aldwoU . Burden v. Corning Burdott i'. Swanson , Burlingamo i\ Burlingamo Burnaji r. Albert Burr c. Cowporthwaito ('. Duryeo . . 588, Burtch r. NiikurHon . Burton r. Duvis Bush ('. Trassor . , Butts V. Thrin . « . - '', o'M> 329 . 590 584, 588 317, 41(! 531 414 531 372 175 220 187 122 127 111 470 588 (iOH 770 590, 59(i 372 180, 225 225 589 589, 590 170 20 I HI) ilfli 0. Cahill !'. I'lastinan Cahooii I'. Jiing , , Cain ('. IhiruHfjli) Caljious I'. Ui(i|iiii(|Hiia Calkins r. Sumner CalialiiiM r. Warner Camiibuli r. JliUman • V. I1lll||l8 ■ I', Rouiilan )■. Throkold . I'arhart v. Aubmn Gas Light Carlisle, &c. v. Cooper CsHi- .', (.'tirr — V. Rico . 588, 589, CWroU r. Erthoillur . '■• White Cart*v»({ht I'. Umy Carver i\ Bi-»jwivo Mfg. Co. Case i\ BroikM . «. Haight . 379, 500, Co. 410, 591, 588, 380 51)2 87 10 80 28 772 90 412 225 ■U2 411 439 5110 010 175 371 590 589 411 PAGE Caswoll I'. Davios . . . 607 Catlin r. Valoutino 372, 378, 408, 409, 411 Cecil V. Clarke . . . .223 Chaddock r. Briggs . . .175 ChamborH r. Bedell . . .393 Chapman r. Oshkosh E. E. Co. . 414 Charlo'. i!i'- • Br. Co. r. AVnrron ">•• ,. .... 413 .1. , . y " C. E. E. Co. . 403 ■iy. .stouo . . . 283 r-\, tf M ■, ''i, .n . 2, 29, 283, 405 CfMr'v ,'. ;-'^. i. .... 3 n)--;,r . P i' Co. r. Foster . 470 ' i«. .pike Co. ('. Stovons 402 '';..:'u-o. ■ ;. li. 11. Co. t', Orotz- n.: ■ ■ 28 ■1 fi: 1 (', Cook . . . 175 — - r. Ilibburd . . .404 — r. I'almer . . 374, 411 Church /■. Meeker . . .329 City of Baltimore r, Nonnau . 530 Chirk r. Fry .... 38() r. Malony . . . 409 Clark Pat. Steam & Firo Eog. Co. i: Copeland . . 591, 592 Clarke i . Ecodor ... 71 Cleveland r. Dctwiclor . .109 r. Gas Light Co. 372, 408, 409, 412 ■ Sic. E. E. Co. r. Elliott 28 Cloon r. Gerry .... Closson r. Staples Codman r. E%'ans Coo i\ Winnepiseogeo Lake Co. . Collhic. Coflin .... Cokcr r. Hi) go .... Colo r. Uiirtls . , . . v.VUhuv .... V. fJlaiii , . . . Collies ('. I'ierco .... Collins V. Iloyt • • i • r. Eoypolds Od.1-4 Ml»i»f- Co, I'. Amos Cof)iiilatIou (506 Conimissioiiors >\ People , . 402 I 'onimonwcaUli c. Urowu . . 372 ■ r. Clap . . 108 r. Odell . . 184 r. Ennitord Chcm. 225 225 371 412 187 ill 225 20 173 3i;i 225 609 Works c. SnoUing r. Upton . CongrovG V. Smith Conolly V. Conger Couk I', ['ofik I', I'ljgden Cooper ('. Matthoys I'. Utterback Corning r. Burden II. Gould I'. Troy Nail, &c. Co. 410, 411, 412 Cory c. Silcox . . . 41, 402 Cott I'. Lowiston . . .412 . 372 . 184 . 378 . 386 . 414 . 176 317,416 . 675 . 225 589, 590 . 360 INDEX OF AMERICAN CASES. Ixxxvli Cox (', Oripfps Cmig ('. Ward . Cniiaor /•. liigffs Crochor t\ Unigg Crotou r. llydor . Cuddy /•. Horn . Cuif ('. Newark, &c, Curtis V, Hubbard r. Mussoy PAGE 08-1, 580, 59'2, oDo . 770 . 208 . 112 . 4i;i 28 11. R. Co. . a8(J . 72u, 720 . 18U D. Dale r. Harris .... Dana r. Valoutiiio Daniel c. Mashio.s Davenport l\ Lynch . Davis ('. I'alinor r. Webb .... Dayton *'. Pease Do Brahl r. I'arkor . Do Costa ('. Mas.MiiclniHetts&c.Co. Doitz r. Langfoot Dolahou.sio r. Judici! . Delaware Canal Co. r. Coninion- wealth Del. & Uud-wn Canal Co. i re nee Dellii /•. Yuuinans Deniarest '■. Ilariiig Douipsey r. Kipp Denney r. Oilman Dennis r. Eckhardt Desmond's Ajjpeal Detinold r. l{oeves Dctr.iit Daily Post r Dexter /■. Spear . Dickenson i\ Barber — ; — ('. Davies Dickinson r. Canal Co Dickson r. Green Dideiiay r. Powell Dodge r. Card . ■ V, McClintock Doellner r. Tynan Doevns r. Hawloy Doll /'. Slionoberg Dorsey r. Manlove Downing /•. AVilson Doyle r. Lord . Drakely r. Sharp Drcydoppel '■. Young Dripgs r. Barton Druse r. Wheeler Dubois V. Endlong Dubuque r. Maloneo Duggins r. Watson Duincen /•. Rich Dumont r. .Smith Duncan r. Hayes Dunham i\ Powers Dunn V. Winters Duproy c. Johnson Durand v. HoUins Clark Low- . .'517, ". ;i71, . oH'J, McArthur . 180 317, 3, 317, 370, 183 •101 522 225 5!(0 522 403 Ul 403 225 328 12 003 414 405 175 410 770 412 .j!K) 20 108 127 70!) 405 410 1H7 58 S 410 40!l 213 225 402 10!) 313 300 (ill) 225 410 372 405 111 317 3!>7 412 187 187 i)0 12!) Durant r, Riddol DurroU i; Haley Dutro r, Wilson Dyer r. Depuo . i: Sandl'ord E. Eamcs r. Cook . V. Oodi'roy ('. Morgan Earle r. Sawyer /'. Van Buren . Echids r. Staunton Eden r. Lexington R. R. Co. Edgorloy r. Swain Edson /'. Munscll Edwards c. lianksniith ('. Union Bank . P]ggers ''. Ilink . Electro-Silicon Co. ■. Hazard '•, Levy /•. Trask Elliott r. Fitchburg R. R. Co. PAGE 3 700 403 300 300 588, 5!)3 . 588 7''3 588, 690 . 522 . 128 . 019 . 213 328, 329 , 414 . 123 . 008 . 007 . 00!) . 009 . 279 . 97 . 379 . 5!)2 Ellis /•. Howard .... EDiison ''. Commissioners . Ellithoi-pe /'. Robertson Enfield Br. Co. r. Hartford Br. Co 413 England /■. N. Y. I'ublishing Co. 009 Enoch Morgan's Sons Co. r. .Scliwachofor 005 Troxell . 007 . 317,410 . 317 . 5**5, 588, 589, 590, 591 . 591 . 336 Estes ('. China • r. Winno Evans r. Eatcni Ewiu! ('. Hettick ' r. Blount F. Fairbanks i\ Jacobus Farriind /•. Marsliall . Farrar r. Cooper Farrell /'. Richniouds Farrington '•. Payne . Faucett r. Charles h'ay r. I'arkcr l''ears r. Sykes . J''eliin r. Reichardt Filley r. Child ... Finnegau r. Lee First Baptist Church, &c. r. R. R Co. ..... Fischer /•. Laughim . Fisher r. Clark . r. Thirkell Fleischmann r. Schuckmann Fleming r. Slocum Foley r. Wyeth . . .404 Folsom r. Marsh Forboa «'. Johnson 005 413 300 278 522 187 83 71 20 610 414 412 152 405 380 000 773 ,105 575 186 ii Ixxxviii INDEX OF AMEKICAN CASES. Forljiwh '•. Cook FOHH i\ IlcilxTt . FoHtor r. Ivi'iiiiudy F<)wl(T i: IJowoii Fruucifl r. Hchocllkoppf Frankfort liaiik r. Jdliii Fnizicr r. lirowii -!', FroiMlciiHtcin r. Ili'iiio FrtM^limd r. ^[iisi'iitiiio Froonmn r. llcadlcy . /'. IiiiiHlcy . Frcoso I'. IJiichof French r. I{o<,'or8 r. Smith Friiik r. ]{. li. Co. . ]''n.slii(^ '■. ]'\)wU'r Fry /'. Jiurnott , l''llltz r. Aycoff . Fiirlonf,' '■. I'oUoyH FusiHor r. Spalding . G. PAOE 58(1, 588, 5i»l , 500, oilG . 770 . . li)l . ■n,42. 101, 401, 109 son 122, 12;{ . 28;{ -101, -105 . -101 . . 403 , ■•517,410 , . lill , . 000 , . 589 . 225 . 401 , . 101) , 170, 18;J . 404 , . 402 , . 412 fJan I'. Seldon . . . .175 (JardniT r. NowlnirKh . 111,412 • /■. Kowland . . . ;j!)2 Garr r. SchU'ii . . . 184, 180 (Jarrct.sou r, Ducnckel . .110 (Jatcs <•. McDanifl . . . 414 Crault r. llnniu .... 20 (Jerrard r. Willis . . . 225 Oilbort /•. rooi)lo . . .180 )■. Showcnnan . . 409 Oile i: Stuvens .... 409 fiilcH c. Siiiionils . . 317,410 (iillutt c. Johi\s()n . . 279,281 /•. Western R. E. Co. . 404 (iU'ndon Iron Co. /■. UliliT. . 008 (ioddard /•. (irandTrnnkll.lLCo. Ill (rodillatc. Hazard . . (i(l5, 008 (ioodalo '•. TuWc . . 281,405 (ioodonow r. Tappan . . . 187 ( loodspeod *'. East lladdam Bank 123 (roodwin c. Canal Co. . . 410 Goodyear v. Central R. E. Co. . 589 '•. Day . . . 592 '■, Mathows. . . 591 Gorhaui r. Mixter . . 588, 590 Gorman c Sutton . . .211 (io.sling c. Morgan . . .213 GoHsort r. Gilbort . . .183 Gosslin r. Cannon . . 18G, 187 (iould ('. Jat'obsou . , .414 Grant r. Chase .... 300 Gray r. Bartlett. . . . 4(32 '■. James . . . 590, 596 '■. Pulloy Works . . ()07 . I!. H. Co. . . .410 Greon r. Hryant. . . . 773 Greeuo r. Uishi.p . . . 575 Griiion r. La lllanc . . , 265 (iriggs V. Fleckenstein . . 402 Gu»»t •. EcyuoUiB ... 3 Ouillammo /'. Ronio (iiiillo r. Swan . H. rAQE . 220 20, 131 Haines r, Anhfiold 404 1: Taylor. 410 Halo r. Union, &c. In.4. Co. 123 Hall r. Wiles . 588 HalHoy ''. Brook.s 183 Hamilton r. Hunt 97 /•. Third Avo. R. R. Co. 110, 122 ,: Windolf . 317 ,416 Hammond r. Los 372 Harbison r. Shook 211 Hardin r, Couistock . 186 Harding 1: Randall . 770 Harney r. Sides, &c. Co. 403 Harrington r. Ijibby . 605 Harris '■. Oodiu . 439 Harrison r. Savage . 773 Harsh '•. Butler . 401 Hart r. Tallmadgo 773 Hartsoek r. Roddick . 186 Hartwell r. Armstrong 379 Haruood r. Benton . 405 /'. Tompkins 3 Hastings r. Jjiisk 18(i 187 Hatch r. Dwight 360 401 llaverstick /■. Sipe 3 IIa\\-loy r. Butter 225 Hay r. Cohooa Co. 122 ('. Storrott . 3 Hayes r. Bowman 4G2 Hays r. Blizard . 225 ■ '•. Crcary . 153 Hazard r. Caswell 6()(> Hecg '■. Licht 386 lleiskell r. Gross 410 411 Ibdms r. McFaddcn . 410 llentz '■. Long Island R. R . Co. '. 410 llerrick r. Lapham . 176 llettield r. N. J. Cent. R. ] Li. Co". 317 Howitt r. Mason 175 Hczeltino r. Stockwell 470 lliggins r. Wateroliot T. C 0. 111 Hill /■. Miles . 188 '•. Robinson 470 /•. Sollick . 187 r. Taylor . 439 — '•. Ward . 2(55 , 266 Hillhoixso ('. Dunning 168 llinos r. McKonney . 522 Hitt /•. Miles . 186 lloadloy r. Watson . 83 Hoar 1: Wood . 186 Hodgson /'. Medward. 402 lloflman r. Savago . 360 , 361 Hogan V. Hendry 184 Hogg r. Emerson 596 *'. Wilson . 173 Holmes ('. Clark. 772 f. Wakefield. 110 INDEX OF AMERICAN CASES. Ixxxix IIolHman >: HoilitigSpringlUench- iug Co. . Ilomor i: Eiiglolianlt. (', Lovoltiiid llookor ('. Smith Jlooly c, IJrooks . Ilooiit!!' *'. Siwk . llopkiiiH r. Western )pkinH r. western I'lie. Co. . . . lloruor r. Stillwoll llostettor V. Aduias . I'. Fries /'. Vowinklo llotehkins r. Ureenwood lldiighton r. Cooper . llovoy r. llonry . — — ■ c. Stovena Howard c. Irwiii r. TiCO . /■. Thompson . Howe '•. Ahbott . r. Underwood . ■ r. Young . 11. K. j.Sj, Oi»l IFowell ('. AfcCoy Iluhbard r. i5ri;i;;,'rt 1 1 iickenstoiii's Ajjpoal Hudson 11. ]!. Co. ''. Loob Jlu^'j^iiis /■. llubby Hunii)liroy'.s, Sec. Mid. Co. Huin])liries r. I'arkor . Hunston ''. riiilTeo Hunt r. Iliiskell Hurd /'. Curtis . Hurric;ine Liintcin Co. r Hutehins r. Smith Hyatt i: Adams , PAGE 412 180 1H7 72J 182 772 401 U2i) ml 007 o8!) 4;ji) 588 o'M) 770 372 187, li)l . 589 . 5i)2 . 20 . 378 770, 773 108, 409, 411 . 412 592, 5i)0 Wonz 00(5 182 317 530 300 005 412 019 Miller 372 111. Contl. R. R. Co. /'. OraboU . 372 India-rubber Co. i: Ilubber Comb and Jewellery Co. . . . 009 Ins. Oil Tank Co. r. Scott . 005, 000 Irvine r. Irvino . . . .410 Irwin r. AVood .... 380 Ives r. Cartes .... 773 J. Jackson r. Second Ave. E. R. Co. 1 1 1 i\ Wilcox . . . 709 Jacobs r. Tyler . . . .173 Jarnigan r. Fleming . , . 183 JotVersonville R. R. Co. r, Rogers 110 Jennings r. I'aino . . . 180 Jeunison /■. Walker . . 300, 301 Jowett ''. Jewett . . . 300 '■. I'artridgo . . . 522 Joannes r. Jiennett . . 195, 190 Jolm ?'. O'Connell . . . 530 Johnson r. AUou . . .414 ('. Canal, &c. R. R. Co. . 28 '•. Root . . 590, 592, 595 Jones V. Jenkins . . 3, 313 Jonos ('. Rubilly . Judson r, Mooro. Julian ('. Hoosior Drill Co. PAOB fi3B A05 604 K. Kane c Johnston Kan.sa8 Pacific R. R. Co. ('. Painter Keaggy r, 'Whito Kean r. McTiaughlin Keats *'. Hugo ... 3, Koipor r. Klein ... 3, Kendall r. Htono . . 205, ■ r, Winson Kennaj'do r. I'acific R. R. Co Konney r. Nash . Kidder /•. Parkhurst King ('. Kline r. Root Kinnis r. Stilos . Kinsil r. Kinsil . Kittle /'. Merriam Kitton r. IJevins Cooko Klein '•. Gehrung Kline r. Central Pa. R. R. Co. Kneass r. .Schuylkill Bank Knoll r. liij^ht . Krom r. Schooniakor . L. Laird /•. Wildes . Lampnum r. Milks . . 3, Landon r. Ho Oroat JiUnoy ('. Jasper . Larrabeo r. Lewis lia Sala r. Ilolbrook . . 2, 20, La Societe Anonymo r, Baxter . Lathrop r. Hydo Ijatta r, Shawk . . . 588, Laui'orty r. Wheoler Lawlor r. Potter Lawrence r. Dana Lea ('. Deakin . V. "Wliito . Leo i: Blandy . . . 588, r. Sandy Ilill Lo Roy r. Tatham . . 588, Lentz r. Strob . Levi ('. Bronnan. Lewis ('. Chapman r. San Antonio Lichtenstein r. Mollis Fiiegort r. Abbott liiggett & Myer Tobacco Co. ( Ilynes liiko r, McKinstry . . 205, Linden r. Graham Lindsey r. Danville Lively v, Balland Livingston r. Jones ('. Ogden V. Van Ingea 403 28 530 187 313 313 200 584 28 170 180 531 184 173 405 590 225 3 28 590 379 127 008 313 595 413 007 413 005 188 589 006 410 575 608 187 589 122 589 531 225 191 410 609 008 610 206 266 28 128 592 413 414 zo INDEX OF AMERICAN CASES. P ^1 IjodRo r. Htodildi' liOOIIliN' ApIM'lll . IjOdTiiiH r. NVilbcr Lorillunl PAOK •J 39 (108 \>d, i)'M —^ r. Sjxiuldiup . . • 3S(j Luc'UB r. I'Miiiii .... N;J r. Mcltliiir . . HIJ liudlow '•. YdiikiTs . . . -io;} LiithiT r. Wiiiiiissiiiount Co. . 401 Lyon r. McLuii|,'liiiii . . 412, IIU M. ^[cAdiiiiis r. Cotes . . . 1(>Q JJi'Alctr '■. McMurriiy . . 77.'J McAiiciiy r. Jcwott . . . o.'U MiCiilliim c. Ocniiuntown Co. . '>i'2\) McCollou;,'h '•. Wall . . . •I{)2 McConnick r, I'oim Ceutrul E. 11. Co. . r. St'Viuour ■ r. Tiilcott . McDiiniul r. 15ucn McDonald r. Troftoii . McGinnc'BB r. Adriatic Mills McOrcgor r. Waito . McOxiiro r. Grant McKcon r, Seo . McKnislit r. Eatclift'o .O.'iii . iiitO u88, 08!) . I2(i() ) 1 1 . -lia ;J28, ;i2!> •io;i, -loj 40'J, 412 . 401 Mclianalmn '•. Universal Ins. Co. 7(iO McLaughlin r, Waito . . 4()i> McT/cun ('. Fleming . , . G03 McMahon v. Armstrong . . 22j McMillan r. Birch . 175, 180, 187 McNair r. Cloavo . . . G05 McNamara r. Shannon . .174 McNay r. Stratton . . . 149 McEoberts v. 'Washburno . .413 McTavish r. Carroll . . .300 Maconibcr r. Godfrey . , 281 Macon, &c. E. E. Co. r. Johnson 28 Madison Ave. Baptist Church, In re 205 Moennor v. Carroll . . . 452 Mageo r. Stark . . . .173 Furnace Co. r. Lo Barron 610 Magic Euffle Co. r. Douglass 589, 591, o'JG Magnolia r. Marshall . . 4C2 Mahon v. Brown . . 29, 405 Malcolm v. Spoon . . 370, 397 Malono i'. Stewart . . . 1 09 Manhattan Gad Light Co. c. Barker. . .414 Med. Co. 1'. Wood 603, 604 Manly v. Wilmington, &c. E. E. , Co 28 Many v. Jagger . . 590, 592, 595 Many v. Si/or Marblii & Shitu Co, PAOB 580, 588, 591, 592 r. Aduinr< tt at 412 Mursh r. Marshall Ellsworth r. Cohen f. rinkham f. Welwood SiiujiHon Whipple 372. Martin c Mahury * Mattliew ''. Coo MatthowH r. llarsell ('. Skates Mavoy ''. Medina 187 388 008 2 371 225 530 409 586 409 531 313 410 329 410, 411, 412 28 311 MaxwoU i: I'nlmerston Muynard v. Kshler Mayo r. Tajjjian Meluun r. I'atrick Meigs ('. Lester 37i Miners ('. Chicago, v*k:c. E. E. Co Middlctown r. Eoundbout E. E. Co 414 Miller r. Oorlick . . . 3(iO V. McDougall . . .414 / . McElroy . . . 575 /•. Miller . . . .173 r. Farrish . . .109 r. State . . . .317 r. Trushart . . . 380 Milligan /•. Elias . . .409 Mills r. Hall . . . 378, 380 r. VunDorn . . .21;} Minten r. I'acitic E. E. Co. . 110 Mitchell r. Leavett . . .410 - /•. Mayor of Eomc 3, 328, 329 Mo W^ait Mohr /'. Gault . Moore r. Butler . r. Stevenson . Morain r, Devlin Morford r. 'Woodworth Morns r. Barrett • &c. E. E. Co. r. Morrison r, Marquardt Morros r. Brewer Morse v. Copcland r. Worrell Morton r. N. Y. Eye Infirmary . Mosier r. Caldwell Mullen ('. Strieker Mulligan r. Bailey Feoplo Elstou 439 . 379 . 191 . 182 . 127 . 402 . 590 Frudden 410 3, 313 . 372 . 3()0 Munson ; Murray v t', 003 584 403 3, 313 . 770 . 380 . 414 Myers Long . ■!'. McLean ('. Gemmel V. Malcolm N. Nagle V. Morrison Napior v. Bulwinkle Neiller v. Kelly . Nelson v. Euhl . Nettleton v, Sykes New V. Wright . 225, 220 . 225 3, 313 . 386 . 402 3, 328, 329 . 536 . 187 . 393 . 414 INDEX OF AMERICAN CASES. Xd 17 NowburRh r. Millor . Nowhouso ('. Milltir . Now OilouiiH U. U. Co. c. Stuthimi N. Y. iV: 11. 11. Co. c. 4'Jml St. 11 U. Co N. Y. &o. II. R. Ci). r. Schuylor Nichols I', lio^ton r. Oay . Nit/.oU r. I'uHchiill . Nowlaii /'. (,'iiiti . Ni'wloii I'. Cull . Noj'cs ('. Morrill . r, llvitliiiiJaiiil Hurliii^tou R. R. Co. Nunaum r, Nunsum . Nyo r. Otis C). Oiiko.s /'. Tiin8ini(*rro . O'Donoghiio r. McUovcTii . Oliliiiim ('. lioiitloy Oliiistoad r. rartri(l{;o O'lMiua r. R. It. Co. . Orogon Iro!i Work.s r. Twilli O'Roilloy ('. MorHo Orniiiby r. Douglass . Ostram r, Calkiii.s Ottawa (las Co. '•. Thoinpsoi Owou r. Fiold . Owotis r. llydo . Owlsloy ('. Moutgoiiiory R. R Oystoad t; Hhodd P. Pago i\ Ferry Palmer r. Mulligan Paiitou ('. llollaud Park ('. Little Parker t'. Ilavorth ('. Ilulino )'. Stiles ('. Wiimopisogee Co. Parkhurst c. Kinsman Parks ('. City of Bcstou PAaK 28 4ia 122 :{21> \lo ;«)() 773 •170 12;! 522 1, 22J 603 187 773 22.J 401 ngor 3 i»8(! JHO 101 211 llo 1 372 301 430 . Co. 122 580 , 500, 584, Partridge r. Gilbert Pastorius r. Fisher Paul ('. Slasou . Paull ('. Ilahevty Peck r. Elder . ('. Ellis I'cilloy r. Noland Penuington c. Meek a Peunock c. Dialogue . Pennsylvania c. Wheoliuj Co. Pooi)lo V. Reed . V. Sands . V. Sully . V. Townsend . Pel kins v. Mitchell Perry v. Phipps . Peterson v. Parrott . ■ 11, {72, 401, Bridso t.io 505 278 413 580 588 502 505 411 502 402 413 402 402 2(50 412 0(5 700 183 588 402 372 380 770 380 187 531 414 Potorsoii I'. Sentman . Pettignon r. ( 'liillos . Phclan ('. Stil.'H . Plielps ' . Urown ■ . Nowlon I'hiladolphiu r. Qilmartin iS:c. R. R. Derby. &c. R. R. ' Oingloy I'hillipa r. I ago . — — /', lio;irdman . i'liinzoy r. Augusta . Piatt r, Covington Ur. Co. I'iekard ''. Collins I'iorco ('. Dart Pierre c, Fernald Piorson r. Canal Co. . Piko r, Doylo r. Van Wormor . Piscatariua Bridge Co. i Hampshire, &(!. Pitcher /•. United States I'itts ('. lidmonds ('. Hall ('. Weniplo . r. Whitman Pixloy ('. Clark . Piatt ('. Johnson I'lumer '•. Harper Pollard ('. Jjyon Pollitt r, Jjong . I'onderotte Co. r. Van Kei Poppenhusen i: N. Y. i'ercha Comb Co. I'ortland r. Richardson Potior r. Burden Potter r. Holland ('. Mcl'horson . I'owell ('. Sims . Powers ('. (Council Bluffs • ('. Dubois Pratt V. Pago Prentiss v. Ross . I'restou V, Cooper Prince v. Flynn . Prouty !'. Ruggles Puckell V. Smith Purves V. Waltz Putnam i". Payno Quin c. More Quiiicy V. Jones , Q. B. PAOB ^ J •213 , 772 • • 112 , fi02 J !, 29 ^ ^ 412 Co. V. . 122, 123 Jo. '*. . 122, 123 589 ^ ^ 413 ^ , 3^0 , 413 . 372 405 ^ , 401 ^ 3 , 317 , , 401 . 175 213 . New , , 413 , 590 500 502 , 580 . 588 589 . 588 2 405 278 , , 402 , , 109 . 411 412 iron . 372 Outta , , 502 , , 380 , , 412 , , 591 , , 010 3 313 70 , , 208 , , 220 , , 709 , , 225 , , 97 , , 588 , , 402 , , 470 • 331 405 , , 3 Radenburg v. Coats . . . 372 Railroad Co. i>. Covington . . 361 Ramsden v. Boston, &c. R. R. Co. 110 Randall r. Sanderson . . 3, 313 Rauson v. New York . . 589, 592 Rathburn v. Emigh . . .176 ■t.*.--^ . ..:'' ". IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^^ ^ mm m m I.I IIS ■a u ^ IE 1^ m ^ t" — ^>%. ^ Si # •. Lounsbuiy • 592 Sugar Refinery r, Mat- thiessen .... 589, 596 Updogovo V, Zimmerman . .211 Usher c. Severance . . . 208 U.S. I'. Parrott . . . .439 V. Van Arsdalo t\ Howard . . 709 Van Borgon r. Van Bergen . 414 [ Vance v. Campbell . . . 588 1 V. Erie R. R. Co. . .122 I Vanderburgh v. Trumax . . 44 ' Vandorslice v. Newton . . 402 I Vanderzee v. McGregor . .180 Vaughn c. Congdon . . . 152 \ Vaussee u. Lee . . . .187 Veddcr v, Veddcr . . .412 j Veghte r. Roritan W. P. Co. . 317 ! Vcrring r. Baker . . . 470 [ Viele )'. Gray . . . .108 Vincent c. Stinjhour ... 20 Vinnol r. Vinnel . . . 404 W. Wadsworth v, Tillotson . 278, Wallace i: Fletcher Walsh ;;. Miss. &c. R. R. Co. Ward ('. Conatser V. Noal Warner r. Paine Warren r, Blake Washburn o. Gould . . 580, Waterbury v, Westorvclt . Waterman v, Thomson Waters o. Jonos . Watkins v. Peck. . . 328, Watson /'. Bladen r. McCarthy /'. Moore Wayne v. Holmes Weatherford v. Fishback . Weaver v. Devendorf . Webb r. Portland Mfg. Co, 41, 409, 411, ('. Powers Welch V. Durand Wellington v. Wentworth . Wossom V. Washburn Iron Co. . 279 328 28 127 3 187 300 590 97 592 173 329 584 174 183 595 773 187 278, 412 575 20 536 401 V XCIV INDEX OF AMERICAN CASES. Whcatley v. Bough . Whcaton v. Petors Whoclor I'. Nosbit White I'. Allon . ■ V. Bradley V. Crawford V, Forbes. I'. Nicholls V. Schlect Whitney r. Bartholomew V, Carter V. Einmott . Whittoinoro v. Cutter, Wier's Appeal . Wior V. Allen Wiggin v. Coffin Wiggins V. McCloary . Wilds V. Hudson River E. Wilford V, Grant Williams v. Adams V. Brooks ?■. Mich. Central E. E. Co 28 V. Nelson . . . 3G0 V. Holdridgo . .175 Wilmarth v. Mountford . . 225 Wilson V. City of New Bedford . 412 V. Fitch . . . .208 V. Nations . , .211 V. New Bedford . 379, 380 V. Eobbins . . . 1G9 — — V. E. E. Co. . . . 589 Winans v. Denmead . , . 590 V. E. E. Co. . . . 584 PAGE . 283 . 570 . 225 . 592 3, 313 . 3G0 . 412 . 1G8 . G09 . 371 . 59G 595, 59G 584, 596 . 38G . 17G . 22G 361 28 96 G()4 GIO Co. Mfg Winslow V. Hudson . Winsox V. Clyde Wintermute v. Ecdington Wolfe !•, Burko . Woodbury i'. Long V. Thompson Woodcock V. Parker . Woodruff ('. Fischer . Woolf V. Chalker Woostor I', Great Falls Wright V. Freeman . V. Mooro Wyatt ?'. Buell . Wyeth V. Stone . Yalo V. Saunders Yates V. Eeed Yoaklo V. Naco . York V, Pease . Young V. Covell. V. Gregorie V. Jones . Youngs V. Shepard Z. Zuckoiman v. Sanenschion. PAGE . 414 . 608 588, 590, 595, 596 . 609 . 522 . 176 585, 592 . 379 . 531 Co. 403 . 360 329,412 . 188 . 684 536 127 3G0 187 772 225 604 414 183 i ?' Mi INDEX OF STATUTES CITED. NOTE.— The paging refers to the black type [288], which is that of the English Edition. PAOE PAGE Magna Charta, c. 29 . 046 2 W. & M. BOSS. 1, c. 5 . 402 52 Hon. 3, c. 23 . 413 s. 4 85 6Edw. 1, c. 1 . . 786 8. 5 85 CO. . 413 7 & 8 Will. 3, c. 25, 8. 7 257 ISEdw. 1, St. 1, c. 14 . . 421 8 & 9 Will. 3, c. 27, s. 8 705 c. 39 . 684 4 & 5 Anne, c. 16, s. 19 67 c. 50 . . 73 4 Anno, c. 16, s. 27 . 425 4 Edw. 3, c. 7 . . 59 7 Anno, c. 12 . 137 25 Edw. 3, St. 4, c. 4 . 637 8 Anno, c. 14 . 714 c. 5 . 59 8.1 . 697 34 Edw. 3, c. 1 . 656 c. 19 . 547 36 Edw. 3, St. 1, c. 12 . . 657 9 Anne, c. 20 . 650 43 Edw. 3, c. 20 . . 737 10 Anne, c. 23, s. 1 . 257 5 Eic. 2, c. 7 . . 381 8 Geo. 2, c. 13 557. 558 5 Eic. 2, c. 8 . . 382 20 Goo. 2, c. 19 676 2 Hen. 6, c. 15 . 637 24 Geo. 2, c. 44, s. 6 126. 716. 8 Hon. 6, c. 9 . 85, 381 793 21 Hon. 8, c. 11 . 451 7 Goo, 3, c. 38 . 557 23 Hen. 8, c. 15 . 786 88. 2-8 557 25 Hen. 8, c. 11 6 13 Geo. 3, 0. 78 665 33 Hen. 8, c. 10 . 657 8.81 . 731 1 & 2 Ph. & Mary, c. 12, 8. 1 . 85 14 Geo. 3, c. 78, s. 84 373 2 & 3 Ph. & M., c. 7 . 451 17 Geo. 3, c. 57 . 557. 558 13 EUz. c. 5, 8. 2 . 24 17, 248, 253 32 Geo. 3, c. 60, 8. 1 208 s. 6 . . 247 S8. 2, 3 . 208 27 Eliz. c. 4, s. 2 . . 250 38 Geo. 3, 0. 71 . 555 8.3 . . 250 41 Geo. 3, c. 107 . . 549 29 Eliz. c. 4, s. 1 . 707, 709 c. 109, 8. 32 428 29 Eliz. c. 5 . . 247 54 Geo. 3, c. 56 555 31 Eliz. c. 11 . . 381 c. 156 549 c. 12 . . 451 59 Geo. 3, c. 12, s. 24 665 4 Jac. 1, c. 3, B. 2 . . 786 3 Geo. 4, c. 126, 8. 143 779 7 Jac. 1, c. 5 . 126, 719 4 Geo. 4, c. 34 . 667 21 Jac. 1, c. 3 . . 560 c. 83 . . 474 s. 6 . . 565 5 Geo. 4, c. 83 . 158 c. 12, s. 5. 126, 719 6 Geo. 4, c. 94 . 474 c. 15 . 381 8. 4 . . 474 c. 16 . 62 7 & 8 Geo. 4, c. 18 . 144 8. 3. 66,67 c. 29 . 451 8.6. . 787 c. 30, 8. 41 . 794 s. 4. . 67 0.31 . 127 8. 7. . 67 9 Geo. 4, c. 14, 8. 6 . 738 12 Car. 2, c. 24, s. 8 597, 604 8.27 146 29 Car. 2, c. 3, 8. 16 . 481 c. 32, 8. 3 . 172 0. 7, 8. 6 . . 686 c. 69, 8. 2 . 157 1 W. & M. 0. 21, 8. 6 . 668 1 & 2 Will. 4, c. 32, 8. 30 665 c z c I < XCVl INDEX OF STATUTES CITED. 1 & 2Will. 4, c. 41 19 2 & 3 WiU, c. 58 . 4, c. 71, H. 1 H ) s. ;} s. 4 8. 5 H. (> 8. 7 H. H 3 & 4 Will. 4, c. lo . 88. 2, c. 27, 8. 3 8. 7 8.8 s. g 8. 10 8. 11 s. 12 8. 13 s. 14 8. 25 8. 2G 8. 29 8. 3G c. 42, 8. 2 8. 29 c. 71, 8. 2 5 & Will. 4, c. 20, s. 19 c. 50, «s. 20 8. 70 8.72 8, 73 8. 74 8. 109 8. 5 c. 65 6 & 7 Will. 7 Will. 4 & 1 & 2 Vict. 2 & 3 Vict. 3 & 4 Vict. 6 & 6 Vict. K^ . 4, c. 76 . 1 Vict. c. 55 c. 74 c. 110, 88. 1- c. 12, s. 2 c. 47, 8. 54 c. 54 c. 71, s. 52 s. 53 c. 84, 8. 11 c. 93 s. 8 c. 9 88. 2, 3 c. 88 c. 39, 8. 1 8. 2 8. 3 s. 4 c. 45 8. 2 8.3 8.4 8. 13 10 PAOE 720, 779 126, 720, 779, 793 . 694 322, 326, 3;)6 323, 326 . 331 . 334 . 325 . 336 337, 339 . 338 . 554 . 554 , 262 . 263 . 265 . 2()6 267, 268 . 267 . 266 . 266 . 267 . 267 . 2()9 . 269 421,425 58, 61 . 513 . 436 . 779 14 520 620 620 620 780 552 552 211 707 665 160 210 45 599 721 779 679 720 720 . 199 . 139 . 720 . 474 . 475 . 475 476, 478 548, 552 . 547 . 547 . 547 . 547 41 720, 126, 3 & 6 Vict, c. 21 G & 7 Vict, 45, s. 17 88. 20, 8. 22 88. 24, 2G 8. 25 1 2 4 5 31 28 1 2 19 c. 97, 8. 8. 8. H. 0. 98, 8. c. 86, 8. c. 96, H. 8. c. 12. s. 7 Vict 7 & 8 Vict. c. 12 c. 112, s. 18 8 Vict. c. 18, 8. 52 . c. 20, 8. 81 . 88. 103, 104 8 & 9 Vict. c. 16, 8. 141 c. 18 s. 12 8. 18 8. 22 88. 25— 8. 39 8. 63 8. 68 37 PAGK . 550 . 554 . 554 . 551 . 5'47 . 794 . 794 . 782 . 69 . 707 . 117 . 216 . 213 . 5-53 . 550 75 . 794 . 703 118, 159 . 781 750, 752 . 772 771-774 . 750 . 760 . 653 752 10 ') c. 20 85 92 121 127 128 135 G 16 46 47 48 58 61 68 77 78.. 81 103, 8. 139 c. 87, 8. 116 c. 100 . c. 113, 8. 1 8. 2 9 & 10 Vict. c. 93 . 8. 2 s. 3 c. 95, 8. 33 s. 90 s. 113 8. 118 B. 138 10 & 11 Vict. c. 14, s. 51 8. S. S. s. s. 8, 8. 8. 8. 8. S. 8. B. 8. 8. S. S. 88. 750, 760, 795, 764, 774 . 750 : ;52 773, 774 771, 773 . 772 781, 785 625, 751 . 751 . 755 . 623 . 624 . 625 . 623 . 625 73, 346 430, 754 430,431,754 763 104 159 785 126 162 146 161 604 604 604 713 114 656 716 656, 714, 779, 785 . 785 INDEX OF STATUTES CITED. XCVU A. PAGE PAQE lO&U Vict. C. lo, 68. 11, 21— 17 & 18 Vict. 0. 104, 8. 510 . 635 23, 25, 8. 516 . 635 29 . 75 c. 125, 8. 78 . . 88 c. IG, 8. 103 . 785 18 & 19 Vict. c. 91 . . 533 C. 17, 8. (i . . 751 0. 105, 8. 9 . . 162 8. 84 . . 785 c. 120, 8. 8G . 751 c. 27, 8. 91 . . 785 0. 122 379, 424, c. 34, 8. 24 . . 727 444 8. 107 . 727 8. 83 . 380 8. 209 . 785 8. 94 . 379 c. 65, 8. Gl . . 785 19 & 20 Vict. c. 69 . . 720 c. 89, 8. 1.") . . 157 8. 15 . . 720 8. 72 . . 785 c. 97, 8. 1 . . 481 c. 95 . . 550 8. 10. . 67 11 & 12 Vict. c. 42, 8. 1 . . 659 8. 12. . 67 8. 8 . . G59 c. 108, 8. 5 . . 49 8. 10. . 6G1 8.24 . 714 8. 17. 221, 6G0 s. 2G . 789 8. 20. . G60 8. 38 . 114 c. 43 . . G71 8. 39 114, 789 8. 10 . 661 8. 43 . 641 8. 14 643, GG9 8. 50 . 382 8. 19 670, 719 8. 55 . 713 B. 20 670 8. 56 . 714 88. 21- 24 . 671 8. 60 . 713 8.27. . 671 8. 75 . 714 8. 35 . . 671 20 Vict. c. 2, 8. 4 . . 720 c. 44 . . 641 20 & 21 Vict. c. 81 . . 435 8. 1 . 673, 784 c. 85, 8. 21 . . 238 8.2 . 674, 681 8S. 21, 26 . 122, 8. 3 . 125, 676 124 8. 4 67 3, 677, 678 8. 25 . . 237 8. 6 . . 677 8.31 . 592, 694 8.8 . . 679 8. 33 . 591, 594 8.9 . 777, 778 8. 34 . . 594 s. 11 . . 785 8. 35 . 600, 602 8. 13 . 125, 680, 8. 59 . . 691 793 21 & 22 Vict. c. 27, s. 2 . . 395 8. 14. . 793 c. 74, 8. 4 . . 641 c. 63 . . 757 c. 90, 8. 29 . . 650 8. 139 . 780 c. 108. . 602 8. 144 761, 767 8. 6 . . 238 c. 99, 8. 1 . . 345 8.7 . . 238 12 & 13 Vict. c. 45, 8. 18 . . 643 8. 8 . . 237 c. 92, 8. 5 . 402, 403 8.22. . 602 c.106,8. 125 . 483 22 & 23 Vict. c. 61, 8. 4 . 601, 602 8. 133 . 243 23 & 24 Vict. c. 32, ss. 2, 3 . 157 13 & 14 Vict. 0. 21, 8. 4 . . 112 c. 126. . 694 c. CI, 8. 19 . . 715 24 & 25 Vict. c. 96 . 156, 673 14 & 15 Vict. c. 19, 8. 11 . . 157 8. 24 . . 646 c. 99, 8. 13 . . 229 8. 100 . 451 15 & 16 Vict. c. 12 . . 550 8. 103 156, 673, c. 83, 8. 39 . 572 777 0. 85 . 435, 436 0. 97, 8. 61 . . 157 16 & 17 Vict. 0. 69, 8. 19 . . 537 8.71. . 794 0. 96 . . 162 c. 99, 8. 31 . . 156 17 & 18 Vict. 0. 36 . 460, 532 0. 100, 8. 31 . 144 c. 60, 8. 1 . . 402 8. 36. . 685 c. 104 533, 534, 632 8. 42. . 145 8. 55 . . 535 8. 44. 146, 147 8. 354 . 633 8. 45. . 690 s. 388 . 632 6. 46. . 664 88. 507, 508 636 c. 101 . 656, 657 9 I ^s .♦ i'S fc| ii XCVlll INDEX OF STATUTES CITED. PAGE PAGE 24 & 25 Vict. c. 134, n. 73 . 700 32 & 33 Vict c 71,8. 126 . 700 25 & 2() Vict. c. (il, s. 10. IIG 731 33 & 34 Vict c 93 . 62, 236 c. 03 . 533 634 c. 97, 8. 57 . . 465 8. 3 . , 534 c. 99 . . 211 B. 2.5 . , 629 34 & 35 Vict. c. 41, 8. 9 . . 76 s. 37. , 158 c. 43 . . 419 8s. 57— G4 , 634 s. 8 . . 419 c, G8, 88. 1—3. 555 , 557 88. 17, 19, 8.4 . 555 55G 22,23,25 s. 11. 555 —28 ,29 c. 89, 8. 20 . 574 —36,45, 8. 87. 691 46,47 . 420 8. 103 691 8. 53. . 419 c. 91 . 650 s. 68. . 785 c. 102 780 c. 56 . . 133 s. 75. 382 c. 110. . 533 88. 77, 96 .' 57 c. 112. . 158 8. lOfi 780, 782 35 & 36 Vict. 0. 8, 8. 13 . . 625 8. 107 382 c. 73 . . 533 C. Ill 162 c. 76, 8. 41 . . 429 27 & 28 Vict. c. 44 . 238 8. 51 . . 429 0. 75 . 621 c. 77,8. 13. . 429 0. 95 . 604 8. 23 . . 429 c. 101, ss. 25, 5l! 621 c. 96 . . 419 28 & 29 Vict. c. GO, s. 2 . 131 3(5 Vict. c. 12, s. 1 . . 599 c. 83, 8. G . 621 8.2 . . 596 c. 99, 8. 21 . 714 36 & 37 Vict. c. 38 . . 158 8. 39 . 114 0. 66, 8. 25 (3 ) . 416 29 & 30 Vict. c. 14, 8. 11. 713 (8 ) 90,91, c. 90 . 460 92, 390, 30&31 Vict. c. 115. GG8 422,423, c. 124, ss. 4- -G '. 75 650 c. 127, 88. 4,G ,7,9 G92 (9) . 630 (10) . 595 c. 131, 8. 38 741 —59 C. 141 . , 676 8.49. . 787 c. 142, 8. 5 . , 788 s. 67. . 788 s. 10 , 789 c. 85 . 630, 533 8. 31 , 715 8. 16. . 631 s. 33 , 788 8. 17. . 628 31 & 32 Vict. c. 29 . , 650 37 & 38 Vict. c. 50, 8. 2 . . 63 c. 35, s. 9 . , 451 c. 57, s. 1 . . 262 c. 47 . , 436 8.3 . . 2G8 0. 109. , 667 8.4 . . 269 c. 111. , 676 8.5 . . 268 0. 119,8. 24 , 445 38 & 39 Vict c 31 . . 692 88. 41- -43 751 c. 55, 8. 14 . . 365 32 & 33 Vict. 0. 18, 8. 1 . , 794 88. 13- -26. 274, c. 24 . 210 211 727 c. 47, ss. 5, 7 • 127 88. 15- -17 . 365 c. C2 . G71, 684, 685, 8.18. . 365 700 703 8. 19. . 365 ss. 1 — 10 . 685 ss. 21- -22. 365 s. 5 . . 704 88. 23- -26. 365 8. 6 . 160 702 88. 48- -50. 365 8. 9 . . 685 8. 54. . 296 88. 11- -20. 685 88. 68- -70. 274, c. 70 . • 75 378 c. 71 . 482 ,515 685 88. 91- -111 361 8. 11. • 486 88.112- -115 365 8. 15. 487 496 s. 144 14, 731 8.87. 243, 244, 700 8. 149 88. 166- . 442 -168 785 8.95. 243 ,244 s. 171 . 785 INDEX OF STATUTES CITED. XCIX 38 & 39 Vict. c. 55, 8. 264 SH, B. 8. c. 80 . c. 90, H. s. s. 8. C. 91, 8. 39 & 40 Vict. c. 30, s. s. s. 0. 80 . 40 & 41 Vict. c. 10, 8. c. 39, 8. s. 8. P. 8. 41 & 42 Vict. c. 31 . .30,-)- 313 332 o , (i . 10. 12. 10. 73. 207 208 4 2 3 4 5 B. 3 8. 4 s. 5 8. s. 7 8. 8 s. 9 8. 10 s. 11 B. 14 B. 10 8. 20 8. 23 c. 74, 8, 00 c. 77 . 42 & 43 Vict. c. 49 . B. 5 6. 8. 21 s. 2o 8. 3o s. 43 c. 59 . 43 & 44 Vict. c. 10, s. 11 c. 18 . c. 19, 8. 20 c. 42 . B. 1 B. 2 s. 3 B. 4 8. 5 B. 6 B. 7 8.8 c. 43 . 44 & 45 Vict. c. 24 . c. 25 . c. 20 . TAOE 1 727, 779, 785 -308 727 , 429 290 378 , 070 , 112 , 112 , 112 J 112 , 570 505, 724 514 724 , 779 , 533 , 018 , 479 , 479 , 479 , 472 479, 480 450, 400, 530, 532 400, 401 , 5:50 , 530 , 530 530, 532 401, 408 , 408 404, 405, 407, 408 , 407 , 408 , 405 , 492 , 407 , 785 , 021 001, 009 , 071 , 071 070 071 , 233 , 071 J 070 413 780 , 112 , 533 , 779 110 111 111, 112 111 , 113 , 113 • 114 , 114 113 114 112, 113, 115 , 533 , 071 , 419 • 429 44 & 45 Vict. c. 37, s. 28 . c. 41, H. PAOE . 304 303, 435 CO, s. 1 . . 200 8. 2 200,211,212 45 & 46 Vict, 158 433 413 552 552 552 554 c. 09, H. 9 c. 23 . c. 38, 88. 11, 29 c. 40 . 8. 2 . 8. 3 . 8. 4 . 0.43 400,404,530,532 8. 3 . . 450 88. 4 & 11. 459 8. 4 . 402,403, 458, 530, 532 8. 5 . 458. 459, 530,531,532 H. . 400,403, 404, 530, 532 403, 470 H. I 8. 8 450,400, 401,409 . 457 . 404 . 405 457,401 . 471 8. 9 8. 10 8. 11 8. 12 8.13. 8. 14 . 8. 15 . 8, 17 . c. 50, s. 225 8. 220 68.191,193, 194, 190, 220 c. 57, 8. 4 . 8. 5 . c. 01,88.24,30,02 8. 29 . 88. 29, 30, 38, 58 . si^. 29—31, 54 — 50, 80, 90 . ss. 00, 70, 70, 82 . 537 s. 09 . . 530 c. 75 . . 02, 77, 78, 122, 591 8. l,sub-8. 1 235 B. 1, sub-s. 2 78, 123,209, 519,792 8. 1, Bub-s. 3 748 8. 1, sub-B. 5 123, 498 8. 2 . 66, 235, 236, 498, 510 8. 5 . 235, 236 8.12.04,124,237 B. 13. . 04 8. 14 . . 03 8. 15 . 04, 792 471 492 457 040 70 720 788 789 538 539 541 540 INDEX OF STATUTES CITED. TAOE rAOE 4fi & 40 Vict. e. 75 H. 19 . . 236 40 & 47 Vict. c. 67, 83. 47 -51, 46 & 47 Vict. c. 15 , , . 700 65, 57 . 658 c. 41 . 533 8. 48 . 659 c. 49 . 780 8. 02 . 676 c. 52, 8.4 ". 253, 482, 699 8. (J.3 8. (H . 576 . 676 s. 9 . . 482 8. 05 . . 677 8. 25 . 100, 257, 085, 701 8. 00 8.67 . 676 . 676 8. 35 . . 240 8. 08 . 676 8. 37 . . 00 88. 09 -71, 8. 43 . 242, 482, 7( 5, 78, 480 90—92. 679 H. 44.04,00,239, 8. 70 . 577 245, 487 88. 72, 73, (;') 483, 490 75 . 573 8. 45. 244, 482, 080 8. 103 C. 01, 88. 1,2, . 561 4-0, 8. 40. 244, 080, 41, 02 . 533 700 88. 3, 55 . 532 8. 47. . 252 8. 34 . 528 H. 4H, . 250 47 & 48 Vict. c. 43 . 001, 070 8. 49 . 242, 480 0. 01, 8. 17 . 696 88. 50, "4, 8. 18 . 788 50. . 239 c. 68, 8. 6 . 602 8. 55 . 05, 239, 48 Vict. c. 13 • ■ . 021 240, 241, 48 & 49 Vict. c. 62 . . 162 242 c. 63 . . 558 8. 102 . 515 8. 2 . 561 8. 119 . 722 8. 3 562, 666 8. 124 . 702 8. 4 . 568 8. 145 . 700 s. 5 560, 501 88. 103 — 8. 6 . 662 107 . 685 8. 22 . 569 8. 108 . 239, 49 Vict. c. 25 , , . 162 241, 484, 49 & 50 Vict. c. 27, 8. 2 599, 604 087 8. 3, sub-8. c. 67 . 557, 568, 570, 792 8.4 2.. 597, 599 . 604 8.4 . . 569 s. 6 . GOO 8. 5 . 560, 561 8. 6 599, 604 88. 5 — 11 . 500 8.7 600, 603 B. 11. . 502 c. 33 . 5l »0, 553, 565 88. 12- -15. 562 8. 5(1 ) . 553 8. 13. . 508 8.8 . 548, 553 8. 17. . 502 8. 9 . 548 88. 18- -21. 507 8. 11 548, 653, 8. 25. 562, 569, 570 665, 657, 658 8. 20 . . 572 c. j7, s. 2 . 600 s. 27 . 560, 509 8. 3 . 668 88. 28- -32. 572 c. 38, 8. 2 120, 127 8. 31 . . 792 88. 3, 7 , 127 8. 34. 501, 502 c. 62 . . 238 8. 30. . 669 c. 57, 8. 1 . 699 8. 44. . 560 8.2 . 599 s. 46. . 502 8. 3 . 599 THE LIW OF TORTS. CHAPTER T. THE NATURE OF TORTS. SECTION I. THE WnONGl'Ur, ACT. Definition of a tort. — A tort has been defined as a wrong inde- pendent of contract. It may also bo defined as the infringement without lawful excuse of a right { coals dug up depreciated in value, was such a special and particular daniago as would enable the owner of the colliery to maintain an action for tho private injury resulting from the public nuisance (r). So, whore tho plaintiff, a farmer of tithes, was prevented by the defendant's obstruction from carrying them home, and was obliged, in consequence of the obstruction, to expend extra money in tho discharge of his lawful calling, it was held that an action would lie {ij). And where, from the too long standing of horses and waggons of the defendants in tho highway opposite liis house, (ho free passage of light and air to the plain- tiff's 2)remises Avas obstructed, and he was in consequence obliged to have gas nearly all day, it was held that an action would lie (s). So, if by reason of the access to tho plaintiff's premises being obstructed for an unreasonable time and in an unreasonable manner liis customers are prevented from coming to his coffee-shop, and he suffers a material diminution of trade, that will bo a particular, direct, and substantial damage (s). But no one can have an action for a nuisance or obstruction in a common highway without assign- ing some particular damage to himself individually, independent of tho general inconvenience to himself as one of the public («) ; and the expense of removing tlie obstruction is not such damage {h). Where tlie plaintiff, in an action for damages from an obstruc- tion in a public, navigable, tidal river, declared that he carried on the business of an innkeeper in a house abutting upon tho river, and that tho defendant placed beams and spars in the water Avhieh floated backwards and forwards with the tide, and obstructed tho access to the house at certain periods, whereby the plaintiff's customers were prevented from coming to his house to take re- freshments, it was held that this was a specific, particular damage resulting to the plaintiff from the public nuisance, which entitled him to an action for damages (r). And so, where the plaintiff was navigating a public, navigable river with his barges laden Avith goods, and the barges were impeded in their progress by a vessel 145; 21 L. J., Ch. 159. Wluhm v. lleusou, Ir. Rep., 6 C. L. 283. I'ritz v. Hobsun, U Ch. D. 542 ; 49 L. J., Ch. 321. (m) Benjamin v. .S7o>t, L. K., 9 C. P. 400; 43 L. J., C. P. 162. {x) Ivcson V. Moore, 1 Ld. Raym. 486 ; 1 Sulk. 15 ; Carth. 451. Green v. Lon- don General Omnibus Co., 7 C. B., N. 8, 290 ; 29 L. J., C. P. 13. (y) Hart v. Basset, Sir J. Jones, 156 ; 4 Vin. Abr. 519. Greasleij v. Codling, 2 Bing. 263. Sec also the observations of Willcs, J., Beehett v. Midland Rail. Co., L. R., 3 C. P. 82, 97 ; 37 L. J., C. P. 11. (;) Benjamin v. Storr, L. E., 9 C. P. 400 ; 43 L. J., C. P. 162. {a) Chiehestcr V . Lethbridge, Willes, 73. Hubert V. Groves, 1 Esp. 148. (A) Winterbottom v. Lord Derby, L. R., 2 Ex. 316; 36 L. J., Ex. 194. (e) Rote T. Groves, 5 M. & G. 613 ; 6 Sc. N. R. 653. THE WRONGFUL ACT. H 13 SECT. I.] 12 which tho defendant had wrongfully moored across the stream, and the plaintiff, in consequence of tlie obstruction, was compelled to unload liis barges and carry his goods by land to their place of destinatio,., it was hold that tho plaintiff was entitled to recover from tho defendant all tho expenses of the land carriage of the merchandise {r) . It has been held that there is no general common law right of bathing in the sea, and passing over every part of the shore for that purpose, independently of usage and custom (./') ; but such a right may exist by proscription or custom, and may be gained and retained by the owners and occupiers of houses on tho sea- coast, or by the inhabitants of any village, parish, or district, so long as it can be exercised without creating any public nuisance {(j). The existence and the extent of the right are to be collected in this, as in other instances of customary and prescriptive rights, from the manner in wliicli the particular portions of tlie sea-shoro throughout the kingdom have from time immemorial been used(//). " Tlio right of bathing in the sea," observes Best, J. (/), " is as beneficial to the public as the right of fishing ; and, unless I felt myself bound by an authority as strong and clear as an Act of Parliament, I would hold, on principles of public policy — I might say public necessity — that tho interruption of free access to tho sea is a public nuisance. In the first ages of all countries the sea and its shores Avere left open to public use. In all countries it has been matter of just complaint, that individuals have encroached on the rights of the people. In England our ancestors put tho public rights in rivers under the safeguard of IffKjiia C/ifirfa. If tho principle of exclusive appropriation is extended so far as to touch the right of walking over the barren sands of the sea-shore, it will take from the people what is essential to their welfare, whilst it will give to individuals only the hateful privilege of vexing their neighbours " (k). There is no common law right of entering the land of another against his will for the purposes of the sport of fox-hunting (/). PuhUc rights — Breach of a public duiij. — Hitherto we have dealt with rights available against the world at large. We proceed now to deal with breaches of public duties owing to the community. An important distinction between rights available against all tho world and public duties is that, whereas the infringement of the s il (e) B.ose v. MiUs, 4 M. & S. 101. (/) BltmdeU v. Catterall, 5 B. & Aid. 268. See Hall on Sea Shores, p. 184 et seq. {a) See R. V. Crunden, 2 Campb. 89. (A) See Mace \.Philcox, loC.B.,N.S. 600 ; 33 L. J., C. P. 124. (t) In Bluiidell v. Catterall, differing, however, from the rest of the Court. {k) BlundeU v. Catterall, 6 B. & Aid. 287. [1) Paul V. Siimmerhayea, 4 Q. B. D. 9 ; 48 L. J., M. C. 33. _—;.„-■ _:i;rr.-*--T»tr' It THE NATURE OP TOUTS. [chap. I. H I ':■' It 13 former always involves an act of some kind or other, the breach of the latter may and froq\iontly doo.s consist in an omission. Publio duties whieh exist at common law arc chiefly those attached to public offices which are cither judicial (/«) or ministerial (»). There are also some quasi publio officea such as that of a common carrier, or of a common innkeeper ; the former of whom is obliged to carry, for every person wlio tenders him tho proper charge, all goods which he has convenience for carrying, and in respect of which he holds himself out as a carrier ; whilo the latter is compelled to afford such shelter and accommodation as he possesses to all who apply, and who are able and ready to pay tho customary hire (o). The duties of common carriers and common innkeepers are, however, in other respects capable of being limited by their express contracts, so that it has been judged more convenient to treat of tho whole under tho law of contracts (p). Public rights — Public officers {q). — When a person undertakes a public office, he is bound to perform tho duties of tho office ; and, if he neglects or refuses so to do, and an individual in consequence sustains injury therefrom, that lays tho foundation for an action to recover damages by way of compensation for tho injiiry that ho has so sustained (r). Where, however, the duty is not absolute, but judicial functions are to be performed, or a discretion has been confided, an erroneous exercise of jurisdiction or discretion, however plain the miscarriage may be, and however injurious tho conse- quences, is not an actionable wrong. This follows from tho very nature of the thing ; it is implied in the nature of judicial authority, and in tho nature of discretion where there is no such judicial authority. But, where the law neither confers judicial power, nor any discretion at all, but requires certain things to bo done, every person, whatever other functions of a judicial or of a discretionary nature he may have, is bound to obey ; and, with the exception of the legislature and its branches, everybody is liable for the consequences of disobedience (.v). Thus, an action will lie at the suit of the party injured for a refusal by a publio officer to obey a writ of mandamus, or for a false return to tho writ {t). So, where the plaintiff applied to a justice of tho peace to take his examination under the statute of Elizabeth, the statute of Hue and Cry, and the justice refused to do so, and the plaintiff in consequence sustained injury by being thereby deprived of the (m) Post, p. 651. («) Fost, p. 682. lo) R.v.Ivens, 7 C. &P. 219. {p] See Addison on Contracts, 8th ed., bk. 2, ch. 1, Beet. 1, and ch. 2, sect. 4. (?) For further information on tho duties of piiblio ofBcera, aeepost, ch. 11. (/•) SntloH V. Johnstone, 1 T. R. 493. Ferguson v. Farl nf Kinnoul, 9 CI. & F. 251, 279. Laney. Cotton, 1 Salk. 17. (s) Ferguson v. Earl of Kinnoul, 9 CI. &F. 251, 290. it) Ferguson v. Earl of Kinnoul, 9 CI. i'. 251, 301. fc SECT. I.] THE WRONGFUL ACT. 16 14 right to bring a suit against the hundred, it was hold that ho was entitled to maintain an action against tho justice for tliis neglect of his public duty (»). Every one wlio is appointed to discharge a public duty, and receives a compensation, whether from the Crown or otherwise, is constituted a public olFicer (.<•). If a bishop, by neglecting to perform the plain duties of his ofTico, inflicts an injury upon another, an action for damages is maintainable against him. And, if a clergyman wrongfully refuses to administer the sacrament to a man, who is thereby prejudiced in his civil rights, or if the registrar of births refuses to register the birth of a person, and so causes him to lose an estate, an action for damages will bo maintainable. So, if a lord of a manor were to refuse or neglect to hold a court, by which a copyholder should bo prevented from having admission to his copyhold, an action for damt. jes would lie against such lord (//). So, too, all deputy postmasters are responsible for their own personal misfoazance ; for they are all made public officers, and charged with a great public trust sinco tho legislative establish- ment of tho Post Office. Thus, a postmaster is bound to deliver letters at the respective places of abode of the persons to whom they are directed, and is liable to an action for substantial damages if ho fails to do so. If a person to whom a letter is addressed cannot be found at tho place indicated, it is the duty of the post- master to make reasonable inquiry after him (s). So, if tho man who canios tho letters to the Post-office loses any of them, he is answerable ; so is tho sorter in tho business of his department ; so is tho postmaster for any fault of his own {a). The collector of customs is, in like manner, responsible in damages to all who sus- tain a direct and immediate injury from a neglect by him to execute the duties of his office, as for refusing to sign a bill of entry which it was his duty to sign, or to make an order which it was his duty to mako {h). But a surveyor of highways is not liable to an action by reason of his omission to repair the highways, as he is in fact only the servant of tho parish, upon tho inhabit- ants of which the duty of keeping the highways in repair really rests (c) . («) Green v. Jiiicklecliurcltes, 1 Leon., p. 323, c. 456. (*) See Irwin v. Greif, L. R., 1 C. P. 171 ; 2 H. L. 20 ; 35 L. J., C. P. 43 ; 36 L. J., 0. P. 148, {(/) Ilenley v. Mayor of Lyme, 5 Bincr. 108. Ferguson v. Harl of Kinnoul, 9 Ci. &F. 251. (z) Eowtiing v. Goodchild, 2 W. Bl. 908. Smith v. Powdich, 1 Cowp. 182. (a) Whitfield V. Lord Le Despenser, Cowp. 765. (b) Harry v. Arnaiid, 10 Ad. & E. 670. (c) Young v. Davis, 7 H. & N. 760 ; 2 H. &C. 197; 31 L. J., Ex. 234. 5& 6 Wm. 4, c. 50, 8S. 20, 41. Powers and duties of surveyors are vested in urban authorities by the Public Health Act, 1876 (38 & 39 Vict. o. 66), s. 144. h ii! 16 Tin: NATITRK OF TOUTS. [CITAP. I. 15 Sfafufori/ riijlits and thttifH. — In addition to thoso rights and dutios which exist at common law, th<s are annexed to public oflioe.s nowly created, Boraotimes thny are Huhstituted for duties previouHly existing at common law, and Honietinu'8 ilioy are imposed in exchange for benefits ccm- forred by statute. A person who socks for and accepts some statutory brnefit to which a burthen is attached, cannot take the beiuifit and reject the burthen. Where, therefore, the Crown, for the benefit of the public, has made a gnuit of any property, benefit, right, or privilege, imposing at the same time certain public duties or obligations, and the grant has been accepted, the public may enforce the performance of the duty by indictment, and indi- viduals, peculiarly injured, by action ('^Z). Thus, every person who accepts a grant of land from the Crown, accompanied by a com- mand or direction to keep up, repair, and maintain certain build- ings, boa-walls, ditches, and sluices, for the benefit of the public, takes the land subject to the servitude imjioscd thereon ; and, if any private individual sustains a private and peculiar injury from the non-repair of the sea-walls, «tc., ho is entitled to an action against the grantee or his assigns, who have failed to fulfil the duty imposed upon him or them {c). When statutory powers and axitlio- rities are granted by permissive words, they are permissive only so long as the benefits they confer are not taken under them ; for, as soon as the grantee takes the advantage of the statute, and acts on its powers, he takes all the burdens attached by the Act to the benefits, and is liable to an action at the suit of any person who has sustained special damage by the non-performance of the statu- tory duty (./'). AVhere an Act of Parliament prohibits the doing of a particular act affecting the public, no person has a right of action against another merely because he has done the prohibited act. The plaintiff must, therefore, prove some special damage, some peculiar injury, beyond that which he may be supposed to sustain in com- mon with the rest of the Queen's subjects by an infringement of the law {g). Of so-called torts founded on contract. — A tort having been defined to be a wrong independent of contract, it follows that, if that defi- nition is correct, there can be no tort founded on contract, and that so-called torts founded on contract are breaches of contract or quasi- contract, and not torts. There is, indeed, a large class of cases (rf) Lyme liegis [Mayor of) v. Henley, 1 Bing. N. C. 222 ; 2 a. & F. 331. («) Henley v. Mayor of Lyme, 5 Bing. (/) Nicholl V. Allen, 1 B. & S. 916 ; 31 L. J., Q. B. 283. iff) Chambcrlaine v. Chester and Bir- kenhead Hail. Co., 1 Exch. 877. SECT. I.] TIIK WRONGFUL ACT. 17 16 known as imiiliod contracts, whoro tlio law recognizes a duty or obligation Homotinios ari»ing out of a iiroccding contract, and Honio- timos arifiing indopondcntly of nny contract. In all those cases where the duty or obligation ar'soa out of a precedent contract, tho violation of tho duty in in truth a breach of contract ; but, as tlieao cases present some features in eonunon with that other branch of implied contracts which embraces duties independent of any con- tract, it was usual under tho old mode of pleading to state in both those classes tho facts out of which the duty or obligation arose, with or without an allegation that such duty arose therefrom. This mode of pleading being similar to that adopted in the case of an ordinary tort, and differing from that adopted in tho case of an express promis(>, where tho promise and tho broach of that promise were alleged, these cases acquired the name of torts founded upon contract. In tho form of pleading they resembled an ordinary tort ; but in their essence they wore broaches of contract and not torts. An instance may be found in the case of an action against a common carrier for the loss of goods entrusted to him to carry. In this case from the facts that the defendant is a common carrier and that without any express contract goods have been received by him to carry for the owner, the law implies, it is said, a duty on the part of the common carrier to carry such goods safely to their destination ; and a simple allegation of those facts, coupled with the further fact that the carrier had lost tho goods, showed a cause of action, which, as the declaration contained no state- ment of any promise or contract, was said to be a declaration in tort as opposed to a declaration alleging an express promise and a breach of that promise. It is manifest, however, that in the case supposed the duty does in fact arise out of an unexpressed contract, that is, out of a concurrence of intention in both the sender and the carrier that the latter shall carry the goods for the former ; and, indeed, a declaration alleging that, in considera- tion that the sender would deliver the goods to the carrier to be carried for hire, the carrier promised to carry them safely, was always hold to be established by proof of a delivery of the goods to the carrier to be carried. The fact that the same cause of action could thus be stated in two diflPerent ways, and that in the one case it was called an action of tort and in the other an action of contract, led to some confusion as to the real nature of the action (h). But it had become well established, even before the abolition of the old forms of pleading, that the substance and not the form of the action was to be regarded (t) ; and, under the (A) Tattan v. Great: Western Rail. Co., 2 El. & El. 844 ; 29 L. .T., Q. B. 184. See Fleming v. Manch. S. ^ L. Rail. Co., 4 Q. B. D. 81 ; FoHlkes v. Metrop. Rail. A. Co., 4 C. P. D. 267 ; 6 C. P. D. 157 ; 49 L. J., C. P. 301. (i) Legge v. Tucker, 1 H. & N. C COO; *: i a I l;ii ' ill il i^i *1 ^ li ? ! I: I ill III I 18 THE NATURE OF TORTS. [chap. I. 17 present system of pleading, the old difficulty is hardly likely to recur. Conflict of rights. — Unless they were modified and restricted by law, the rights of different individuals would in certain cases nocosbarily clash with one another. To prevent inconveniences of this natiu-e, the law interferes and regulates these conflicting rights, sometimes subordinating one to the other, and at other times allowing both to exist together on the terms that either right shall only be exercised bona fide and with due care. Thus, the right of A to dig a hole in his own land is subordinated to the right of B to have liis land supported by the ""djoining land of A ; and, if A digs a hole at the edge of his land and so near to i?'s that the surface of ^'s land gives way and subsides, A is responsible for the damage thereby caused to B. On the other hand, the right of A to use a public highway is not subordinated to, but exists concurrently with, the right of B to use it, the only restriction being, that each shall use the way bona fide and with due care. A, therefore, is not responsible for an injury done to B by his use of the highway, provided he uses it bond fide antt with due care. If, however, A, driving along a highway, drives negli- gently so as to come into collision with B, he is responsible for the damage done ; and he is also liable to an action, if, under pretence of iising the highway himself, he maliciously obstructs B in the use of it. The due regulation and subordination of conflicting rights con- stitute the chief part of the science of law. It is impossible to give any rule applicable to all cases which may arise except the general one that, whenever damage is caused by one man to another, the law, in deciding which shall bear the loss, is governed by principles of expediency modified by public sentiment. Infringement of rights. — If A in doing an unlawful act causes damage to B, A is liable to an action, whet^ )r the damage was caused accidentally or intentionally, and whether the act was unlawful jf;er se, or merely unlawful sub wodo, that is, subordinated under certain circumstances to the confiicting right of B. Infringement of rights — Accident. — No person may be excused of a trespass except it be adjudged to have been committed entirely without fault, or to have been an inevitable accident. " Looking into all the cases from the Year-book in the 21 Hen. 7, down to the latest decision on the subject, I find the principle to be," ob- serves Grose, J., " that, if the injury be done by the act of the party himself at the tim*-, or he be ^\e immediate cause of it, 26 L. J., Ex. 71. Morgan v. Baveu, 6 H. & N. 265 ; 30 L. J., Ex. 131. £aylii V. LintoU, L. R., 8 0. P. 345 : 42 L. J., C.P. li.. SECT. I.] THE WRONGFUL ACT. 19 t8 though it happen accidentally or by misfortune, yet he is answer- able "(A-). "By injuria," observes Willes, C. J., "is meant a tortious act ; it need not be wilful and malioioiis ; lor, though it be accidental, an action will lie" (l). Thus, if the damage done is the immediate result of force exercised by the defendant, in a place where the probable and na^.^iral result of misdirected force would be to cause injury to others, the defendant will be responsible for the damage done, though it happen accidentally, or by mis- fortune {tn), unless the force was used strictly in self-defence. As, where one shooting at butts for a trial of skill with the bow and arrow accidentally wounded a man, it was held that he was re- sponsible in damages, though he was doing an act lawful in itself, and had no unlawful purpose inview(«). ** So, if I turn sud- denly round and knock a man down w>hout intending it, I am responsible for the injury I do him " (o). Where to an action of trespass the defendant pleaded that he was a soldier of the trained bands, and was skirmishing with muskets charged with powder for exercise in re militari, and that in discharging his musket he acci- dentally and unintentionally injured the plaintiff, it was held that the plea, being a mere excuse and no justification, afforded no answer to the action (p). And, where the defendant was uncock- ing his gun, and the plaintiff was stooping to see it, and the gun went off und wounded the plaintiff, it was held that the plaintiff might maintain au action for the injury (q). So where, to an action of trespass for mowing the plaintiff's land and carrying away the grass, the defendant pleaded that he had land adjoining the plaintiff's, and, in mowing his own land, involuntarily and by mis- take he mowed some of the plaintiff's land, intending only to mow his own land, it was held that this was no answer ; for the act was voluntary, and the knowledge and intent of the defendant could not be ascertained and were immaterial {r). In the instances given above, the acts of shooting, or of moving one's body, or of mowing one's own grass, are in themselves lawful acts ; but, when they conflict with the right of another to personal security or to the enjoyment of his property under the circumstances stated in the foregoing instances, they aro subordinated to the last-named rights, and are under those circumstances unlawful acts. If, on the other hand, A in doing a lawful act unintentionally causes damage to £, A is not liable to an action, unless, either he was not doing the act bond fide in the enjoyment of hw right, 677 [A) Leame v. Bray, 3 East, 699. I) Winsmore v. Greenbank, Willes, r. [»>) Lickenaon v. WaUon, 2 Jones, 205. In) 21 Hen. 7, 28 a. (o) Lawrence, J., Learnt v, Bray, 3 East, 696. Post, p. 140. {p) Weaver v. Ward, Hob. 134. Dick- etison V. Watson, 2 Jones, 205. 'q) Underwood v. Hewson, 1 Str. 596. (>•/ BaseUy v. Clarkson, 3 Lev. 37. Post, p. 360. c2 20 THE NATURE OF TORTS. [chap. I. 19 but maliciously with intent to injure J?, or in doing the act in question he wa3 guilty of some negligence without which the damage would not have been caused. For a man may sustain grievous damage at the hands of another ; and yet, if it is the result of a lawful act, done in a lawful manner, without any carelessness or negligence, there may be no legal injury, and no tort giving rise to an action for damages. An act of force, for example, done in necessary self-defence, causing injury to an innocent bystander, is damnum sine injuria; "for no man does wrong, or contracts guilt, in defending himself against an aggressor" (s). Thus, if a lighted firework is thrown into a coach full of company, and is flung out again in necessary self-defence, and falls against and burns a bystander, or explodes in his face and blinds him, the person throwing out the firework is not answerable for the damage, as he was a )ting in self-defence, and has done no wrong. The wrong- doer is the party who originally threw the burning material into the coach; and as against him there is that conjunction of damage and wrong which constitute a tort, and will support an action {t). So, where the owners of a canal, in protecting themselves from an overflow of water from a neighbouring river, augmented the damage to their neighbours, it was held that the latter had no right of action, as the canal owners in no sense brought the water or caused it to come to the place where the damage happened, and were («) Do Grey, C. J., Scott v. Shepherd, 3 WUs. 412 ; 2 W. Bl. 892. (t) Gould, J., Scott V. Shepherd, 2 W. Bl. 892, 898; 3 Wils. 412. For the consequences of a lawful act, done in a lawful manner, no liability can attach, unless the party doing the act has been guilty of negUgencG which contributed to the injury (Auburn, ^r. Flank Itocd Co. V. Douglass, 9 N. Y. 444 ; La Sala V. Holbrook, 4 Paige, Ch. (N. Y.) 169 ; Thurston v. Hancock, 12 Mass. 220 ; Sotce V. Young, 16 Ind. 312 ; Thomasson V. Agnew, 24 Miss. 63 ; Detroit Daily Fast V. McArthur, 16 Mich. 477 ; Felim V. Reichardt, 8 Wis. 2o5) ; and the same rule prevails where the injury results from an inevitable accident : Vincent v. Stinchour, 7 Vt. 62 ; Sizzell y. Booker, 16 Ark. 308 ; Gault v. Hume, 20 Md. 297 ; Burton v. Davis, 15 La. An. 448. But where an act is lawful, yet if it is un- necessary and dangerous, the person doing, it cannot excuse himself against in- juries resulting therefrom, upon the gpround merely that they were acciden- tal and unintentional. Ho must also show that ho \ised extraordinary caro to prevent injury to others. Thus, in Welch V. Durand (36 Conn. 182), the defendant fired a pistol at a mark, the ball of which glanced and hit the plain- tiff, although it was shown that the injury was unintentional, yet the injury being the result of gross and culpable negligence on the part of the defendant, he was held liable therefor, liullcr, J., said : ' ' Shooting at a mark is lawful but not necessary, and may be dangerous, and the law requires extraordinary caro to prevent injury to others ; and if the act is done where there are objects from which the balls may glance and en- danger others, the act is wanton, reck- less, without due care, and grossly neg- ligent." So, where a person, upon his own premises, fires a gun near a high- way, whereby the horse of another pass- ing over the highway is frightened, and injury results therefrom, ho is liable, although he did not intend to frighten the horse, if the act can be said to be negligent: Cole v. Fisher, 11 Mass. 187. bo, where a person who had ascended in a balloon came down in the plaintiff's garden, and a crowd of people was thereby attracted, who, in assisting the aeronaut, broke down the vegetablea growing in the garden, it was held that the aeronaut was liable therefor, al- though his position was perilous : GuiUe V. Swan, 19 John. (N. Y.) 381. In order to excuse from liability, the accident producing the injury must be inevitable. That is, it must bo one which hap- I)ened without fault or blame on the part of the person through whose agency it occurred. m SECT. I.] THE WRONGFUL ACT. 21 entitled to protect themselves against the common enemy («). So, the defendant was held not to be liable, where the horse which he was driving, being frightened by the sudden noise of a butcher's cart which was driven furiously along the street, became ungovern- able, and plunged the shaft of a gig into the breast of the plaintiff's horse (x). So, "if I ride upon a horse, and J. S. Avhips the horse so that he runs away with me, and runs over any other person, ho who whipped the horse is guilty of the assault and battery and not I" (//). If yl's horse runs away with him, and, in spite of his efforts to the contrary, strikes against the plaintiff, A is not liable, if ho was lawfully driving along a highway and was not guilty of any negligence (2). "Where one ship is, by the improper naviga- tion of a second ship, compelled to alter her course, and so does damage to a third ship, the ship which compelled the alteration of course, and not that whose course Avas altered, is liable for the 20 damage (a) . If instructions for an action are given, and through the mistake of the solicitor a wrong person is sued, and the latter fails to appear and plead, and judgment goes against him by default, and his goods are seized in execution, this is (lain.mm absque injiirid, and no action is maintainable. If he defends the action, and incurs costs which he cannot recover, he is in no better situation (b). But, although inevitable accident, or, as it is sometimes called, the act of God, is an answer where the different rights are co-ordinated by the commor; law, yet some of those rights which co-exist at common law may, by the express language of some statute, be subordinated to ethers. In such a case the words of the statute mudt receive their natm-al construction ; and, if it appears clear that a liiibility is imposed, even for the result of inevitable accident, the courts cannot introduce any exception thereto by intendment of law. But, as such a construction may work injustice, it must appear clc arly that the words of the statute were intended to create a liability without any restiiction (c). Iiifrinfjcnient of rifjhts — Negligence. — Whenever, in doing an act otherwise lawful, a man unintentionally causes damage to another, Avhich with ordinary care could have been foreseen and guarded against, he will generally speaking be liable to an action, provided such other person was injured in the exercise of a right available against the world at large, or against the person guilty (!<) Kield V. L. c\- K. W. Rail. Co., L. R., 10 Ex. 4 ; 44 L. J., Ex. 16. (x) Wakeman v. Robinson, 1 Bing. 213 ; 8 Moore, 63. And sec Holmes v. Mather, L. R., 10 Ex. 261 ; 44 L. J., Ex.176. (y) Gibbons V. Pepper, 1 Ld. Raym. 38. (z) Holmes v. Mather, L. R., 10 Ex. 261 ; U L. J., Ex. 176. («) The Sistcm, L. R., 1 P. D. 117 ■ 45 L. J., Adm. 30. (A) Rolfe, B., Hades v. Jenkins, 11 M. & W. 765. (f) River Wear Commissioners v. Adam- son, L. R., 2 App. Cas. 743; 47 L. J., Q. B. 193. Broeklehurst v. Manchester ^c. Tramways Co., 17 Q. B, D. 118. I 22 THE NATURE OF TORTS. [chap. I. n. of the negligence. Where the declaration alleged that the de- fendant wrongfully ana aogligently hung a chandelier in a public- house, knowing that the plaintiff and others were likely to be under the chandeHer, and that if not properly hung it would probably fall upon them, and that the chandelier fell upon the plaintiff, it was held that the declaration did not disclose any duty by the defendant to the plaintiff for the breach of which 'an action could be maintained, as it did not appear that the plaintiff was in the public-house in the exercise of any right available against the defendant (d). Where a coach broke down through the negligence of the coach-maker, who had contracted with the owner of the coach to furnish him with sound, roadworthy coaches, and the coachman was seriously injured, it was held that he had no remedy against the coach-maker. " It is a hardship upon the plaintiff," observes Eolfe, B., " to be without a remedy ; but by that conside- ration we ought not to bo influenced" (e). "There would be no 21 end of actions if we were to hold that a person, having once done a piece of work carelessly, should, independently of honesty of purpose" (or of contract), " be fixed with liabiUty in this way by reason of bad materials or insufficient fastening" (/). In a recent case the Master of the Rolls has laid down as law that whenever one person is by circumstances placed in such a position with regard to another, that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skiLL to avoid such danger (g). Where a waterworks company under their Act laid down a main under a turnpike road, the soil of which and of the land on either side was vested in B, and negligently permitted the main to leak, whereby C, who had entered into a contract with B to make a tunnel under thv. road, was delayed in his work, so that his contract became unprofitable, it was held that C had no cause of action against the company (A), In that case, B having ob- tained the consent of the surveyor of the highways and of the road trustees, had made a cutting across part of the road, intending to build his timnel below, to replace the soil, and make good the road {d) Coins V. Seldcn, L. R., 3 C. P. 495 ; 37 L. J., C. P. 233. See, how- ever, Heaven v. Pender, infra, and ElUolt V, Hall, infra. (e) Wintcrhottom v. Wright, 10 M. & "W. 115. Seo, however, Heaven v. Fender, infra. if) Per Willes, J., Collis v. Selden, L. R., 30. P. 498 ; 37 L. J., C. P. 233. iff) Heaven v. Pender, 11 Q. B. D. 503; 52 L. J., Q. B. 702. The other two learned judges did not conciir on this point, but thought the case was one of a duty arising from invitation. Seo post, p. 314. See also Elliott v. Hall, 15 Q. B. D. 315. (A) Cattle v. Stockton Waterworks Co., L. R., 10 Q. B. 453 ; 44 L. J., Q. B. 139. SECT. I.] THE WRONGFUL ACT. 23 above it, and then to cut through the other part of the road and make the rest of the tunnel in the same manner; and, when B had cut through part of the road, the water, escaping from the leak, flowed down upon the work ; and it was held that, assuming what B had done in obstructing the road to be indictable, the practical obstruction of the highway did not render the whole proceeding so ille2;al -orevent those engaged in it from recovering damages for a wrong, although the court held upon the grounds rlready stated that B was not entitled to recover (/<). The action for negligence proceeds upon the idea of an obliga- tion on the part of the defendant towards the plaintiff to use care, and a breach of that obligation to the plaintiff's injury (j). As a rule there must be affirmative proof of negligence on the part of the defendant to support an action ; for, where it is a perfectly even balance on the evidence whether the injury has resulted from the want of proper care on the part of one side or the other, the party 22 who founds his claim on the imputation of negligence fails to establish it {I). However, where the actual thing causing the accident is solely under the i lanagement of the defendant, and the accident is one which would not, in all probability, happen if the person managing the thing was using due care, it has been held that the mere occurrence of the accident is sufficient pritnd facie proof of negligence to impose on the defendant the onus of re- butting it{m). Property adjoining a spot on which the public nav^ a right to carry on their traffic is liable to be injured by that traffic. In this resi)ect there is no difference between a shop, the railings or windows of which may be broken by a carriage on the road, and a pier adjoining a harbour or a navigable river or the sea, which is liable to be injured by a ship. In either case the owner of the in- jured property must bear his own loss, unless he can establish that some other person is in fault, and liable to make it good ; and he does not establish this against a person merely by showing that he is owner of the carriage or ship which did the mischief ; for the owner incurs no liability merely because he is the owner. But he does establish such a liability agairist any person who either wil- fully did the damage, or neglected that duty which the law casts (/() See note (A), supra. (i) Wilde, B., Swan v. Korth British Australian Co., 7 H. & N. 603 ; 31 L. J., Ex. 437. It is, therefore, a relative term ; and the term "gross negligence " is, it has been said, oiJy ordinary negli- gence with a vituperative epithet. Seo Grill V. General Iron Screw Collier Co., L. R., 1 C. P. 600 ; 36 L. J., 0. P. 321. (/) Cotton V. Wood, 8 C. B., N. S. 568; 29 L. J., C. P, 333. Hanmacky. White, 11 C. B., N. S. 588 ; 31 L. J., C. P. 129. Ld. Wensleydalo, Morgan v. Sim, II Moore, P. C. 312. (w) Scott V. London Dock Co., 3 H. & C. 596 ; 34 L. J., Ex. 220. Briggs v. Oliver, 36 L. J., Ex. 163. Czech v. General Steam Navigation Co., L. E., 3 C. P. 14 ; 37 L. J., C. P. 3. Kearney y. Lond. S; Brighton Rail. Co., L. R., 5 Q. B. 411 ; 6 lb. 759 ; 39 L. J., Q. B. 200 ; 40 lb. 285. €■: I14U-JJJ1.JB:E!^!^^W" 24 THE NATURE OF TORTS. [chap. I. upon tlioso in charge of a carriage on land, or a ship on the water, to toko reasonable care and use reasonable skill to prevent it from doing injury, if ho shows that this wilfulness or neglect caused the damage (/;). The state of mind called negligence may proceed either from hoed' issness, whore the negligent person has not in his mind the consequences of his act, or from rashness, where he has the con- sequences in his mind, but thinks on insufficient grounds that they will not follow. Negligence may consist in acts of commis- sion or in acts of omission. A man is guilty of a negligent act of commission wlien, in the exercise of his rights, he does some- thing which is imnecessary lo the exercise of those rights, and which is likely to cause damage to others in the exercise of their rights. A man is guilty of an act of negligent omission when, in the exercise of his rights, he does something necessary to the exorcise of those rights, and which is likely to cause damage to others in the exercise of their rights, and omits to take reasonable precautions against the occurrence of such damage. Thus, a man 23 who rides or drives furiously along a highway is guilty of an act of negligent commission, while a man who makes a dangerous excavation in his own land immediately adjoining a public foot- way, without fencing it off from the footway, is guilty of an act of negligent omission. But, if a man is exercising a right with all proper care and precaution, and nevertheless unintentionally injures another, he is not liable to an action. Thus, where A was driving a carriage along the highway, and the horse being suddenly frightened ran away, and ran against B, it was held that A was not responsible, unless he either guided the horse against S, as, for instance, in the desire to escape from an alternative and greater evil, or was guilty of negligence in the management of the horse (o). In the case supposed, there was no act of ^'s which directly caused the injury to B, and the act which indirectly caused it, the driving along the highway, was not unlawful, and was not performed negligently. Negligence is the omission to do something which a reason- able man, guided by those considerations which ordinarily regu- late the conduct of human affairs, would do ; or the doing some- thing whicli a prudent and reasonable man would not do. A man may be liable for negligence, if, unintentionally, he omits to do that which a reasonable person would have done, or does that which a person taking reasonable precautions would not have («) Per Ld. Blaokbum, Jtiver Wear Commitaioneri v. Adamon, 2 App, Cas. 743,767; 47 L. J., Q. B. 193. (o) Holmes v. Mather, L. R., 10 Ex. 261 ; 44 L. J., Ex. 176. • SECT. I.] THE WRONGFUL ACT. 26 done. Wliero the defendants, a water company, having pipes of water laid in the streets, had provided against such frosts as experience would have led men acting prudently to provide against, it was held that they were not guilty of negligence heoauso their precautions proved insufficient against the effects of a frost of extreme and very unusual severity (/)). In order that an extra- ordinary natural event, such as a very high tide, sliould be, in the legal sense of the words, an act of God, it is not necessary that such an event should never have happened before. I' is sufficient that its happening again could not have been reason- ably expected. If such an event has happened once, but there is nothing to lead to the inference that it is likely to recur, it does not, if it happens a second time, cease to be an act of God iq). Contributonj ncyUgcnce. — A plaintiff cannot recover damages, if, but for his own negligence, or that of the person who repre- sents him, the accident would not have happened, though there 24 was negligence on the part of the defendant (r) ; for the plaintiff cannot complain of an injury which his own negligence and want of care have contributed to bring upon him (s). If a person of full age and mature judgment gets up into the defendant's cart, without any right so to do, and sustains an injury from the negli- gence of the defendant's servant, the person so trespassing is precluded from recovering damages from the defendant {t). " If," observes Domat, *' any one goes across a public cricket- ground whilst people are playing there, and the ball, being struck, chances to hurt him, the injury is to be imputed to the impru- dence of the person who sought out the danger, and not to the innocent striker of the ball"(H). Where, the plaintiff and de- fendart being jointly interested in the pulKng down and re- building of a party-wall between their respective houses, each appointed an agent to superintend the execution of the work, and the work was negligently done, and the plaintiff's house was much injured from the want of proper support during the oxeou- tion of the work, it was held that he could not maintain an action for damages against the defendant, as the blame was the common blame of both. " Since the wall," observes Lord Ellenborough, [p) Blyth y. Birmingham Waterworha Co., 11 Exch. 781 ; 25 L. J., Ex. 212. [q] Nitro- Phosphate and Odatn's Chemi- cal Manure Co. v. London and St. Katha- rine's Docks Co., 9 Oh. D. 603. (>•) Waite V. North Eastern Rail. Co., El. Bl. & El. 719 ; 27 L. J., Q. B. 417 ; 28 lb. 268. Ttiffv. IFaiman, 2 C. B., N. 8. 740 ; 27 L. J., C. P. 322. Senior V. Ward, 1 El. & El. 386 ; 28 L. J., Q. B. 139. Scott V. Dublin ^ Wicklow Rail. Co., 11 It. Com. LawBep. 377. Vaughan V. Cork ^ YoughalRail. Co., 12 lb. 297. («) Jervis, C. J., Martin v. Oreat Northern Rail. Co., 16 C. B. 192; 24 L. J., C. P. 209. Wise v. Great Western Rail. Co., 1 H. & N. 63 ; 26 L. J., Ex. 261. [t\ Lygo\. Kewbold, 9 Ercli. 306; 23 L. J., Ex. 109. (u) Domat, liv. 2, tit. 8, s. 4. 26 THE NATURE OF TORTS. [chap. I. 1 ■■■ ■ i p , 1 "was takon down by both, neither could impute negligence to the other" (j-). If an obstruction has been negligently placed in a public thoroughfare by the defendant, and the plaintiff has ridden against it, ho cannot recover damages from the defendant if it appears that ho was riding at an improper pace, or was intoxicated, and could have avoided the obstruction if ho had ridden with reasonable and ordinary care(//). If the risk is obvious, the plaintiff ought not to incur it (2), but should proceed to remove the obstruction, or take legal proceedings for its re- moval, and for tlio recovery of the damages he has sustained by being deprived of the use of the thoroughfare. Wherever the immediate and proximate cause of the damage is the plaintiff's own supineness, carelessness, or unskilfulness, he has no ground of action against the defendant, though the primary and original cause of damage be the defendant's wrongful act («). Thus, 25 where some bricklayers emi)loyed by the defendant had wrong- fully laid several barrowfuls of lime inibbish before the defen- dant's door, by the side of a highway, and, while the plaintiff was passing in his chaise, the wind raised a whirlwind of this rubbish, which frightened the plaintiff's horse and caused it to start on one side, in the direction of an approaching waggon, and the plaintiff, to prevent the horse from running against the waggon, pulled him sharply round, and the horse then ran over a lime-heap lying before another man's door, and the shaft was broken by the shook, and the horse, being then still more frightened, ran away and upset the chaise, and threw the plaintiff out and injured him, it v/as held that, although the defendant was to blame for putting the rubbish by the side of the road, yet, if the plaintiff's running against the second heap of rubbish was owing to his pulling the horse round too sharply, the immediate cause of the injury was his own unskil- fulness in the management of his horse, rather than the original wrongful act of the defendant (b). But the negligence or misconduct on the part of the plaintiff disentitling him to an action for compensation must be such as he is legally responsible for, and such as the law recognises as a co-operative cause of the injury. Where the defendant left his horse and cart for a long time unattended in the street, where some little boys were at play, and some of the boys got into the cart, and another boy led the horse forward to give them a ride, and one boy fell off the shafts and got his leg crushed under the wheel, («) Sill V. Warren, 2 Stark. 378. fy) Butterfeld\. Forrester, 11 East, 60. (2) Ckyardt v. Bethick, 12 Q. B. 446. Thompson v. North Eattem Hail. Co., 2 B, & 8. 106 ; 31 L. J., Q. B. 194. See Wyatty. Great WeiUm Hail. Co., 6 B. & S. 709 ; 34 L. J., Q. B. 204. (a) Young v. Grote, 4 Bing. 253 ; 12 Moore, 484. Butterworth v. Broivnlow, 19 C. B., N. S. 409 ; 34 L. J., 0. P. 266. (*) Flmer v. Adam, 2 Taunt. 314. SECT. I.] THjS wrongful ACT. 27 it was held that the defendant was responsible for the fall and the broken log, as it was the natural result of his misconduct in leaving the cart unattended, and that the boy, in consequence of his tender years and natural instinct for play, and want of reflection and fore- sight, could not be considered legally responsible for the damage he had sustained, so as to be precluded from recovering compensa- tion from the defendant {c). Where the defendant left the wooden covering of a cellar leaning against the wall, and the plaintiff, a child of seven years old, got upon it and jumped from it in play, by means of which it fell upon and injured him, it was held he could not recover {d). So, also, whore the defendant exposed for sale, without superintendence, a machine which any passer by might set in motion, and which, wlien set in motion, was dangerous, and the plaintiff, a boy of four years old, by the direction of his brother, put his hands in the machine while his brother set it in motion, it was held he could not recover (e). It has also been held that, if 26 children stray upon a railway, and get inj ured by a passing train, damages cannot be recovered by them from the company (/). Where negligence on the part of the plaintiff is remotely con- nected with the cause of the injury, the question to be determined is whether the defendant, by the exercise of ordinary care and skill, might have avoided the injury. If he could have done so, the remote and indirect negligence of the plaintiff cannot be set up as an answer to the action (g). Though a plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the accident which is the subject of the action, yet, if the defendant could, in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened,, the plaintiff's negligence will not excuse him (A). Thus, where the plaintiff negligently left his donkey in a public highway, tied together by the fore-feet, and the defendant carelessly drove over and killed the donkey in broad daylight, the animal being imable to get out of the way of the defendant's waggon, it was held that the misconduct of the plaintiff, in leaving the donkey in the highway, was no answer to the action ; for, although the donkey might have been wrongfully there, still the defendant was bound to go along the road with care, and at such a pace as would be likely to prevent mischief. " Were this not so, a man might i {c) Lynch v. Kurdin, 1 Q. B. 29. (d) Abbott V. Macfic, 2 H. & C. 744 ; 33 L. J., Ex. 177. As to two children playing together, see S. C, post, p. 43. («) Mangan t. Atterton, L. B., 1 Ex. 239 ; 36 L. J., Ex. 161. This case was commented on in Clark v. Chambers, 3 Q. B. D. 327 ; 47 L. J., Q. B. 427. See pott, p. 46. As to the death of a ohUd between verdict and judgment, see Kra- mcr y. Waymark, L. K., 1 Ex. 241 ; 36 L. J., Ex. 148. (/) Singleton v. Eastern Counties Rail. Co., 7 C. B., N. S. 287. (ff) Greenland v. Chaplin, 6 Exoh. 248. (h) Sadley v. Z. * JV. W. Bail. Co., 1 App. Gas. 754 ; 46 L. J., Ex. 673. 28 THE NATURE OF TORTS. [chap. I. justify tho driving over goods left in a public highway, or even over a man lying nsloop thcro, or tho purposely running against a carriage going on tlio wrong sido of the road " (/). Contributory nogligonco on tho part of tho plaintiff, therefore, will notdisenlitlo liim to recover damages, unless it were such tliat, but for that nogligoiioo, tho misfortune could not have happened ; nor if the defendant might, by tho exorcise of care on his part, have avoided the consctiuences of tho neglect or carelessness of the plaintiff (A-). Contributory negligence — Identification of the passenger with his driver.— When a collision between two carriages has been caused by negligent driving on both sides, neither party can recover damages from the other ; and it has been held that every passenger who has selected the particular conveyance by which he travels is so far identified with the driver or director of its movements, that, 27 if any injury is sustained by him from collision with a rival vehicle, through the joint negligence of his o^vn driver and that of the driver of the rival conveyance, precluding the former from maintaining an action against the latter, tho passenger is himself equally precluded, and his only remedy is against his own driver, or the employer of the latter {f). But " it see :3 highly unreason- able that each set of passengers should, by a iction, be identified with the coachmen who drove them, so as to be restricted for remedy to actions against their own driver, or his employer. Why both the wrong-doers should not be considered liable to a person free from all blame, not answerable for the acts of either of them, and whom they have both injured, is a question which seems to (t) Bavies v. Maun, 10 M. & W. 549. Mayor of Cokhenter v. Brooke, 7 Q. B. 377. {k) Tuff V. Warman, 6 C. B., N. S. 585; 27 L. J., C. P. 322. ficott v. Dublin ^- Wickhiv Mail. Co., 11 Ir. C. L. R. 396. This is the doctrine generally adopted by our courts : Ciil/ii/ian v. Warner, 40 Me. 131 ; inids v. Hudson Jtircr It. li. Co., 24 N. Y. 430 ; Ifil- Hams V. Michigan Central Ji. Ji. Co., 2 Mich. 259; Sleeper v. Sandoun, 52 N. H. 244 ; Sutton v. Wannatosna, 29 Wis. 21 ; Lindscy v. Danville, 45 Vt. 72; JS'eif- house V. Miller, 35 Ind. 463; irulsh v. Miss. ^-c. It. 11. Co., 62 Me. 434 ; Rich- mond, (?r. It. It. Co. V. Anderson, 31 Gratt. (Va.), 812 ; Tanner v. Louisville, %c. R. Jt. Co., 60 Ala. 621 ; Mei/ers v. Chicago, ^c. S. Jt. Co., 59 Mo. 223; Cleveland, ie. JJ. It. Co. v. Elliott, 28 Ohio St. 340 ; Manly v. Wi'mington, ^e. It. It. Co., 74 N. C. 655 ; Kline v. Cctitral Facijic It. It. Co., 37 Cal. 400 ; Kcnnayde V. Pacxjie R. R. Co., 45 Me. 255 ; John- urn V. Canal, ^e. R. R. Co., 27 La. An. 53. In Illinois, Georgia, and Knnsafl, tho doctrine of comparative negligenco prevails : Macon, %e. R. It. Co. v. John- Kon, 38 Ga. 409 ; Chicago, 4-c. R. It. Co. V. Grefzncr, 40 111. 74 ; Kansas I'acijtc R. It. Co. V. Painter, 14 Kan. 37. (0 Thorogood v. Bryan, 8 C. B. 131. Armstrong v. Lane. ^ York. Rail. Co.. L. R., 10 Ex. 47 ; 44 L. J., Ex. 89. And see Child v. Hearn (L. R., 9 Ex. 176; 43 L. J., Ex. 100; post, p. 297) for a curious instance of the application of this rule. See also The Bcrnina, 1 1 V. D. 31. Tliis is not tho rule generally adopted in this country, and a passenger is not precluded from a recovery unless ho has employed and has control over the driver, so that, for tho time, tho driver can be said to bo his servant. Tliis rule also applies where an injuiy results to a passenger over the railway of one company by the negligence of the serN'ants of another company : Trans- fer Co. V. Kelley, 36 Ohio St. 86 ; Cuddy v. Horn, 46 Mich. 696; Albion v. Hetrick, 90 Ind. 645. i.f'. V. ^Litj.-'i^ SECT. I.] TIIK WRONGFUL ACT. 29 deservo raoro considorntion than it has roooivod" (in). AVhoro tlio drivers of two rival oninibusos wore corapotiug for pnssongors, tlio ono ondoavouring to got boforo tho othor, and both driving at groat 8i)ood, and, in trying to avoid a cart which got in thoir way, tho wheel of tho dofondant's omnibus caino in contaot with tho projecting step of tho omnibus on which tho plaintiff was riding, and caused it to swing against a lamp-post, and tho plaintiff was thrown off and injured, it was held that ho was not disentitled to recover damages from tlie proprietor of tho rival omnibuH, by reason of misconduct on tho part of his own driver («). Tho owner of a cargo on board a ship is entitled to recover compensation for damage sustained by collision through negligence. And tho owner of a cargo on board of ono of two dolinriuent ships is not precluded, according to tho old rule in tho Court of Admiralty, from roeo- voriug from the other delinquent ship a moiety of the damage he has sustained; for ho is not considered to be in anywise identified with the negligent management of the ship ho has selected to carry his goods, nor to bo in anywise responsible for tho colli- sion (o). Infringement of rights — Malice. — If a man, though professing to exercise a right, is not acting honA fide in tho exercise of that right, but with tho object of causing damage to another, or with 28 some other corrupt and improper motive, ho is said to be actuated by malice, and will, generally speaking, bo liable for the damage so caused (/>). The word " raalioo " is used in two different senses with reference to a tort. Sometimes a malicious act is simply a wrongful act, likely to cause injury and done without lawful excuse, as where tho publication of an untrue defamatory state- ment is said to bo malicious, in which case *' malice " means no more than the wrongful intention which the law always presumes as accompanying a wrongful act ; and this is called malice in law. At other times, by a malicious act is meant an act done with the (w) Note to ^/»/*iy V. White, 1 Smith's L. C, Cth ed. 227. (w) liighy v. Ileivitl, 5 Exch. 240. Greenland v. Chaplin, ih. 247. And boo tho remarku of Dr. Lushington, The Milan, Lush. 388 ; 31 L. J., Adin. 112. (o) The Milan, Lush. 388; 31 L. J., Adm. 112 ; sco post, p. 029. As to what is "improper navigation" within the meaning of a deed of indemnity against the cousequonces of such navigation, see Good V. The Lond'.n Steam Shipowners' Mutual Proteeling Assoriation, L. R., C C. P. 663. It has been held in Ireland that the owner of a ship is not so iden- tified with a pilot compulsorily employed by him as to be disentitled to recover damages for an injury arising from negligence, where tho negligence of the pilot has contributed to the injury. Dudman v. Dublin Port and Docks Hoard, Ir. Rep., 7 C. L. 618. {p) Tozer v. Child, 7 El. & Bl. 381 ; 27 L. J., Q. B. 151. Thisdoes not apply to a lawful use of real property : Chaljield V. Wihon, 28 Vt. 49. In Phelps v. Kou-len (72 N. Y. 39), it was held that the maxim sic utcre, ^c. does not apply at all to an act lawful in itself, even though the act complained of is done with tho express intention to injure tho plaintiff. And as applied to the use of lands, this would seem to be i sensible rule: Ross v. Butler, 19 N. J.. Eq. 294 ; Frazier v. Brown, 12 Ohio St. 294 ; Mahon V. Brotvu, 13 Wend. (N. Y.) 261 ; Smith V. Bolder, 2 Dis. (Ohio) 153. \m Wi«m i Ui 80 THE NATURE OF TORTS. [chap. I. object of causing annoyance or injiiry to another, as where an intentional trespass is said to bo malicious (7), All torts aro malicious in the former sense, but not in the latter ; for molico in the latter sense is not a necessary ingredient in a wrong. For example, a battery or a trespass on land may bo ooramittod with- out any actual malice, and jot an action for damages may bo maintained (»•). Where, liowover, actual malice exists, an act which otherwise would not bo wrongful may bocorao the subject of an action ; for actual malice aggravates an unlawful act, and makes most acts unlawful which would otherwise bo lawful. Thus, if a free burgess of a corporation or any other person having an undoubted right at law to give his vote at an election of a burgess or knight to serve in parliament, is maliciously hindered or impeded in the exorcise of his right, an action for damages is maintainable apainst the disturber («). Any person has a right to stand for a place in parliament, or to oifor himself as a candidate for a vacant office ; and, if an election takes place, and it becomes difficult to determine who has the majority, ho is entitled to demand a poll; and, if the public officer who ought to have granted the poll maliciously denies it, he is liable to an action for substantial damages {t) ; for, if public officers will maliciously infringe men's rights, and "refuse to receive a voto which the (i.irty tendering has a right to give, and if an iction for it comes tc be tried before me," observes Holt, U. J., " I will direct tho jury to make them pay well for it" (h). In order to maintain tho action, the plaintiff must show that the refusal was founded in malice ; for, " if the returning officer has acted honestly and uprightly, according to the best of his judgment, ho is nrt amenable to an action "(a;). In tho celebrated case of Ashhy v. 29 Wh ite, where an action was brought against a returning officer for maliciously hindering an elector in the enjoyment of his electoral right, by refusing to receive his vote at an election. Lord Holt observes, " I do not find that the defendants did by force of arms drive the plaintiff away from the election, nor by menaces deter him, but I find they did maliciously hinder him ; and so it is charged by the plaintiff in his declaration, and so found by the jury, that they did it by fraud and malice. And so the defendant is an offender within the very words of the statute of West- minster" (i/). To put tho criminal law in force maliciously and (j) Bromage v. Prosaer, 4 B. & C. 265. (r) Hogeri v. Rajendro Dutt, 13 Moo. P. 0. 209. (*) Holt, C. 3.,Athbyy. White, 2 Ld. Baym. 954. CO starling v. Turner, 2 Lev. 60. («) Ashby V. White, 2 Ld. Baym. 958. Herring v. Finch, ib. 260. (x) Abbott, C. J., Cullen v. Morris, 2 Stark. 687. (y) Lord Holt's judgment in Ashbv v. White, cited in Tozer v. Child, 7 El. & Bl. 381 ; 26 L. J., Q. B. 151. SECT. I.] THE WRONOHTL ACT. 31 without any roosonablo or probable cause, is wrongful ; and, if thereby another is prejudiced in reputation, person or prop'^rty; tliero is that conjunction of injury and loss which is the foundation of an action (s). Iii/riiKjciticnt of riijhfi — Malic'miH asHorlion of a legal rights Maliviom ami iinfouudcd actions. — The malicious assertion of a legal right is not actionable. If one man prosecutes a civil action against another nialiciouely, and without reasonable and probable cause, an action for damages is not maintainable against tlio pro- secutor of the action. So, if one man slanders another in an action in a proper court, no action will lie for it(rt). Thoro is a great difference between the bringing of an action and indicting mali- ciouflly and without cause. When a man brings an action, ho claims a right to himself, or complains of an injury done to him ; and, if a man fancies ho has a cause of action, ho may suo and put forward his claim, ho\ over false and unfounded it may be. Tho common law, in order to hinder malicious, and frivolous and vexa- tious suits, provided that every plaintiff should find pledges, which wore amerced if the claim Avas false. But that method became disused, and then to supply it the statutes gave costs to the suc- cessful defendants. But there was no amercement upon indict- ments, and the party had not any remedy to reimbui'se himself but by action. If A sues an action against B for mere vexation, in some cases, upon particular damage, B may have an action : but it is not enough to say that A sued him false ct tnalitiosc ; he must show the matter of the grievance specially, so that it may appear to tho court to be manifestly vexatious (b). Infringement of rights — JWalicionslg putting the process of the law in motion in the name of a pauper or insolvent — Cluimperty and main- tenance. — No action will lie for improperly promoting a civil action in the name of a third person, unless it is alleged and proved to 30 have been done maliciously, and without reasonable or probable cause ; but, if there is malice and want of reasonable or probable cause, the action will lie, provided there is also legal damage (c). It would seem that even where there ia no directly malicious motive inducing the party to sustain the suit, yet if his acts tend to promote unnecessary litigation malice will be implied {d). If the plaintiff charges the defendant with having maliciously, and without any reasonable or probable cause, commenced and prose- h) Pott, oh. 7, sect. 2, p. 219. (a) Beauchamp v. Croft, Keilw. 26 ; Dyer, 286 a. (*) Saviley. Roberts, I Ld. Eaym. 37i; I Salk. 13 ; 12 Mod. 208. (e) Williams, J., in Cotterell T. Jones, II 0. B. 730 ; 2. ^ , 0. P. 3. 1 Ball. Abr. Action sub Cabb, H. pi. 1, p, lOl. Ram Cootnar Coondoo v. Chunder Canto Mookerjee, 2 App. Gas. 186. Flighty. Leman, 4 Q. fi. 883. (rf) Bradlaugh v. Newdegate, 11 Q. B. D. 1 ; 62 L. J., Q. B. 464. See also Harris v. Brisco, infra. 32 THE NATURE OF TORTS. [chap. I. i I outod an action against him in tlio name of an insolvent person for his (the defendant's) own benefit, whereby the plaintiff has sus- tained damage, the action will bo defeated, inasmuch as the award of costs upon the failure of the first action would have been a full compensation for tlie unjust vexation caused by the bringing of the action ; but, if it appears that in the previous action there was judgment of nonsuit, with an award of costs, and that the plaintiff could pay no costs, and that the defendant knew of the insolvency of the plaintiff at the time he induced the latter to bring the action, and had himself no interest in the subject-matter of the suit, there would appear to be a good ground of action (e). But it is a good defence to an action for maintenance that the defendant assisted the third person from charitable motives, even though he may have done so rashly and without proper enquiry into the case (ee). Infringement of rights — Maliciousli/ issuing execution. — No man can be sued for the exercise of his legal right to issue execution on a judgment, although it is averred that he acted maliciously, and without reasonable and probable cause (/). Nor can thj judgment creditor be rendered responsible in damages for issuing execution for more than is due upon the judgment, unless some actual damage can be shown to have been siistained by the plaintiff therefrom. " But it would not be creditable to our jurisprudence," observes Lord Campbell, *' if the debtor had no remedy by action, whore his goods have been taken in execution for a larger sum than remainel due upon the judgment, the judgment creditor knowing the sum for which execution is sued out to be excessive, and his motive being to oppress or injure his debtor" {g). If a defendant, from feelings of ill-will, and with a view to annoy and 31 injure the plaintiff, prays an extent to secure a debt due from the plaintiff to the crown, under the pretence that the debt is in danger of being lost to the crown, when he knows it not to bo in danger, or has no reasonable or probable cause for believing it to be in danger, he will be responsible in damages in an action for a mali- cious prosecuiion. Such a proceeding is calculated to affect the plaintiff's credit, and bring demands upon him, and be productive of injiuious and even ruinous consequences to him. In the action for the malicious prosecution, the law requires that the writ of extent should be traced to its close; and that may be done by {e) Cotterdl v. Jonca, 11 C. B. 728, 730 ; 21 L. J., C. P. 3. Atwoody. Monyer, Styles, 378. Waterer v. Fneman, Hob. 260. Savile v. Roberts, 1 Ld. Rayw. 378 ; 12 Mod. 208; I Salk. 13. Fcchell v. Watson, i'UL.kW. 6C1. {ee) Harris v. Britco, 17 Q. B. D. 504. (/) Roret V. Lewis, 5 D. & L. 373. Magnay v. Burt, 5 Q. B. 394. (g) Churchill v. Siagers, 3 El. & Bl. 938; 23 L. J., Q. B. 308. Jeningi v. Florence, 2 C. B., N. 8. 467 ; 26 L. J., C. P. 277. Wentworth v. BuUen, 9 B. & C. 849. Saxon v. CastU, 6 AJ. & E. 659. 5ECT. I.] THE WRONGFUL ACT. 33 showing it to be discharged by the court, though upon an arrange- ment, and by consent (//). "Whoever makes use of the process of the court for some private pui'pose of his own, not warranted by the exigency of the writ or the order of the court, is amenable to an action for damages for an abuse of the process of the coui-t. Thus, where the defendant having instituted legal proceedings against the plaintiff, and caused a writ to be issued against him, employed the officer charged with the execution of the process to do a specific thing v/liich he was not warranted by the writ to do, viz., to use it as a means of com- pelling the plaintiff to give up a ship's register, it was held that the defendant was responsible in damages to the plaintiff for causing him to be arrested and detained until he had given up the register, and for the injury ho had sustained in being deprived of the register which he had given up to obtain his release from custody. And, when the complaint is, that the process of the law has been abused and prostituted to an illegal purpose, it is perfectly immaterial whether or not it issued for a just cause of action, or whether the suit was legally terminated or not (/). Where the wrong ship is arrested owing to the mala fides of the plaintiff, or to such crassa neglige ntia as implies malice, the owners will be entitled to damages for the wrongful arrest (/.). Infringement of rights — Ilalieioi:^ prosecution by court-martial. — An action for a malicious prosecution will not lie at the suit of a subordinate officer against his commanding officer for maliciously, and without reasonable or probable cause, bringing iiim to a couH- raartial, as it is an oct done in the course of discipline, and imder the powers legally incident to h's situation in the public service (/). And, although an officer is arrested and kept in confinement for an intentional act of discourtesy to his superior officer, for several 32 days, and is not ultimately brought to a court-martial, no action lies, even though it is done maliciously and -without reasonable or prohn,bie cause, if the matter of complaint arises bet./een military men subject to the Articles of War, and is fairly cognisable before a military tribunal (wi). An action cannot be brought by a private soldier against his commanding officer lor a malicious discharge (»), or for reducing him on the field of battle from a sergeant to the ranks, although !) (h) Craig v. Hasell, 4 Q. B. 499. (•) Grainger v. Hill, 4 Bing. N. C. 212 ; 6 Sc. 580, Heywood v. CoUinge, 9 Ad. & E. 274. See Keighlu v. Bell, 4 F. & F. 763. {k) The Evangeliitma, 12 Moo. P. C. 352. The Strathnaver, 1 App. Cas. 58. (0 Johnstone v. Sutton, 1 T. R. 548. Sutton V. Johnstone, I Bro. P. C. 76. Flogd V. Barker, 12 Rep. 23. Dawkins V. Lord Rokeby, 4 F. fr F. 806. (w) Dawkins v. Lord Rokeby, 4 F. & F. 806. Dawkins v. Lord Paukt, L. R., 6 Q. B. 94 ; 39 L. J., Q. B. 63. («) Freer v. Marshall, 4 F. & F. 485. U 34 THE NATURE OF TORTS. [chap. I. the act is alleged to have been done maliciously and without any reasonable and probable cause (o). Infriuyement of rights — Contimdng injuries. — An injury may bo of a continuing nature, that is to say, it may be such that the damage arising therefrom is continuing, as where a building has been wrongfully erected on the plaintiff's land, where the damage continues as long as the building remains ; or the injury may be one in which the damages, when they accrue, accrue once for all, as in the case of an assault. A continuing obstruction to a watercourse and flow of water is a continuing injurv (/>). Iiifringcmeut of rights — Monei' ohfa ' hy force. — If one man has obtained money from another tiiroagh the medium of oppres- sion, imposition, extortion, or deceit, or by the commission of a trespass, such money is, in contemplation of law, not the money of tbe wrong-doer, but of the injured person, whose title to it cannot bo destroyed and annulled by the fraudulent and unjust disposses- sion {q). Thus, money may be recovered back which has been paid under the following circumstances : where a man, having a claim or lien to a certain amount on goods and securities in his possession, unla^vfully refuses to give them up without receiving more than he is strictly entitled to claim, or, having no lien at all upon them, wrongfully refuses to give them up without being paid for so doing, and the owner, in order to get the goods or securities, is obliged to satisfy the extortionate demand {r) \> here a railway company or carrier makes excessive charges for • conveyance of goods, and the consignor in order to procure iii' t. o carry the goods, or the consignee, in order to get posso^s^jn of the goods, pays the extortionate demand (s) ; where a married man, pretend- 33 ing to be single, marries a lady, and, under colour of such pre- tended marriage, gets possession of her estates and receives the rents {t) ; where a man claims and receives rents or money under a false or pretended authority (») ; or under the coercion of threatened legal proceedings {x) ; or wrongfully usurps the office of another, and receives the fees annexed thereto {y) ; wiiere a steward of a manor demands and receives an extravagant charge, as the condi- (o) Barnes v. Eeppcl, 2 Wila. 314. (p) IVhitehoHse v. FcUowcs, 10 C. B.. N. S. 765; 30 L. J., C. P. 305. See post, p. -56. (q) Neate v. Harding, 6 Exch. 349 ; 20 L. J., Ex. 250. Chowue v. liaijUs, 31 Beav. 351 ; 31 L. J., Ch. 757. (>•) Astleij V. licijnolds, 2 Str. 915. Shaw V. Woodcock, 9 D. & E. 889, 892. (s) Ashmole v. Wainwright, 2 Q. B. °37. Kent v. Great Western Bail. Co., i O. B. 715. Parker v. Bristol & Exeter Bail. Co., 6 Exch. 702 ; 30 L. J., Ex 442. Baxendale v. Great Western Bail. Co., 16 C. B., N. S. 137; 32 L. J., C. P. 226; 33 lb. 197. Tamvaco v. Simpson, 19 0. B., N. S. 453 ; 34 L. J., C. P. 268. Great Western Bail. Co. v. Sutton, L. R., 4 H. L. 220 ; 38 L. J., Ex. 177. U) Uasscr v. Wallis, Salk. 28. («) Bobson V. Eaton, 1 T. R. 62. Dupen V. Keeling, 4 C. & P. 102. {x\ TJmvin v. Lcaper, 1 M. & G. 752. (y) Howard v. Wood, 2 Lev. -245 ; 2 Jones, 127. Arris v. Stukeleij, 2 Mod. 263. HaV v. Swansea, 5 Q. B. 548. Boi'ter V. Bodsmrth, 6 T. R. C81. •I SECT. I.] THE WRONGFUL ACT. 35 tion of his producing deeds and court rolls in his custody, which the party paying the money co.dd not do without, and which tha steward ought to have produced on tender of a reasonable compen- sation (s) ; where a broker in possession of goods under a distress demands and receives unauthorized cliarges (a) ; where a distrainor demands and obtains an excessive sum to release an impounded animal (i) ; where a sheriff exacts a larger fee than the law allows for executing the Queen's Avrit (c), or obtains money under the pressure of an illegal arrest (d), or under a threat to sell goods seized under a Ji. fa. which he has no right to sell (e) ; where a justice of the pea';e exacts a fee from a publican as the condition of granting him a licence (/) ; where a toll-collector exacts an illegal or unauthorized toll (g) ; where an overseer of the poor levies money by seizing and selling goods upon a magistrate's conviction %vhich is afterwards quashed (//) ; where a revenue officer unlawfully seizes goods as forfeited, and unlawfully detains them, and takes money which he has no right to take as the condition of their release (/) ; where a nurse, upon the death of a person she attended, carried away his money {k) ; or where a creditor has received money as the condition of his signing a bankrupt's .ertificate (/), or as the price of the bankrupt's discharge from an arrest, having at the time notice of the bankruptcy (in). Such an actiou also lies against all persons who extort money for doing what they are by law bound to do without payment or reward («), or who receive, and have in their possession, and wrongfully detain, the money of 34 another ; " for," as it has been observed, " no man will venture to take, if he knows that he is liable to refund" (o). Statuton/ exemption from Uahilitif. — An action will not lie on behalf of a person who has sustained injury from the execution of powers and authorities giveu by an Act of Parliament, those powers being exercised with judgment and caution (/?). "If the thing done is within the statute, it is clear that no compensation can be afforded for any damage sustained thereby, except so far ,!•■» 9-1 [z) Spnj V. Ftgott, cited 2 Esp. 723. (a) nuts V. Street, 2 Moo. & P. 103. (A) Green v. Dtickett, 11 Q. B. D. 275 ; 52 L. .T., Q. B. 435. (e) Dew V. Parsons, 2 B. & Aid. 562. (rf) Tai/tie V. Chapman, -t Ad. & E. 364. liaroH de Mesiiit v. Bakin, L. R., 3 Q. B. 18 ; 37 L. J., Q. B. 42. (<•) Vatpij V. Manlcij, 1 C. B. 602. (/) Morgan v. Palmer, 2 B. & C. 729 ; 4 D. & R. 283. ((?) Lewis V. JTamniond, 2 B. & A. 206. Waterhouse v. Keen, 4 B. & C. 200 ; 6 D. & R. 257. {/») Feltham v. Terry, Bull. N. P. 131 a, cited 1 T. R. 387 ; 1 Cowp. 419. (•) Irving v. Wilson, 4 T. R. 485. D Atlee V. Backhouse, 3 M. & W. 645. {k) Thomas \. 7r/»i/>, Bull. N. P. 130 a. (l) Smith V. liromleij, 2 Doug. 697, note. Sievcrs v. Boswell, 3 M. & Q-. 6'2i ; 4 Sc. N. R. 173. (ill) Follett V. Hoppe, 6 C. B. 220 ; 17 L. J., C. P. 76. {n) Parker v. Great Western Rail. Co., 7 M. & G. 253 ; 7 So. N. R. 835, 874. (o) Jones V. Jiarkletj, 2 Doug. 690. \p) Ld. Truro, L. .$• N. W. Rail. Co. V. Bradley, 3 Mac. & G. 341 ; 6 Rail. Cas. 551. Caledonian Rail. Co.v.Ogilvy, 2 Macq. Sc. App. 246. Boulton v. Crow' ther, 2 B. & C. 706. Craeknell v. Mayor of Thetford, L. R., 4 C. P. 629 ; 38 L. J., C. P. 353. 2 36 THE NATORE OP TORTS. [chap. I. I » as the statute itself has provided it; and this is clear on the legal presumption that the act creating the damage, being within the statute, must bo a lawful act " (q). If no compensation is given, that affords a reason, though not a conclusivo one, for thinking that the intention of the legislature was, not that the thing should be done at all events, but only that it should be done, if it could be done without injury to others (r). But if the statutory powers are exceeded, or are not strictly pursued (s), or the things authorized to be done are carelessly or negligently done, an action is maintainable for damages. " Powers given by statute," observes Watson, B., "are not to bo used to the peril of the lives or limbs of the Queen's subjects. They are to be exercised reasonably, and with due care, so as not by negligence to cause damage to others" (i). And, if by a reasonable exercise of the powers, either given by statute to the promoters, or which they have at common law, the damage could be prevented, it is negligence within this rule not to make such reasonable exercise of their powers (u). Where a canal company was authorized by a statute to inter- sect highways with their canal, carrying the highway over the canal by means of bridges, it was held that they were bound to erect proper and suitable bridges, sufficient for all the require- ments of an increasing traffic, and were bound to put up proper lights, fences, and guards for the protection of the public ; and that, if they erected a swing-bridge, they must use all due and proper precautions for the protection of the public while the bridge was open. And, if such a bridge is left open by boatmen using the canal, and a passenger traversing the highway falls into 35 the canal and is injured, the canal company will be responsible for the injury in an action for negligence {x). Where a municipal corporation was authoiized by statute to lay down gas-pipes, and an action waa brought against them for an injury to the plaintiff's eye, by reason of the negligence of a servant of the corporation, who had been employed by them to chip a gas-pipe, and the corporation pleaded that the injury was done in the execution of their Local Improvement Act, and without any neglect or mismanagement of the defendants otherwise than by their workman, and that the workman employed by them was (?) Duncan v. Findlater, 6 CI. & F. 908. (>•) Hammersmith Rail. Co. v. Brand, L. R., 4 H. L. C. 171. Metropolitan Atylum District v. Hill, 6 App. Cas. 193 ; 60 L. J., Q. B. 353. As to statu- tory compensation, see post, ch. 13. (s)Brou)ilow V. Metropolitan Board, 16 C. B., N. S. 646 ; 33 L. J., C. P. 233. lieff. V. Darlington Local Board, 6 B. & S. 515 ; 6 lb. 662 ; 33 L. J., Q. B. 305; 36 /*. 45. (<) Manley v. St. Helen's Canal ^ Rail. Co., 2 H. & N. 840 ; 27 L. J., Ex. 164. («) Geddis v. Proprietors of Bann Re- servoir, 3 App. Cas. 430. {z) Manley v. St. Helenas Canal 4- Rail. Co., 2 H. & N. 840 ; 27 L. J., Ex. 164. •■t,»-r'ri--j-,~r'Y':- SECT. I.] THE WRONGFUL ACT. 37 well skilled and qualifiod, it was held that the plea was no answer to the action (y). Where an Act of Parliament imposed upon a waterworks company the duty of repairing, renewing, and keeping certain fire-plugs in proper order, it was held that it v.as no answer to an action for damages resulting from a breach of this duty, to show that the fire-plugs were the property of another public body which was required to pay the costs and charges of keeping them in repair (s). If persons authorized by statute temporarily to close a public highway have by mistake stopped up the wrong thoroughfare, or if they have continued an obstruction in a public thoroughfare beyond the time authorized by statute, or have obstructed it in an unreasonable manner, and an adjoining householder or shopkeeper sustains a particular injury beyond what is sustained by the public at large, for instance, if ho loses his customers, or his trade is in- jured by the unauthorized obstruction, there is a remedy by action for damages (a). Where a railway company were authorized to make an embank- ment for carrying their railway across a valley, through which the waste waters from the adjoining land flowed away, and the em- bankment was made without proper openings and culverts for the passage of the waste water, by reason whereof the flood water was penned back after heavy rains, and forced upon the plaintiff's land, and injured his crops, it was held that the plaintiff was entitled to an action for damages. " It is contended by the defendants," observes Patteson, J., "that they have constructed their railway according to the provisions of their Act of Parliament, and that they are not liable for any consequences which may follow to the damage of the plaintifi ; and the question is, whether the company 36 are protected by their Act ? Here the company might, by exe- cuting their works with proper caution, have avoided the injury which the plaintiff has sustained ; and we think that the want of such caution is sufficient to sustain the action "(i). And this is so, even though the injury might not have happened but for the fault of others in not keeping an outfall for the water of the dimensions which they, and not the defendants, were bound to keep ii(c). Where a trading company was incorporated by statute (//) Scott V. Jfiii/or, ^e. of Manchester, 2 H. & N. 201 ; 20 L. J., Ex. 100. (:) Bayteij v. Wolrerhampton M'atei- vorJ;s Co., 6 H. & N. 211; 30 L. J., Ex. 7. (") ini/ces V. lIiDigerfurd Mtirlict Co., 2 Biug. N. C. 281 ; 2 Sc. 402, 103. See lis to this case, Iticket v. Metropulitan Hail. Co., L. R., 2H. L. 188 ; 3C L. J., Q. B. 205. Fritz v. Hobion, 14 Ch. D. 542 ; 49L. J.,Ch. 321. (i) Laicrencc v. Great Xurthern Rail. Co., IC Q. B. 653, 654 ; 20 L. J., Q. B. 293. liroadhent v. Imperial Gas Co., 26 L. J., Cli. 2^1. ISlagravc v. Bristol ll'aterworks Co., 1 II. & N. 369. Sutton V. Clarke, G Taunt. 29. Grocers' Co. v. Domu; 3 Biiig. N. 0. 34 ; 3 So. 357. Urine v. Great Western Rail. (7o., 2 B. & S. 402 ; 31 L. J., Q. B. 101. (c) Harrison v. Great Northern Rail, Co., 3 H. & C. 231 ; 33 L. J., Ex. 260. ■:■'>] ■7V I 38 THE NATURE OF TORTS. [chap. I. ill for tho purpose of manufacturing gas, and was authorized to make gas ! ) light tho streets of a town, it was held that tho statute did not authorize the company to make gas so as to create a nuisance, and therefore that they wore liable, notwithstanding the statute, to an action for damages for making gas so as to create a nuisance (d). 8(afii(on/ (wcmptiom—Nnimnccs from raihivf/s. — Where the legislature autliorizcd a railway company to lay down a railway alongside a public highway, it was held that tlie legislature must be presumed to liave contemplated tho possibility that tho railway would bo a nuisance to persons using tho highroad, and that such persons must submit to the inconvenience necessarily resulting from the working of tlie railway (c). And, where a railway com- pany was authorized to luy down a railway across a public thorough- fare, and have gates across the highroad to prevent persons from passing along tho road at tho time when it would be dangerous by reason of trains being near at hand, it was held that a person, who had been delayed and impeded in his journey along the highroad by reason of the necessary closing of the gates, had no right of action against the railway company for the injury he had sustained. Neither has tho owner of an estate any right of action against a railway company for laying down o railway across a turnpike road close to the entrance of his est. under tho powers of an Act of Parliament, by means whereof he is impeded and hindered in going from and returning to his house, and his horses are frightened and become ungovernable from the noise of the trains (/). And where a railway company were by their Act authorized to carry cattle, and to provide places for keeping them, and they used land ad- joining one of their stations as a cattle yard, and the noise was a nuisance which, but for the Act, would have been actionable, it was held that the adjoining owners were not entitled, in the absence of 37 negligence, to an inj unction (g) . But these cases only decide that where the statute expressly contemplates the creation of a nuisance no action will lie. And it does not follow that, because a railway company is authorized to carry its railway across or alongside a public carriage road, it is thereby authorized to conduct its traffic BO as to create a nuisance. If the engine-driver unnecessarily puts on the whistle, or unnecessarily lets off steam, or discharges mud or water when crossing or running alongside a public carriage- road, and by so doing frightens horses lawfully traversing the (rf) Broadbent v. Imperial Gas Light Co., 26 L. J., Ch. 280. ((■) It. V. iVrtsr, 4 B. & Ad. 42. This is tho rule in this country. For a full discussion of this topic and thei doctrine held by our courts, see Wood on Nui- sances, Chap. XXIII. (/) Caledonian Hail. Co. v. Offilvi/, 2 Macq. 8c. App. 229. {g) L. B. ^ S. C. Rail. Co. v. Truman, 11 App. Cas. 45 ; 65 L. J., Ch. 354. SECT. I.] THE WRONGFUL ACT. 30 highway, and causes them to upset a carriago, the railway company will be responsible for the damage done (/c). So, if the property of the plaintiff adjoining a railway has been set on fire and destroyed by a spark from a locomotive engine and furnacf , which the rail- way company is authorized by statute to use on their railway, tho railway company is pn'md facie responsible for the damage done ; for the Acts of Parliament authorizing railway companies to run locomotive steam furnaces through tho country, do not authorize them to scatter sparks or lighted coals upon the adjoining land, to the injury of the proprietors thereof, if by due care their engines can be prevented from so doing (/). And in the case of traction engines on highwavs, under the Locomotive Acts, the owners are not relieved in any way from their common law liability (/.•) . Sfafnfoi'i/ exempt ious — Nuimnces from canals. — It has been held tliat, if a canal company has boon authorized by statute to mako and use a canal, and tho canal is made in the usual manner, and water leaks OTit and comes upon the plaintiff's premises, without any negligence or breach of duty on the part of the canal company, the company will not be responsible in damages for the injury (/) ; but every canal company is bound to maintain and keep its canal in good order, and manage it so that it may not become a source of injury to the adjoining landowners ; and, if the water can be pre- vented from escaping from the canal, it is the duty of the company to adopt the necessary measures for the purpose {m). Where a canal company Avere empowered to take the water of a certain brook, which was then pure, but subsequently became polluted by drains, &c., and the company b" using and penning back the water of the 38 brook in the canal after it had become so polluted created a nui- sance, it was held that they were responsible («). I (/») Manchester South Junction Itail. Co. V. Fiillarton, 14 C. B., N. S. 54. (i) Frcmantle v. L. S; N. ir. £.:i/. Co., 10 C. B., N. S. 89 ; 31 L. J., C. P. 12. Jbimmock v. North IStoJI'ordshirc Itnll. Co., 4 F. & F. 1058. Vdiighan v. Taff Vale Rail. Co., 5 11. & N. 085. L. li. ^ S. C. Hail. Co. V. Tinman, supra. (k) PuurU V. Fall, 5 Q. B. D. 597. (/) ll'hilchoasc v. Jiirminaham Canal Co., 27 L. J., Ex. 25. {in) Lawrence v. Great Northern Hail. Co., IG Q. B. 063 ; 20 L. J., Q. B. 293. Jiaf/nall v. L. i?- .V. W. Rail. Co., 1 H. & C. 544 ; 31 L. J., Ex. 480. liarber v. Notlini/han. '• Grantham Hail. Co., 15 C. B., N. S. 726 ; 33 L. J., 0. V. 193. («) Reg. V. Bradford Navigation Co., 6 B. & S. 031; 34 L. J., Q. B. 191. Geddia v. Proprietors of liann Reservoir, 3 App. Gas. 430. 40 THE NATURE OF TOUTS. [CIIAP. I. SECTION II. ?: ■J' fb THE DAMAGE. Wmiij uithout (lamagc. — There may bo a wrong done to another, hut, if it lias not caused what the law terms actual legal damage to the plaintiff, there is no tort in respect of which an action is maintainable. Thus, in cases of slander by word of mouth, whore the words do not convey any imputation of an indictable offence, there is no cause of action in respect of them, unless the injured party has sustained some pecuniary loss, or has been deprived of some gainful occupation and employment, or has been injiu-ed in hi& trade, occupation, or profession, or means of livelihood, or has lost a marriage by reason of the slander (o). An imputation, for example, by words, however gross, and on an occasion however public, on the chastity of a modest matron or a pure virgin is not actionable, without proof that it has actually produced special, temporal damage to her {p) ; neither is it action- able to call a man a swindler or a cheat, a blackguard, or a rogue, or to say that he is a low fellow, a disgrace to the town, and unfit for decent society, unless it can be proved that actual legal damage has resulted to the plaintiff from the slander {q). To be actionable, damage must be the necessary, probable, or intended result of some unlawful act, or of some act, lawful per se, but done negli- gently or maliciously. Legal chmage. — It is not necessary to show thai actual pecu- niary damage has been sustained in order to establish that con- junction of damage and wrong which is necessary to create a tort ; for a party may be legally damnified, although he has sustained no pecuniary loss. "The damage," observes Lord Holt, "is not merely pecuniary ; for, if a man gets a cuff on the ear from 39 another, though it cost him nothing, no, not so much as a little diachylon, yet he shall have his action, for it is a personal damage." So, a man shall have an action against another for riding over his (o) Post, p. 170. (p) Ld. VVensleydale, Lynch: . Knight, 9 H. L. 0. 577. Wilby v. Eh. ., 8 C. B. 142. Th \o88 of the hospitality oi friends is, however, sufficient special damage to maintain an action. Davies v. Solomon, L. R., 7 Q. B. 112 ; 41 L. J., Q. B. 10. Whether the loss of the consortium of the husband is sufficient is doubtful. lb. But a mere risk of temporal loss is not sufficient special damage to support an action for slander. Cliambcrlain v. lioyd, 11 Q. B. D, 407 ; 52 L. J., Q. B. 277. (?) Post, p. 170. 7:^'t?r,«rjFr«j^,- ; "'Tp^T 9ECT. II.] THE DAMAGE. 41 ground, though it do him no pecuniary injury ; for it is an invasion of his property, and the other had no right to come there (r) ; and, if the trespasser wilfully perseveres in trespassing after being warned off, exemplary damages will be recovered (s). Every unauthorized interference by one man -with the goods and chattels and personal property of another constitutes a tort, and gives rise to a cause of action, altliough no pecuniary damage may be sustained {t). If a man, without having any legal autho- rity to excuse or justify the act, writes any remarks or observations upon a cabdiiver's licence, or upon another man's certificate of character or good conduct, he is guilty of a tort, and is responsible in damages, although no pecuniary loss has been incurred («)• Every injury to a right which would be evidence in future in favour of a wrongdoer imports a damage, though it does not cost the party one farthing (.r) ; for, wherever the plaintiff establishes some legal right or title in himself which has been invaded, weak- ened, or destroyed by the unlawful act of the defendant, there is a wrong and damage in law resulting therefrom, in respect of which an action is maintainable, though no actual pecuniary loss can be proved (y). "Whenever," observes Parke, B., " an act done would be evidence against the existence of a right, that is an injury to the right, and the party injured may bring an action in respect of it "(c). Where a man is entitled to have a stream of water flowing through his land, he may maintain an action for the divdrsion of the water, though he has not used, and does not want to use, the water (a). So, where a tenant makes material alterations in pro- perty demised to him, by opening new doors, putting up new buildings, taking down partitions, or changing the form and appearance of a house without the consent of the landlord, he is responsible in damages for infringing upon the proprietary rights of the latter, although the premises maybe improved and rendered more valuable by the alterations (i). {>■) Holt, C. J., AshhjY. White, 2 Ld. Raym. 955. fiears v. Ii/oiis, 2 Stark. 318. I'ost, p. 360. («) Merest v. Harvey, 5 Taunt. 441. (t) I'ost, p. 509. Tho rule is that, •where a right is invaded, even though there is no actual damage, or even tliough a positive benefit therefrom, yet damages are recoverable to protect *,ho right. I'raiieia v. Schoelkopf, 63 N. Y. 152 ; Coni V. Silcox, Ind. 39 ; Paul v. Sttison, 22 Vt. 231 ; If'ebb v. Portlm.d Maim- facturing Co., 3 Sum. (U. S.) 139. (tt) liogers v. Macnamara, 14 C. B. 37 ; 23 L. J., C. P. 1. {x) Bonmii v. Backhouse, El. Bl. & El. 657 ; 28 L. J., Q. B. 378. Holt, C. J., Ashbi/ V. JJ'/tite, 2 Ld. Raym. 954. (//) Emhey v. Ouen, 6 Exch. 353 ; 20 L. J., Ex. 212. Bower v. Hill, 1 Bing. N. C. 649 ; 1 So. 626. Boehdale Canal Co. V. King, 14 Q. B. 135. Cooper v. Crabtrec, 20 Ch. D. 689; 61 L. J., Ch. 189. If'ebb v. Portland Manufacturing Co., 3 Sum. (U. S.) 197. Post, p. 388. {z) Nicklin V. Williams, 10 Exch. 227. But see this case commented upon in Darlcy Main Coll. Co. v. Mitchell, U App. Cas. 127. (n) Embreij v. Owen, 6 Exch. 353 ; 2C L. J., Ex. 212. Post, p. 274. (A) Cole V. Green, 1 Lev. 309. II 42 THE NATUKE OP TORTS. [chap. I. 40 So wlioro nn inventor or mnnufaoturor adopts a particular trade-mark, and the defendant imitates it and uses it for the pur- poso of palming off his own floods as the goods of the plaintiff, tho plaintiff is entitled to nominal damages at all events, as his right lias h-cn invaded, although no specific damage is proved (r). And there is nothing to prevent tho jury from giving more than nominal damages {(/). Jifiiinfriicss of (fnitiafje. — The rule of our law is that tho imme- diate cause, tho ((dim proximu, of tho damage, and not tho romoto cause. Is to he looked at; for, as Lord Bacon says: "It wore infinite for the law to judge tho causes of causes and their impul- sions on2 of another ; therefore it contontoth itself with tho immediate cause, and judgoth of acts by that without looking to any further degree " (<>). The general rulo of law is, that whoever does an illegal or wrongful act is answerable for all tho conse- quences that ensue in tho ordinary and natural course of events, though those consequences be immediately and directly brought about by the intervening agency of others, provided tho inter- vening agents were set in motion by tho primary wrong-doer, or provided their acts causing the damage were tho necessary or legal and natural consequence of tho original wrongful act. If tho wrong and tlie legal damage are not known by common experience to be usually in sequence, and tho damage does not, according to tlio ordinary course of events, follow from tho wrong, the wrong and the damnge are not sufficiently conjoined, or "concatenated as cause and effect to support an action " (/), unless it is shown that the wrong-doer knew, or had reasonable means of knowing, that consequences not usually resulting from his act were, by reason of some existing cause, likely to intervene so as to cause damage to another (//). Where there is no reason to expect it, and no knowledge in tho person doing the wrongful act, that such a state of things exists as to render the damage probable, if injury does result it is generally considered that the wrongful act is not the proximate cause of the injury, so as to render the wrong-doer liable to an action. "I entertain," observes Pollock, C.B., " considerable doubt whether a person who has been guilty of negligence is responsible for all the consequences which may under any circumstances arise, and in respect of mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated. I am inclined to (c) Blojield v. Payne, 4 B. & Ad. 410. Braham v. Beachim, 7 Ch. D. 848 ; 47 L. J., Ch. 348. (rf) Rodger* v. Kowill, 6 C. B. 125. Post, p. 676. The rules stated in this sec- tion are generally accepted by our courts. {c) Bac. Max. Reg. 1. (/) Ld. Campbell, Gerhard v. Bates, 2 El. & Bl. 490. Francis v. Schoelkopf, 63N. T. 152. {g) Sharp v. Powell, L. R., 7 0. P. 253 ; 41 L. J., C. P. 95. SECT. II.] THE DAMAGE. 4a 41 conBidor tlio rulo of law to bo this, thnt a powon is oxpoctod to anticipate and guard against all roasonablo consequonoes, but that ho is not by tlio law of England oxpoctod to ontioipato and guard ogainst that which no reasonable man woidd expect to occur " (//). A person who has, without malico or intention, but through negligence, inflicted a wrong upon the property of another, will in general not bo liable for any consequential daraoge which tho plaintiff might have averted by tho exercise of ordinary skill ond courage. Thus, if aitcr a colllsiun tho vessel injured is abandoned, when by tho exorcise of ordinary skill and courogo she might have been saved, tho owner of tho vessel which did tho damage will not bo responsible for tho total loss, but only for tho probable cost of restoring the injured vossol to tho condition in which sho was previous to tho collision (/). If the natural result of a wrongful act committed by a defen- dant has been to plungo tho plaintiff into a law suit, and thereby to cause him to incur costs and expenses, whatever may be the event of tho suit, thoro is that conjunction of wrong and damage which will give tho plaintiff a good cause of action (/.•). If a sea- man, or a passenger on board ship, engages in acts of smuggling, and tliereby causes tho vessel to be condemned and forfeited, the shipowner is entitled to recover tho value of tlio vossol from the wrong-doer who has caused he loss ; and it is no answer to the action to show that the plaintiff's servants on board participated in tho illegal transaction (/). So, Avhero by the negligence of the servants of a railway company, the plaintiff's cattle, as they were crossing tho line on tho level, were frightened and scattered, so that tho plaintiff's di'overs lost ccntrol over them, and some of them ran into danger and were killed before they could be got back under control, it was held that their death was a natural consequence of tho negligence which caused the drovers to lose control over them {in). And Avhero the defendant's vessel, o'wing to the negli- gence of his servants, struck on a sand-bank, and becoming from that cause unmanageable, was driven by the wind and tide upon a sea-wall of the plaintiff, which it damaged, it was held that the defendant was liable for the damage so caused («). So, too, where a brig, by the negligence of those on board her, came into collision and damaged a bark, and, tho wind increasing in violence, the bark was driven ashore tho following day, and some of her crew I I (A) Greenland v. Chaplin, 5 Exch. 248. Jlank of Ireland v. Trustees of Evans's Charities, 5H. L. C. 411. (i) The Thuringia, 41 L. J., Adm. 44. And see ante, p. 23, as to contributory negligence. (k) Dixon v. Fawcus, 3 El. & El. 537 ; 30L.J.,Q. B. 137. [l) Blewitt V. Hill, 13 East, 14. (hi) Sncesbij v. Lanes, ^ Yorks. Rail. Co., L. R., 9 Q. B. 263 ; 1 Q. B. D. 42 ; 43 L. J., Q. B. 69. («) Bailiffs of Romneij Marsh V. Trinity House, L. R., 5 Ex. 204; 7 Ex.347; 41 L. J., Ex. 106. 44 THK NAXrRK OF TORTS. [CIIAP. I. mi \\ 1 H 42 woro drowned, it wns held tho loss of life was oocasionod by the colliaion («). Ho, if, hy th(» misconduct of A., B. is placed in such a position qs to ohligo him oillior to remain in a jioHition of danger or to incur danger in attempting to oscapo from tiiat poHition, and IJ. adopts tho latter ultornativo, and is injured in endeavouring to escape, A. will bo liable- (/>) ; but, if B. is only suffering some inconvenience, and to avoid that ho voluntarily nins into danger, aTid injury cnsuos, tliat cannot bo said to bo tho result of A.'s misconduct (y). There is, as might not imnaturally bo expected, considerable difficulty in applying tho foregoing principles, where the act com- plained of would not have occas* ed any injury but for tho intormodiato act of some tliird p In Sroft v. Slivphcnl (»•), the defendant throw a lighted stpno into a markot-houso Avhoro several persons were assembled. It foil upon a standing, the owner of which, in self-defence, took it up and throw it across the max'ket-house. It (hen fell upon another standing, tho owner of which, in self-defence, took it up and threw it to another part of tho market-house; and in its course it struck tho plaintiff, exploded, and put out his eye. The defendant was held liable, although, without tho intervention of a third person, the squib woidd not have injured tho plaintiff. ** All the injury," observes De Grey, 0. J., " was dono by tho first act of the defendant. That and all tho intervening acts of throwing must be considered as one single a(!t. It is tho same as if a cracker had been flung which had bounded and rebounded again and again before it had stiiick out the plaintiff's eye" («). In Di,ron v. Bvll {t), the defendant, having left a loaded gun with another man, sent a young girl to fetch it, with a message to the man in whose custody it was, to remove the priming, which the latter, as he thought, did, but, as it turned out, did not do effectually. The girl brought it home, and thinking that the priming having been removed tho gim could not go off, pointed it at tho plaintiff's son, a child, and pulled the trigger. Tho gim went off and injured the child. Tho defendant was held liable. " As by this want of care," said Lord Ellen- borough, that is, by leaving the gun without drawing the charge or seeing that the priming had been properly removed, " the instrument R., 3 493. (o) The George and Richard, L. A. & E. 466. {p) Jones V. Bot/ee, 1 Stark. Clayards v. Dethick;' 12 Q. B. 439. (7) Adams v. Lanes. S; Yorks. Hail. Co., L. R., 4 C. P. 739 ; 38 L. J., C. P. 277. See remarks of Lord Bramwell, SmiUi on Negligence, Appendix B. (r) 3 WUs. 403 ; 2 "W. Bl. 892. («) So, in an American case, where the defendant, having had a quarrel with a hoy in the street, took up a pickaxe, and pursued the hoy, and the boy ran for safety into ;i wine-shop, and upset a cask of wme, it was held that tho defendant, the pursuer of tho boy, was responsible in dumagcs for the loss of the wine. Vanderburgh v. Truax, 4 Denio, U. S. R. 464. (0 5 M. & S. 198. II I SECT. II.] THE DAMAGE. 46 43 was left in a stato oapaUo of doing mischief, tho law will hold tho dofondiint rtt:'i>i>n8ll)I<>." Tn I//i(/(jr v. (ioodirin (»), the defendant's oart and horso woro loft standing in tho Htroct without anyone to attend to thoni. A person passing hy whipped tho horse, which caused it to hack tho cart against tho plaintiff's window. It was urged that tlio man who wliipped the horse, and not tho defen- dant, was liahle. It was also contended that tho had manage- ment of the plaintiff's shopman had contributed to tho accident. But Tindal, (). J., ruled that, oven if ihis wore believed, it would not avail as a defence. " If," ho says, " a man chooses to leave a cart I anding in tlie street, he must take tho risk of any mis- chief ;hat may be done." In Lynch v. Niirdin {x), Lord Denman observes, " if I am guilty of nogligonco in leaving anything dan- gerous, wliero I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury should be so brought about, I presume that tho sufferer might have redress by action against both or either of tho two, but unquestionably against the first," And then, by way of illustration, the Chief Justice puts the case of a gamekeeper leaving a loaded gun against the wall of a play-ground where school-boys were at play, and one of the boys in play letting it off and wounding another. '* I think it will not be doubted," says Lord Denman, " that the gamekeeper must answer in damages to the wounded party." In Danieh v. Potter (i/), the defendants had a cellar opening to the street. The flap of the cellar had been set back while tho defendant's men woro lowering casks into it, as the plain- tiff contended, without proper caro hav."-ig been taken to secure it. The flap fell and injured the plaintiff. The defendant maintained that the flap had been properly fastened, but also set up as a defence that its fall had been caused by some children playing with it. But the only question left to the jury by Tinda], C J., was whether the defendant's men had used reasonable care to secure the flap. His direction implies that in that case only would the intervention of a third party causing the injury be a defence. In Abbot v. Macfie (c), the defendants had a cellar opening to the street. Their men had taken up the flap of the cellar for the pur- pose of lowering casks into it, and, having reared it against the wall nearly upright, with its lower face, on which there were cross-bars, towards tho street, had gone away. A child five years old got upon the cross-bars of the flap, and in jumping off them brought down the flap on himself and another child, the plaintiff, 80 OS to injure both of them. It was held that the plaintiff ■'I 11' (tt) 5 C. & P. 192, {x) 1 Q. B. 29. (y) 4 C. & P. 262. («) 2 H. & C. 744 ; 33 L. J. Ex. 177. 46 THE NATURE OF TORTS. [chap. I. 44 could recover, provided he had not been playing with the other child so as to ho a joint nctor with him. In IliU v. Th New Jiivcr Company {a), the defendant created a nuisance in a public highway by allowing a stream of water to spout up, open and unfenoed, in the road. The plaintiff's liorses passing along the road with his carriage, took fright at the water thus spouting up, and swerved to the other side of the road. It so happened that there was in the road an open ditch or cutting, \/hich had been made by contractors, who were constructing a sewer, and which had been loft unfenced and unguarded, which it ought not to have been. Into this ditch or cutting, owing to its being un- fenced, the horses fell and injured themselves and the carriage. It was contended that the remedy, if any, was against the eon- tractors ; but it was held that the plaintiff was entitled to recover against the company. In Col/ins v. T/te Middle Level Commis- sioners ^j), the defendants were bound under an Act of Parliament to constinict a cut with proper walls, gates, and sluices, to keep out the waters of a tidal river, and also a culvert under the cut, to cany off the drainage of the lands lying east of the cut, and to keep the same open at all times. In consequence of the defective construc- tion of the gates and sluices, iLo waters of the r?ver flowed into the cut, and, bursting its western bank, flooded ihe adjoining lands. The plaintiff and other proprietors on the eastern side closed the culvert, and so protected their lands ; but the proprietors on the western side, to lessen the evil to themselves, re-opened the culvert, and so increased the overflow on the plaintiff's land, and caused injury to it. The defendants sought to ascribe the injury to the act of the western proprietors in removing the ob?tiuction which those on the other side had placed at the culvert. But it was; held that the negligence of the defendants was the substantial cause of the mischief. "The defendants," says M. Smith, J., "cannot excuse themselves from the natural consequences of their negli- gence by reason of the act, whether rightful or wrongful, of those who removed the obstruction placed in the culvert under the cir- cumstances found in this case." " The primary and substantial cause of the injmy," says Brett, J., " was the negligence of the defendants ; and it is not competent to them to say that they are absolved from the consequences of their wrongful act, by what some one else did." In Ilarrmn v. The Great Northern Rail. Co. (c), the defendants were bound under an Act of Parliament to maintain a delph or drain with banks for carrying off water for the protection of the adjoining lands. At the same time certain (a) 9 B. & S. 303. (A) L.R.,4 0.P.279;38L.J.,C.P. 286. (e) 3 H. & C. 231 ; 33 L. J., Ex. 260. SECT. II.] THE DAMAGE. 47 46 commissioners, appointed under an Act of Parliament, were bound to maintain the navigation of the river Witliam, with which the delph communicated. There having been an extraordinary fall of rain, the water in the delph rose nearly to the height of its banks, when one of them gave way, and caused tho damage of which the plaintiff complained. It was found that tho bank of tho delph was not in a proper condition ; but it was also found, and it was on this that the defendants relied as a defence, that the breaking of the bank had been caused by the water in it having been penned back, owing to the neglect of the commissioners to maintain in a proper state certain works which it was their duty to keep up under their Act. Nevertheless the defendants were held liable. In Clark v. Chambers {d), the defendant was in the occupation of certain pre- mises abutting on a private road, consisting of a carriage and foot- way, which premises he used for the purpose of athletic sports, and had erected a barrier across the road to prevent persons diiving vehicles up to the fence surrounding his premises, and overlooking the sports. In the middle of this barrier was a gap, which was usually open for the passage of vehicles, but which, when the sports were going on, was closed by means of a pole let down across it. It was admitted that the defendant had no legal right to erect this barrier. Some person, without the defendant's authority, removed a part of the barrier armed with spikes from the carriage-way, where the defendant had placed it, and put it in an upright posi- tion across the footpath. The plaintiff, on a dark night, was law- fully passing along the road, when his eye came in contact with one of the spikes, and was injured. It was held that the defendant, having unlawfully placed a dangerous instrument in the road, was liable (e). On the other hand, in Sharp v. Pouell (/), the defendant had, contrary to the provisions of the Police Act {(/), washed a van in the street, and suffered the water used for the purpose to flow down a gutter towards a sewer at some little distance. The weather being frosty, a grating, through wliich water flowing down the gutter passed into the sewer, had become frozen over, in consequence of which the water sent down by the defendant, instead of passing into the sewer, spread over the street and became frozen, rendering the street slippery. The plaintilBE's horse coming along fell in con- sequence, and was injured. It was held that, as there was nothing to show that the defendant was aware of the obstruction of the (d) 3 Q. B. D. 327 ; 47 L. J., Q. B. 427. (e) See particularly the judgment of Cockburn, 0. J., in this case, from which the above uud the following paragraphs are taken. (/) L. R., 7 C. P. 253; 41 L. J,, C. P. 95. (g) 2&3 Vict. c. 47, s. 54. m 48 THE NATURE OF TORTS. [chap. I. 46 gratin g, and as the stoppage of the water was not the necessary or probable consequence of the defendant's act, lie was not responsible for what had happened. So, where the manager of a theatre brought an action against the defendant for a libel on an opera- singer, who had been engaged by him to sing at his theatre, and who had been deterred from singing by reason of the publication of the libel, whereby the plaintiff lost the benefit of her services, it was held that the damage was too remote, and was not recoverable by the plaintiff ; for the opera- singer wos deterred from singing, not directly in consequence of anything done by the defendant, but in consequence of her fear that what he did might induce somebody else to assault and ill-treat her (/<). If the wrong would not have been followed by the damage if other circumstances had not intervened, for which circumstances the defendant is not responsible, the damage is not the proximate result of the wrong, and is not sufficiently " conontenated " there- with (/). Thus, in actions for slander, Avhere a defendant is proved to have uttered slanderous words in respect of the plaintiff, not imputing to him any indictable offence, and creating a cause of action only in case the utterance of the slander has caused actual legal damage to the plaintiff, and no such damage has accrued to the plaintiff directly from the utterance of the words, and they would have failed to produce any injurious consequences to the plaintiff if they had not been repeated by another person, the injury resulting from the intervention of that other person cannot bo visited upon the defendant (/.). (A) Ashlei/ V. llarrhon, 1 Esp. 49. Haddon i. Lott, 15 C. B. 411 ; 24 L. J., C. P. 49. (0 Jfocy V. FMoti, 11 C. B., N. S. 146; 31 L. J., C. P. 105. ik) Post, p. 179. :^l 49 47 CHAPTER II. THE JUSTIFICATION OF TORTS. SECTION I. DEFENCE OP PERSON OR PROPERTY OR REPUTATION. An assault committed ia self-defence is justifiable (n) if the assault by the plaintiff is commensurate with that of the defendant ; but it is not every trifling assiult which will excuse the defendant (b). And to justify an assault the provocation must have been imme- diate (c). So, also, an assault in defeuoe of house or property is sometimes justifiable («'), and a man may justify turning another out of his house if he will not go peaceably (c). And if another comes forcibly to take my goods I may resist him (/). But no more force must be used than is necessary to overcome resistance (utation of another, whether by word or by writing, by (I) 2 Roll. Abr. 565. li. v. Pagham Commissionera, 8 B. & C. 360; see Whalley V. Lane. ^ York. Bail. Co., post, p. 369. (m) Goodwin v. Chcvcky, 4 H. & N. 631 ; 28 L. J., Ex. 298. ^>0 See post, p. 396. (o) Winterbitrn v. Brooks, 2 C. & K. 16. Fenn v. Ward, 2 C. M. & R. 338. Fitzgerald v. Northcotc, 4 F. & F. 656. {p) Lamb v. Burnett, 1 Cr. & J. 295. Abrfw V. Johnson, 16 Q. B. 218. (?) Burton v. Henson, 10 M. & W. 105. Worth V. Tcrrington, 13 M. & W. 781. (r) Sunbolfv. AJford, 3 M. & W. 248. m ^eapost, ch. 8, sect. 3, p. 626. (0 Bateman v. Bluck, 18 Q. B. 876 ; 21 L. J., Q. B. 406. Dimes v. Fctleij, 15 Q. B. 283. Lavies v. Mann, 10 M. & W. 646. (m) Eaitem Counties Sail. Co, v. Dor- ling, 5 C. B., N. S. 821 ; 28 L. J., C. P. 202, post, p. 498. (x) Duneomb's case, do. Car. 36C. Ab- sor V. French, 2 Show. 28. Steel v. Frick- ett, 2 Stark. 463 ; except in the case of a limited dedication, see Arnold \. Hbl- brook, L. R., 8 Q. B. 96 ; 42 L. J., Q. B. 40. (y) Davison v. Wilson, 11 Q. B. 890 ; 17 L. J., Q. B. 196. Fallen v. Brewer, 7 C. B., N. S. 373. (z) Newton V. Harland, 1 M. & Gr. 644. [a) Browne v. Dawson, 12 Ad. & E. 029. lb) Wormer v. Biggs, 2 C. & K. 31. (c) Bac. Abr., Distress F. In some cases the shooting of a dog in pursuit of game may be justified, see post, pp. 498, SECT. II.] LEGAL AUTHORITY. 61 49 showing that the words were spoken or written upon a privileged occasion (d), or upon matters of public interest (e), without malice, or that the words were true (/). So, also, the taking of another before magistrates and pro- secuting him for an offence against the law may be justified by showing that there was reasonable and probable cause for such prosecution (g), and even if he fails in showing that, yet he may justify the prosecution if the jury think he acted bond fide, and without malice. SECTION II. LEQAL AUTHORITY. Arrests and imprisonments may be made justifiably under various atatutes, or by reason of some legal authority where offences against the law have been committed, or where there is reasonable and probable cause to suspect that a felony has been committed (A), and recruits and deserters who are soldiers may be detained (t). So lunatics may be imprisoned (A), and bail may arrest their principal for the purpose of cun-endering him into the custody of the law (/). An entry upon land by an execution creditor under a fi. fa. or ca. m. may be justified (w). And an entry may be justified under a warrant of justices under the Small Tenements Act, or in case of deserted premises («). An entry upon land in pursuance of a warrant of a coimty couit under 19 & 20 Vict. c. 108, s. 5, is not justifiable, unless the party has a lawful right to the possession (o). The demolition of houses may be justified under local Acts of Parliament, and so, also, many acts, which would at law be tortsj may be justified under the provisions of particular statutes (oo). So, also, a trespass may be justified under a custom to commit the act complained of, as where booths are erected on a high- way {p), or where a commoner removes an obstruction to his right (rf) Tost, oh. 7, " Pri"ileged Commu- nications." (e) Post, ch. 7. (/) lord Northampton's case, 12 Coke, 134. Alexander v. North Eastern Hail. Co., 6 B. & S. 340. {g) Post, ch. 7, " Malicious Prosecu- tion— Keasonablo and Probable Cause." {h) See post, ch. 6, '* False Imprison- ment." (i) irolloii V. Gavin, IC Q. B. 48. (/.) Seo post, p. 1G2. (/) Ex parte Lyne, 3 Stark. 132. Horn V. Hwinford, D. & Ry. N. P. C. 20. {m) Andrews v. Marfis, 1 Q. B. 3. Colktt V. Foster, 26 L. J., Ex. 412. (h) Mellinff v. leak, 16 0. B. 652. Edwards v. Hodges, 15 C. B. 477. (a) Soo Hodson v. Walker, L. R., 7 Ex. 55 ; 41 L. J., Ex. 51. {oo) Soo post, p. 382. {p) Tjjsoii V. Umith, 9 Ad. & E. 406. e2 6d THE JUSTIFICATION OF TORTS. [CHAP. II. 60 of common {q). And where a person having a limited right exercises it in excess to the injury of another, that other may justify the stopping even the limited user of the right until such user has heen isduced to its proper limits (qq). So, also, a trespass by fishing may he justified under a prescriptive right of fishing (r). There are many cases in which justices and other public officers are justified in acts which injuriously and wrongfully affect others, hut which they have done bond fide under the belief that they are acting within their powers and in accordance with justice («). SECTION III. LEAVE AND LICENCE. The defendant in an action may justify what would otherwise be a trespass to land by proving that he had 'he leave and licence of the plaintiff. This may be shown either by express permission or by circumstances {t). So, also, the defendant may justify an assault upon the person of the plaintiff by proving that the act was done with the plaintiff's consent (««). i I ; SECTION IV. INEVITABLE ACCIDENT. An injury inflicted by the defendant upon the plaintiff may be justified upon the ground of inevitable accident. A person is liable for an injury done, though it be done accidentally, as we have seen («), and even in doing an act lawful in itself where it infringes a paramount right {y). But where the accident is caused by what is called vis major , or the ** act of God," the defendant is not liable. Instances of this are to be found in cases of unusual P 11 (?) ArhU V. Ellis, 7 B. & C. 346. \qq) Post, p. 397. (r) Manmllv. Fisher, 6 C. B., N. S. 856. Richardson v. Orford, 2 H. Bl. 182. JVeiW V. Duke of Devonshire, 8 App. Cas. 136. Corporation ofSaltash v. Goad- man, 7 Q. B. D. 106. (») Seepo»<, ch. 11, "Duties of Public Officers." {t) Eavanagh v. Gudge, 7 M. & Q. 316. Ditcham v. Bond, 3 Camp. 624. And see these cases, post, p. 384. (m) Christophersmiy.Bare, 11 Q.B.477. Latter v. Braddell, 50 L. J., Q. B, 166, 448. This was formerly proved under the general plea of not sruilty, and not by special plea of justiiication. {x) Ante, p. 17. (y) Weaver y. KFrtrrf, Hob. 134. SECT, v.] ACT OF PLAINTIFF HIMSELF. £3 51 floods, snow Btorms, &o. (si. The express language, however, of a statute may impose a Habilit;y upon persons for even an inevitable accident, provided the languaj^e is very clear to that effect (a). A shipowner is not liable for a collision arising from inevitable acci- dent (6), nor generally for collisions where a compulsory pilot is on board (r). SECTION V. ACT OF PLAINTIFI- HIMSPU.F. Where the tort complained of turns out to be really the act of the plaintiff himself he cannot of course recover. This point arifes in questions of negligence, where the plaintiff alleges that he has been injured by the negligence of the defendant, to which the defendant replies that the plaintiff has been guilty of " contributory negligence," which is as much as to say that his act was the cause of the injury (d). (;) Xicftoh V. Marsland, 2 Ex. D. 1 ; 46 L. J., Ex. 174. Nugent v. Smith, 1 C. P. D. 423. (a) River IFear Commissioners v. jidam- son, 2 App. Cas. 743 ; 47 L. J., Q. B. 193. (A) The Marpesia, L. R., 4 P. C. 212. Lowardv. Lindsay, L. R., 6 P. C. 338. {c) Post, ch. 10, " Compulsory Pilot- age." (rf) See Horace Smith on Negligence, 2nd ed., pp. 226 ct seq. 54 da CHAPTER III. THE DISCHARGE OF TORTS. ill Discharge hy the act of part m — Waiver of torts. — If a man has taken possession of property, and sold or disposed of it without lawful authority, the owner may either disaffinn liis act, and treat him as a wrong-doer, and sue him, or he may affirm his act, and treat him as his agent, and claim the henefit of the transaction {a). Thus, if one man takes and wrongfully pledges (A), or sells, the goods of another, and receives the price, the latter may maintain an action to recover the money so received [c). But, if he has once affirmed the acts of the wrong-doer and treated him as an agent, he cannot afterwards treat him as a wrong-doer ; nor can he affirm his acts in part, and avoid them as to the rest. If, therefore, goods have been sold, or minerals or the produce of the soil have been wrongfully severed and carried away and converted into money, by a wrong-doer, the owner may sue for the sum for which they were sold (rf) ; but, if he thinks fit to receive the price, or part thereof, he ratifies and adopts the transaction, and cannot afterwards treat it as a wrong (c). Discharge by the act of parties — Accord and satisfaction. — When- ever the plaintiff has Cv>nsented to receive, and has actually received, satisfaction and recompense for the injury he has sus- tained, the cause of action is discharged, although the satisfaction and recompense were not one hundredth part of the value of his loss; for, by his own accord and agreement, the injury is dispensed with ; and in all actions in which nothing but amends are to be recovered in damages, there a concord carried into execution is a good plea(/). But the satisfaction must have been given and accepted in respect of the identical cause of ((?) Powell V. Urn, 7 Ad. & E. 428. Bailey v. Birtlet, T. Raym. 71. Terkin- son V. Gilford, Cro. Car. 539. The doc- trines laid down in this chapter are identical with those held by our courts. (A) AUamon v. Atkinson, 1 M. & S. 683. (e) Lamnie v. Dorrell, 2 Ld. Raym. 1216. Mward* v. Scarsbrook, 3 B. & S. 280 ; 32 L. J., Q. B. 45. (d) Rodgers v. Maw, 15 M. & W. 448. (e) Smith v. Hodson, 2 Sm. L. C. 6th ed. 119. Brewer v. /Sparrow, 7 B. & C. 310. Zi/i/iffoev. Vernon, 5 H. & N. 180; 29 L. J., Ex. 164. Smith v. Baker, L. R., 8 C. P. 350 ; 42 L. J., C. P. 165. (/) Andrew v. Boughey, Dyer, 75 b. ClUr. III.] DISCHAUaE BY THE ACT OF rAUTIES. 50 53 action complained of ; for, where a plaintiff who had received some internal injury in a railway collision, but was not awaro of it, accepted a Bmnll sum of money as compensation for damage done to his clothes and hat, and then brought an action for the injury to the person, it was held that such cause of action was imtouched by tlio accord and satisfaction in respect of the injury to the clothes (,7). And in cases where the person injured has been induced by tho false representations of the medical officers of the railway company to accept a small and almost nominal sum in full of all demands, and to give a receipt for the snmo, there is no accord and satisfaction (h). A receipt for money expressed to have been received in full satisfaction and discharge of a cause of action, as, for instance, of injuries received in a rail- Avay collision, is not conclusive proof of an accord and satisfaction. Tlie receipt is not an estoppel; and the question still remains whether the mind of tho plaintiff went with the terms of the re- ceipt, that is, was he aware of their import and effect at the time he signed the receipt (/). Either money or chattels, railway bonds or negotiable securities or an estate or interest in land, or a mere agreement only, may bo given, granted, or surrendered, and accepted, by way of compensa- tion and amends for the damages that may have been sustained. If goods of the defendant are in the hands of the plaintiff, and it is agreed between tho plaintiff and defendant that the plaintiff shall retain these goods as his own property, in satisfaction and discharge of the cause of action, and the goods are accordingly retained and accepted by the plaintiff in satisfaction, this is a valid accord executed (A). But the delivery and acceptance of a man's own goods and chattels constitute no satisfaction. Thus, in an action of trespass against a defendant in respect of an entry by him upon the plaintiff's land, the defendant said that after the entry there was an accord between them that the plaintiff should re-enter into tho same land, and should enjoy it without interruption by the defendant, and that the defendant should de- liver to the plaintiff all the title deeds concerning the said land, that the plaintiff had re-entered, and that the defendant had de- livered t^ * le deeds ; and it was held that this was no answer, for it mu ^^ intended that the title-deeds were the plaintiff's own title ^s, and then to deliver him his own deeds, and put him in possession of his own land, was no satisfaction of the wrong done before in keeping him out ; but it was admitted that, iff) Roberts v. Eastern Counties Hail. Co., 1 F. & F. 460. {h) Stewart v. Great Western Hail. Co., 2 De O. J. & S. 319. (t) Lee V. Lancashire and Yorkshire Hail. Co., L. R., 6 Ch. 627. liideal v. Great Western Rail. Co., 1 F. & F. TOG. (A) Jones V. Sawkins, 6 C. B. 142. 6d DIfiCIIAROE OF TORTR. [chap. III. I 54 if tlio (lofondaiit had phown any title in himself to the posscBsion of the deedB, thon his dclivoring them tip would have been a good bar to the action (/). The moaning of an accord and satisfaction is, that there has been an ngroomont for something to be done in satisfaction and discharge of tlit> cause of action, and that the agreement has been completely performed, so that there is a total extinguishment of the original cause of action (»»). Where the defendant had slan- dered the plaintilf, ond after the utterance of the slander the plaintiff and defendant met, and it was agreed that certain letters and documents in the handwriting of the plaintiff, in the pos- session of the defendant, containing certain proofs against the plaintiff of the truth of the charges made by the defendant, should be burnt, and that no action should bo brought, and the letterH were burnt, but the plaintiff, nevertheless, brought an action, it was held that the accord executed was a bar to the action («). Discharge hij the operation of law — Jvdgmcnt recovered (o). — Wlionevei judgment has been recovered in an action of tort, the judgment is a bar to any subsequent action for the same wrong ; " for you shall not bring the same cause of action twice to a final determination ; uemo debet bin vexari pro eddein causa : and what is the same cause of action is, where the same evidence will sup- port both actions" (;)). But by allowing judgment to go by default in an action to which there is a good defence, the defen- dant is not precluded from setting up such defence in any sub- sequent action in which the matter may arise between the same parties (q). In an action for slander you cannot have an action twice over against tlie same person for the utterance of the same words on the same occasion ; but every fresh utterance and publi- cation of the slander create a fresh cause of action, so that you may have two actions for words spoken at different times, con- veying distinct imputations upon the plaintiff; and judgment recovered in the first action would be no bar to the second action. The recovery of damages from a servant for leaving the service of his master, has been held to be a bar to a second action against another person for seducing the servant away from his master's service, because the damage for the loss of service was compensated for in the first action (r). And accepting a sum of {I) Bro. Abr. Accord, 1. f»i) Gabriel v. JJirsser, 15 C. B. G22. («) Lane v. ApphyaU; 1 Stark. 97. Ab to an agrrcemcnt for the making and acceptance of a public apology, lioosey V. Wood, 3 H. & C. 484: 34 L. J., C. P. 05. (o) As to the effect of a foreign judg- ment tM rem, see Cailrigiie v. Imric, L. 11., 4 H. L. 414 ; 39 L. J., C. P. 350. {p) Kitchen v. Campbell, 3 "Wils. 304 ; W. Bl. 827. (7) j/owhtt V. Tayte, 10 C. B., N. S. 818; 31L. J., C. P. 150. (r) Bird v. Randall, 3 Burr. 1345. CHAP. III.] DIPCIIAHOE BY TlIK OPKKATION OF LAW. 67 55 money awnrdod by a magiHtrato was held a bar to an action against tlio owners of an omnibus for negligence («). Whenever the cause of notion in the two suits is idonlioal, the recovery f)f judgment in the one is n bar to the other (/). A judgment, tlioroforo, in a county court, is a bur to an oction on the same Bubject-matter in any other court (»). But where damage to goods and injury to tlie ]i»>r8on was caused by tlie same wrongful Oct, recovery in the county court in an action for compensation for damage to the goods was licld no bar to an action subsequently commenced in the High (Jourt for inj ury to the person (jt) . A judg- ment obtained upon some teoluiical collateral point, not touching the substantial cause of action between the parties, is no bar to a subsequent action. '* Whero the declaration in tho second action is framed in such a manner that tho causes of action may be the same as those in tho first suit, it is incumbent on tho party bring- ing the second action to show that they are not tho same "(//). The plaintiff who brings a second action, ought not to leave it to nice investigation to see whether tho two causes of action are the same ; ho ought to show, beyond all controversy, that the second is a difforont cause of action from the first. Whenever the same point was not in issue in the prior action, tho judgment in such prior action can have no effect upon the second action (2) ; but, when the pleading and the state of tho record are such that the plaintiff might, if he had thought fit, have recovered his whole demand in the first action, he cannot afterwards be allowed to recover it in a second action. A plea of the recovery of judgment and damages in an action for a false imprisonment upon a charge of felony, is no answer to an action for a malicious prosecution for tho eamo felony. " It is altogether," observes Parke, B., " a different oause of action. The taking a man upon a charge of felony is distinct from the act of going before a grand jury and falsely and maliciously taking an oath to get a bill found against him for the same felony, and then going before a petty jury and trying to induce them to fiud him guilty" (a). Where the second action is founded upon some special damage (») Wright V. General Omnibus Co., 2 Q. B. D. 271; 46 L. J., Q. B. 429. (t) Slndt's ease, i Co. 9ih. I'/iillipsv. liernjman, 3 Doug. 288. If the record, when produced, shows on tho face of it that the cause of action in the second suit is not tho same as that for which judgment was recovered in the former action, the record at once disproves tlie plea, and the plaintiff will be entitled to a verdict. Wadsworth v. lietUlei/, 23 L. J., Q. B. 3 ; 1 ^ C. C. 203. {ii) Austin V. Mills, 9 Exch. 288; 23 L. J., Ex. 42, {x) llrunsden v. Humphrey, 14 Q. B. D. 141. (//) Jiagot (Lord) v. Williams, 3 B. & C. 239. {z) Carter v. James, 13 M. & W. 137. Jloulctt v. Tarte, 10 C. B., N. S. 813; 31 L. J., C. P. 1 16. {a\ Guest v. Warren, 9 Exch. 379 ; 23 L. J., Ex. 121. ■ i 68 DI8CIIAIIGE 01' TOUTS. [chap. III. . I 56 flowing from tlio f»riginal \vronp, tho jiulgraont rooovprod in an notion for bucIi original wrong will bo a bar to suoh sooond action, unloBS tlio ppooiftl damage ih sliown to const ituto a now oaiiso of oction. TluiH, whore tho plaintiff in liis declaration alleged that tho defondiint l)oat tho plaintiU's head against th(* ground, and that tho plaintiff brought an action of assault and battery for tliat and recovered damages, and that since tho recovery of suoh damages, by reason of ). Dischai'fje hi/ npcraiinn of faic—Confiiiiiiin/ injurii's. — But, where the injury is of a continuing nature, tho bringing of an action and tho recovery of damages for tho perpetration of tho original wrong do not prevent tho injured party from bringing a fresh action for the continuance of tho injury. Thus, if a building has been wrongfully erected upon the plaintill's land, and the plaintiff has brought an action and recovered damages for the trespass, ho is not thereby precluded from bringing a fresh action and recover- ing fresh damages for the continuance of the erection. If the defendant, for example, has thrown a heap of stones on tho land of the plaintiff, and leaves them there, the defendant is rosponsiblo from day to day until they are removed. Thus, where the trustees of a turnpike road built buttresses on the land of the plaintiff to Bupport tho road, and the plaintiff thereupon sued them and thoir workmen in trespass for such erection, and accepted money paid into court in full satisfaction of tho trespass, it was held that, after notice to tho defendants to remove the buttresses, and a refusal to do so, the plaintiff might bring another action of trespass against them for keeping and continuing the buttresses on the land, to which tho former recovery was no bar (c). So, where an action was brought against tho defendant for obstructing an ancient window of the plaintiff's house, by keeping and continuing a certain roof before then wrongfully erected adjoining tho said house, to tuo injury of tho plaintiflE's reversion, and former judgment recovered by the plaintiff against the deffudont for the same grievance was pleaded in bar, and the plaintiff replied that the grievances were not the same, and issue was joined thereupon, and it appeared that on a former trial, (i) Fetter v. Beak, 1 Salk. 11; 1 Ld. (c) Holmes v. Wilson, 10 Ad. & E. Raym. 339, 92. 503. CHAP. III.] DISCHAUGli IIY THE OPEKATION OF LAW. 60 57 between the same partioB, of an action for an injury to the plain- tiff's reversion in the same promises by erecting and keeping up the roof, tlie plaintiff recovored damages, it was held that such recovery was no bar to the second action ; for, if the erection of the roof in the first instance was an injury to the reversion, the continu- ance of it subsequently to the first action was a fresh injury to the reversioner, in respect of which a fresh action was maintainable { hi/ operation of law — Death of the person injured. — In consequence of this maxira executors and administrators cannot maintain an action for an assault upon or false imprisonmeigl of their deceased testator or intestate, or for a libel upon him, or for any act of negligence or violence not ending in death. So, formerly, when damage done to real property accrued wholly in the lifetime of the testator, the heir-at-law, devisee, or remainder- man, could not sue in respect of it; neither could the personal representative, in consequence of the old maxim of the common law, actio personalis moritiir cum persona. Thus, if crespassers entered upon the land and cut down trees, or gathered, carried away, and sold growing crops and fruit, or set fire to buildings, and caused them to bo utterly consumed, the heir could not sue, because the damage was sustained in the lifetime of the ancestor, and the personal representatives could not recover the damages that had been sustained, because tliey were personal to the deceased, and the remedy died with him (A). But by the 'A & 4 Wm. 4, c. 42, s. 2, reciting that there was no remedy provided by law for injuries to the real estate of any person deceased, committed in his lifetime, it is enacted that an action of trespass or case may be maintained by the executors or administrators of any person deceased for any injury to the real estate or such person, committed in his lifetime, for Avhich an action might iiave been maintained by such person, so as such injury shall have been committed within six calendar months before the death of such deceased person, and pro- vided such action shall be brought within one year after the death of such person. On the death of an owner of goods and chattels in the hands of bailees and depositaries, the right of property in the chattels vests in the personal representatives ; and, if the bailee has no lien upon them, or interest in them, or right to detain them as against the owner, the personal representatives may demand possession of them ; and, if the bailee refuses to deliver them, he may be sued for the detention or conversion of the pfiperty (/). Being them- selves the owners of the property on the death of the testator or intestate, they are the proper persons to sue in respect of tres- passes committed by persons who take the goods out of their actual or constructive possession, or out of the custody of their servants or ogents («?) ; but th(;y could not, at common law, suo in respect of any detention or conversion of the property in the lifetime of the deceased owner, nor for a trespass in taking it awr^', by reason of the maxim actio j)crsonaIis moritur cum pcr- (k) Adam v. liihtol, 2 Ad. & E. 389. Uaymortd v. Fitch, 2 C. M. & R. 697. (0 IloUts V. Smith, 10 East, 292. («() Adams v. Chcrml, Cro. Jao. 113. f 1 CHAP. III.J DISCHARGE BY THE OPERATION OF LAW. Gl 59 sond. To remedy this it was enacted by the 4 Ed. 3, c. 7, that executors sliall have actions for a trespass done to their testators in respect of the goods and chattels of tho said to tators carried away in their lifetime, and recover thoir damages • ■ ^ i xe manner as they whose executors they bo should have ha . it liiey were in life. By the 25 Ed. 3, c. 5, tho benefit of this si i' ?*( is extended to the executors of executors ; and administrators are within the equity of the .tatute. It has been held that an action is main- tainable by executors under this statute against a defendant for cutting down and carrying away a growing crop of wheat from the testator's land in his lifetime, because corn growing is a chattel («). It has also been held th'"!, under these statutes (which, being remedial in their nature, have been construed very liberally), an action will lie at the suit of an executor against a sheriff for a false return in the lifetime of the testator (o), and also for an escape (p), on the ground that by these wrongs the value of the testator's personal estate is diminished. So, where an action had been brought to recover from tho promoters of a public company the price paid by the plaintiff for shares which had proved value- less, on the ground that the prospectus issued by them omitted (in breach of sect. 88 of the Companies Act, 18G7) to disclose certain contracts which had been specified therein, and, after judgment and pending an appeal to the House of Lords, the plaintiff died, it was held that the plaintiff's interest in the action survived and was capable of transmission to his personal representatives {q). But an executor cannot sue in respect of damage to his testator's estate, such as loss of wages sustained, and medical expenses incurred by the testator in consequence of personal injuries arising from a pure tort (>•). Where an action for tort had been referred to an arbitrator w'th the usual agreement that he should deliver his award to the personal representatives of either party dying before the making of tho award, and one of them died, it was held that tho agreement simply referred to the mode of procedure, and that the clause was inoperative in the case of an action of tort (s). Discharge by death — Contmuiiig injuries. — All causes of action in respect of injuries of a continuing nature to real property descend with the property to the heir-at-law on the death of the ancestor, or vest in the devisee, remainderman, or personal repre- (h) Emerson v. Emerson, 1 Vent. 187. {u) Williams v. Canj, 4 Mod. 403 ; 12 Mod. 71. (p) liertvick v. Andrews, 2 Ld. Eaym. 971, 973. {q) Twycrois v. Grant, ante, p. 57. (»•) PulUng V. Great Eastern Mail. Co., 9 Q. B. D. 110; 51 L. J., Q. B. 543. W Botcker v. Evans, 16 Q. B. D. 565 ; 54 L. J., Q. B. 421. 62 DISCHARGE OF TORTS. [chap. IIT. 'WK 60 seutative, in whom the legal estate in the land may be vested by deed, will, or administration (/). The heir-at-law is the proper person to maintain an action for the entire damage resulting from a nuisance of a continuing nature to land which comes into his possession by descent. Thus, whore one John Rolf built a house so near to the house of Richard Rolf that the eaves of his said house did overhang the house of Richard, and pour water thereon, and afterwards both John and Richard died, and their respective houses descended to their respective sons and heirs-at-law, and the heir of John, on request made to him by the heir of Richard, did not reform the wrong, whereupon the latter brought an action against the heir of John, who did demur in law, it was adjudged that the action was maintainable, because the defendant did not on request reform the nuisance which his father had made, but suffered it to continue, to the prejudice and damage of the plaintiff, son and heir of liim to whom the wrong was done («). So, where a nuisance erected on the land of a devisor in the lifetime of such devisor was continued afterwards in the time of the devisee, it was held that the devisee should have an action for it, for the continuance of it is a new erecting of such nuisance {x). When the reversionary interest of a deceased leaseholder, who has underlet the premises demised to him, becomes vested in his personal representatives, they are, of course, the proper persons to sue for damages in respect of permanent injuries to the property of a continuing nature, which diminish the value of their reversionary estate. Discharge by operation of laic — Death of the tort-feasor. — An action did not in general lie at common law against executors to recover damages for waste committed by their testator, it being a tort which died with the person (//) . They were not responsible in damages for injuries done by their testator in cutting down another man's trees, or for trespasses committed by him in entering in his lifetime upon another man's land, and prostrating fences, or digging therein, where the wrong-doer acquired no gain to himself from the commission of the wrong ; but, wherever by the wrong done property was acquired which benefited the testator, there an action for the value of the property survived against the executor. So far as the tort itself went, the executor was not liable ; but, so far as the act of the offender was beneficial to his personal estate, ,'i (<) Tivian v. Champion, 2 Ld. Raym. 1126. {«) 2 Hen. 413. 31 Ed. 3, Vouchor, 272, cited in renruddock' a ease, 5 Co. 205. Gillon v. Bodd'wgton, cited 6 B. & C. 268. {x) Some V. lianvish, Cro. Jac. 231. (y) 2 Inst. 301. CHAP. III.] DISCHARGE BY THE OPERATION OF LAW. 03 61 his assets were answcraWe, mid liis executor was charged. AVhere, therefore, trees, coals, or minerals ^vrongf ully severed by one man from the soil and freehold of another, have been sold by tho wrong-doer, and the latter dies, his estate, in the hands of his executor, is answerable for tho price ; and an action for money had and received may bo maintained against thu executor for the recovery thereof (s). Personal representatives were not at common law responsible for a conversion or unlawful detention by their testator or in- testate in his lifetime of another man's chattels, the private wrong being, as we have seen, buried with the offender. But, where there had been a conversion of i)roperty by the deceased, which had benefited his personal estate, the personal representative might, in general, have been sued (a). If a man takes a horse from another, and brings him back again, an action for the trespass will not lie against his executor ; but an action for the use and hire of the horse by the deceased may be maintained (Z»). Where tho plaintiff declared that he was possessed of a cow which he delivered to the testator to keep for him, and that the testator sold the cow, and converted and disposed of the money to his o^vn use, it was held that the executor was not responsible in trover for the conversion of the boast by the testator, but that he might be made liable for the value of it in an action for money had and received (c). No action lies against an executor of a deceased sheriff, gaoler, or officer, for an escape suffered or permitted by his testator, or by reason of his testator's having neglected to attend and give evidence in o cause in obedience to a subpoena served upon him in his lifetime ('/) ; nor are executors liable for the negligence of their testator (e) ; or for his fraud, if his estate has derived no benefit therefrom (/). By the 3 & 4 Wm. 4, c. 42, s. 2, reciting that there was no remedy provided by law for certain ^vrongs done by a j)ersou deceased in his lifetime to another in respect of his property, real or personal, it is enacted that an action of trespass or case may be maintained against the executors or administratois of any person deceased, for any •wrong committed by him in his lifetinio to another in respect of his property, real or personal, so as such {z) Powell V. Eees, 7 Ad. & E. 428. (a) Ashley V. Taijlor, 10 Ch. P. 768. See, however, PhiUips v. Ilomjra'/, 21 Ch. D. 439 ; 62 L. J., Ch. 833 ; llApp. Gas. 466,whereCotton andBowen, L.JJ., held that a personal representative could not he sued unless property belonging to another person had been appropriated by the deceased. (i) Ilamblij v. Trott, Co\n). 375. {e) Bailey v. Blrtlcs, Sir T. Eaym. 71. PcfkbiKon V. Gilford, Cro. Car. 539. (rf) Williams on Executors, 8th ed., pt. 4, bk. 2. (c) Ovcrend cj- Co. v. Gurtiey, L. R., 4 Ch. 701 ; 39 L. J., Ch. 45. (/) Peck V. Gurney, L. R., 6 II. L. 377; 43 L. J., Ch. 19. m I Mi ' I ii 64 DISCIIAUCK or TORTS. [CIIAP. III. 62 injury Bhall have been committed within six calendar months before buch person's death, and so as such action shall be brought within six calendar months after such executors or administrators shall have taken upon themselves the administration of the estate and effects of such person ; and the damage to be recovered in such actions shall be payable in like order of administration as the simple contract debts of such person. Where a watch was shown to have been in the possession of a testatrix more than six months before her decease, and she was asked within the six months to give it up, and wrongfully refused, this was held to be evidence of a conversion within six months of her death {{/). Permissive waste by a tenant for life is within the statute (h). Where the plaintiff brought his action for damages and injunction against T., who died more than six months after the commission of the acts complained of and the commencement of the action, it was held that the action could not be continued against his executors (/). Discharyc hi/ operation of law — DiHcharge hy marriage — Marriage of a nomnn who has been injured. — Formerly where a wrong was done to a single woman who afterwards married, the right to recover damages for the wrong was a chose in action which vested in the husband, subject to his reducing it into his possession during the coverture. But now by the Married Women's Property Act, 1882, sect. 1, sub-sect. 2 (A), a married woman is capable of suing or being sued either in contract or in tort in all respects as if she were a feme sole, and her husband need not be joined with her or made a party to any action brought by or against her ; and it has been held that this section applies to an action brought by a married woman for a tort committed before the Act came into operation (/) . And where an action for trespass was brought by a married woman against a person who with the authority of her husband entered a house of which she was in sole occupation, and which she had bought with her own earnings, since the Married Women's Property Act, 1870 (/«), it was held thpt she could sue alone («). The effect of the section has been to release a woman who is the subject of a wrong from coverture, in the sense which incapacitated her from suing ; and so where a married woman brought an action for assault ana false imprisonment committed before 1883, it was held that the four years fixed by the Statute of Limitations (o) for (17) Bichmondy. Nicholson, 8 Sc. 137. (/() Woodhouse v. Walker, 5 Q. B. D. 404 ; 49 L. J., Q. B. 609. (D Kirk V. Todd, 21 Ch. D. 484 ; 62 L. J., Ch. 224. {k) 45 & 46 Vict. e. 75. (/) Weldon v. Wineloiv, 13 Q. B. D. 784 ; 63 L. J., Q. B. 628. (m) 33 & 34 Vict. c. 93. («) Weldon v. Be Bathe, 14 Q. B. D. 339; 64 L. J., Q. B. 113. (o) 21 Jnc. 1, o. 16. CHAP. III.] DISCHARGE BY THE OPEUATIOX OF LAW. GG 63 bringing such an action, began to run from January 1st, 188 3, when the Act came into operation {])). Discharge hy operation of laic — Marriage of a female tcrong' doer. — At common law the husband took the wife with all her obligations and liabilities, and became answerable for all torts com- mitted by her when single ; but by the 37 ti 38 Vict. c. 50, it was enacted {q) that the husband shall, in any action brought for damages sustained by reason of any tort committed by the wife before marriage, be liable for the damages to the extent only of the following assets : — (1) The value of the personal estate in possession of the wife, which shall have vested in the husband ; (2) The value of the ('hoses in action of the wife which the husband shall have reduced into possession, or which with reasonable diligence he might have reduced into possession ; (3) The value of the chattels real of the wife which shall be vested in the husband and wife ; (4) The value of the rents and profits of the real estate of the vvdfe which the husband shall have received or with reasonable diligence might have received ; (5) The value of the husband's estate or interest, real or personal, which the wife in contemplation of her marriage with him shall have transferred to him or any other per- son ; (6) The value of any property, real or personal, which the wife in contemplation of her marriage with the husband shall with his consent have transferred to any person with the view of defeating or delaying her existing creditors. But it was provided that, when the husband after marriage paid any debt of his wife or had a judgment bona fide recovered against him in any such action as in the Act mentioned (r), then to the extent of such payment or judgment the husband should not in any subsequent action be liable. By 45 & 46 Vict. c. 75, s. 14, a husband mai'ried since January 1st, 1883 (.s), is liable for wrongs committed by his wife before mar- riage (/) to the extent of all property whatsoever belonging to his wife which he shall have acquired or become entitled to, from or through his wife, after deducting therefrom any payments made by him, and any sums for which judgment may have been bond fide recovered against him in any proceeding at law in respect of any debts, contracts or wrongs, for or in respect of which his wife was liable before her marriage; but no further; and the court has power to direct an inquiry to ascertain the value, nature, and amount of such property. [p) Lowe V. Fox, 16 Q. B. D. 667 ; 54 L. J., Q. B. 661. [q) Sect. 2. This Act was repealed by theMarriedWomen'sPropertyAct, 1882. (r) That is, any action for a debt of his wife contracted, or for a tort committed, or the breach of a contract made, by her before the marriage. («) See the proviso to tho section. {t) As to his liability for her tortd committed after her marriage, ^Qopost, p. \n. m l\ ^ I 66 DISCHARGE OF TORTS. [chap. III. 64 By sect. 13 of the same Act it is provided, that a married woman may be sued olone for wrongs committed by her before marriage, and any damages and costs recovered against her shall be payable out of her separate estate and not otherwise. If, however, a husband and wife married since January 1st, 1883, are sued jointly and for a tort committed by the wife before mar- riage, and it is found that the husband is not liable in respect of any property acquired by him or to which ho has become entitled through his wife, then the husband shall have his costs of defence whatever may bo the result against the wife (»)• A husband and wife cannot, however, sue each other in toi*t except under special circumstances (x). Diseharye hy operation of law — Discharge hy hanhruptcy — Bank- ruptcy of the person injured. — Tlie property of bankrupts vests in the trustee, who, where any portion of the property of the bankrupt consists of things in action, may institute suits to recover them ; and such things are for the pxirposes of the action to be deemed to be assignable at law, and to have been duly assigned to such trustee (//). The trustee, therefore, is the proper party to maintain an action for injuries done to real or personal property, Avhich has become vested by reason of the bankruptcy (s) ; but he cannot main- tain an action for injuries to the person or personal feelings of the bankrupt («). lie cannot sue, for example, for damages for a libel upon the bankrupt, although the injury occasioned thereby to the man's reputation may have been the sole cause of his bankruptcy ; nor can he sue for damages for an assault upon the bankrupt, or for the seduction of his servant (6) ; and, if in these cases a conse- quential damage to the personal estate follows from the injury to the person, that damage may, nevertheless, be so dependent \ipon, and inseparable from, the personal injury, which is the primary cause of action, that no right to maintain a separate action in respect of such consequential damage will pass to the trustee. But, where the primary and substantial cause of action is not, properly speaking, personal to the bankrupt, but the injury to the person is the consequence of an injury to the personal estate, the injury to the personal estate is the primary and substantial cause of action, and such right of action will pass to the trustees as part of the personal estate (c). Thus, damages for the wrongfxil dismissal of the bankrupt are recoverable by the trustee {d). (m) Sect. 15. {x\ Sect. 12. iy) 46 & 47 Vict. 0. 52, s. 44. Iz) Michell v. Hughes, 6 Bin), or by agreement (y). Tho 37th section of the 4G & 47 Vict. c. 52, enacts that demands in the nature of unliquidated damages arising otherwise than by reason of a contract or promise, or breach of trust shall not bo proveable in bankruptcy. Under tho old law damages in an action of toi-t were not a proveable debt in bankruptcy until judgment had been signed. This is not altered by the o7th section ; and, consequently, when judgment for such damages is signed after tho adjudication, the amount cannot be proved in, and the liability to pay thom is not discharged by, the bankruptcy (r). "Where a verdict was obtained for damages for detention of goods in default of a return, and before execution issued the defen- dant became bankrupt, it was held that the plaintiff was not a creditor for the amount of the damages, as until execution the pro- perty in the goods remained in him («) . Discharge by operation of law — The Statates of Limitation. — By the 21 Jac. 1, c. IG, s. 3, it is enacted, that all actions of trespass quare clausiini fregit, all actions of trespass, detinue, trover, and replevin, for taking away of goods and cattle, all actions upon the case, and all actions of assault, menace, battery, wounding, and imprisonment, or any of them, shall be commenced within the time and limitation thereafter expressed, and not after ; that is to say, the said actions upon the case other than for slander, and the said s i (Hi) Married Women's Property Act, 1882, 8. 2. (>i) Ex parlc White/lead, U Q. B. D. 419 ; 64 L. J., Q. B. 639. Ex parte iSiAo^A, 14Q. B. D. 417; 64L.J.,Q.B. 322. (o) Lloyd V. I'cdl, 3 B. & Aid. 408. Tarker v. Crole, 5 Bing. 63. Parker v. 2\orton, 6 T. R. 699. lie Seartli, L. R., 10 Cli. 234 ; 44 L. J., Bk, 29. (,p) Ex parte Harding, 5 D. M. & G-. 368. Ex parte Todd, 6 D. M. & G. 744. {q) Ex parte Mumford, 15 Ves. 289. (r) Ex parte Keivmaii, 3 Ch. D. 494. Ex parte Mabheud, 2 Cb. D. 22 ; 46 L. J., Bk. 65. (.v) Ee Scart/i, L. R., 10 Ch. 234 ; 44 L. J., Bk. 29. CIIAI'. lir.] DISCHAUGE DY TlIK OPKBATION OF LAW. 69 I 67 actions for trespass, detinue, and replevin, for goods or cattle, and the said actions of trespass qnave c/diisKni/mfif, within six years next after the cause of such actions or suit, and not after; and tlio said actions of trespass, of assault, battery, wounding, imprison- ment, or any of them, within fo\ir years next after the cause of Buch actions or suit, and not after ; and the said actions upon the case for words, within two years next after the words spoken, and not after. But (s, 4), if in any of the said actions judgment he given for the phiintiff, and the same ho reversed by error, or a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment the judgment bo given against the plaintiff, that ho take nothing by his plaint or writ, the plaintiff, his heirs, executors, &c., may commence a new action within a year after such judgment reversed, or given against tlio plaintiff, and not after. If the person entitled to any such action is at the time the action accrues within the age of twenty-one years, or feme covert, or uon compos mentis, such person is at liberty to bring the same actions so as they are commenced witliiu the time of limitatiou after the coming to, or being of, full age, discovert, or of sound mind (/). By the 19 & 20 Vict. c. 97, s. 10, absence beyond seas and imprisonment of the plaintiff at tlie time of the accrual of the cause of action are no longer to have the effect of extending the period of limitation. This section is retrospective {ti). By the 4 & 5 Ann. c. IG, s. 19, it is enacted that if any person or persons against wliom there shall be any cause of action of trespass, detinue, actions sitr trover, or replevin for taking away goods or cattle, or of action upon the case, or assault, menace, battery, Avounding and imprisonment, or any of them be or shall be at the time of any such action given or accrued, fallen or come, beyond tlio seas, that then such person or persons Avlio is or shall be entitled to any such suit or action shall be at liberty to bring the said actions against such person or per- sons after their return from beyond the seas, so as they take the same after their return from beyond the seas within sucli times as are respectively limited for the bringing of the said actions before by this Act and by the 21 Jac. 1, c. IG. By the 19 & 20 Vict. c. 97, 8. 12, no part of the United Kingdom of Great Britain and Ireland, nor the islands of JMan, Guernsey, Jersey, Alderney, and Sark, nor any islands adjacent to any of them, are to be deemed to be beyond seas within the meaning of the 4 & 5 Ann. c. 16. The words " beyond the seas " are synonymous -with " out of the realm, or territories," and are not to be construed literally {x). % ■<<• I' I f ■IV' (<) 21 Jac. 1, c. 16, s. 7. As to feme covert, see ante, p. 62. («) Comilly. Hudson, 8 El. & Bl. 429 ; 27 L. J., Q. B. 8. Pardo v. Bingham, L. R., 4 Ch. 735 ; 39 L. J., Ch. 170. {x) Ruckmaloye v. LuUoohhoy Motti- chund, 8 Moo. P. C. 4. • Hi 111 70 DISCHAKOK OF TOUl'H. [chap. III. 68 Lmhdvgc by operation of Ian — Ciiiimriircmcitt of the period of limitation. — Tho timo of limitation begins to run from the accrual of tho cause of action ; and, when an ant has been done which is actionable only in casso it causes damage and injury to another, tho time of limitation will run, not from the period of tho doing of tho act, but from tho timo of tlie accrual of tho damage. Thus, where one person is possessed of the surface of land, and another is owner of the subsoil, and the owner of tho subsoil excavates therein for minerals, without causing any immediate apparent injury to the surface, but damage ultimately ensues, and the surface subsides, the timo of limitation will begin to run from the time when tho dama^ manifested itself, and not from tho period of the making of the excavation (//). If a man, by digging and constructing basins and canals on his own land, causes a stream of water to flow against his neighbour's wall, and gradually to undermine it, eo tliat at last the wall falls, tho period of limitation runs from tho timo of tho falling of tho wall, and not from the time of the con- struction of the basins and canals (s). And, if a man, by digging on his own land, wrongfully lays open tho foundations of his neighbour's wall, and causes them to be gradually weakened by the effect of flowing water, rain, and frost, so that at last tho wall falls, the time of limitation runs from the time of the falling of tho wall, and not from the time of the excavation of the soil (a). Where slanderous words aro uttered which create no cause of action unless they are followed by special damage, the period of limitation runs from the time that special damage accrues, and not from the timo of the utterance of the words {h). Wlienever one person does anything or permits anything to bo done on his O'svn land which causes injury to his neighbour, and the injury is of a continuing nature, the cause of action, as wo have scon (ii), continues, and is renewed, de die in diem, as long as tho cause of the continuing damage is allowed to continue (f). Where an action is brought for a false imprisonment, every continuance of the imprisonment de die in diem is, in point of law, a new imprisonment, and, therefore, the time of limitation runs from the last day of such imprisonment, and not from the time of its com- mencement {d). (y) Boiiomi v. Baclchoitse, El. Bl. & El. GC2 ; 28 L. J., Q. B. 37S ; 34 ih. 181. Ld. Wcusleydalo, Rovliotlhtm v. Wilton, 8 II. L. C. 359; 30 L. J., Q. B. 965. Um-letj Main Colliery Co. v. Mitchell, 11 App. Cas. 127. But contra, holding that the time of limitation com- mences from the timo when tho nuisance is created, son Powers v. Council Bluffs, 45 Iowa, 652. The doctrine of this case, however, to this extent, is bqlieved to be unsound, and not expressive of tho truo rule. (;) Gillon v. BodJington, Ry. & M. 161. («) Roberts v. Read, 16 East, 217. (A) Saunders v. Edicards, 1 Sid. 95. (M) Ante, p. 56. ((•) Whitehouse v. Fvllowes, 10 0. B., N. S. 765 ; 30 L. J., C. P. 305. (rf) Hard;/ v. Rylc, 9 B. & C. 608. Masscy v. Johnson, 12 East, 68, CHAP. III.] DISCIIARQE «V THE OPEIIATION OF LAW. 71 As a general rule, the period of limitation runs from the time of tho commission of the wrongful act, and not from tlio time of 69 tho knowledge of tliat act by the plaintiiT, there being no proof of any fraud practised by tho defendant in order to conceal that knowledge from the plaintiff (r). Tims, in actions for negligence, tho cause of action accrues at tlie time of the occurrence of tho act of negligence, and not from the period of its discovery by tho plaintiff. But in actions of detinue, where the defendant has goods iinder his charge under an implied contract to re-deliver them on request, and has wrongfully dealt with them without tho knowledge of tho owner, tho period of limitation runs, either from tho date of such conversion, or, at the option of the owner, from tlio date of the dt'fondant's broach of duty by refusing to deliver on request (./'). Wherever there is fraud, the statute begins to run only from tho time when the fraud was, or with reasonable diligence might have boon, discovered (y). Dinc/iarf/c by operation of law — Extomon of the period of iiinifa- tion in certain cases. — Formerly when tho action abated by tho death of the plaintiff, or was abated without default of the plaintiff by the act of God, and the period of limitation liad rim out before tho commencement of a fresh action, the courts indidged the plaintiff with the liberty of suing out a new writ, so that he did it within a reasonable time. One mode of measuring the time was with reference to the time it would occupy in getting to the place where a now writ was to be obtained. Hence tho writ got the name of a writ of journey's accounts. But there was no exact limit' of time to govern the court in saying what was a reasonable time in getting the writ ; and the question was, whether tho action was, under the particular circumstances of the case, brought within a reasonable period after tho expiration of the time of limitation (/<). Now, however, an action is not abated by reason of the maniage, death, or bankruptcy of any of the parties, if the ctiuso of action survives or continues (/). Discharge bi/ operation of law — Limitation of actions in respect of things done under local and personal statutes. — By the 5 & 6 Vict. c. 97, 8. 5, it is enacted, that the period within which any action SI ^*l ((■) Granger v. George, 5 B. & C. 149 ; 7 J). & R. 730. (/) mikinsoH V. Ferittj, L. R., 6 C. P. 20G; 40 L. J., C. P. 141. Hecvc v. Palmer, 5 C. B., 1,'. S. 84, 91 ; 28 L. J., C. P. 1G8. iff) Gibbs V. Guild, 9 Q. B. D. 69 ; 51 L. J., Q. B. 313. This ia not generally tho rule in this country, although the doctrine is held in some of the states ; Fears v. Sykes, 35 Miss. 633 ; Simons v. Fox, 12 Rich. (S. C.) L. 392 ; Clarke v. Iteedcr, 1 Speers (S. C), 398. But in others tho statute expressly provides therefor. {h) C'urletcis v. Mornington, 27 L. J., Q. B. 439. (t) And in case of death hctwcen ver- dict and judgment there is no abatement. Order XVII. r. I. II !■' li 72 DI8C1IAK0K OF T0KT8. [CHAr. III. may be brought for anything done untlor tho authority or in pur- Buanco of ony local and personal Act8(/), shall bo two years, or, in caflo of continuing damago, ) upon liis neiglibour's land for that pur- pose {(•) ; but he shoidd give notice* to the person creating tlio nuisance, and require him to abate it {(f). So, also, encroachments, such as houses, gates, fences, &c., upon commons may be abated {e). And where a right or easement is exercised in an unreasonable manner, or in excess of tlie privilege, the right or easement may, if necessary, bo entirely abated until the excess is done away (_/'), taking care to do as little damage as possible (r/). In order to justify the abatement of a public nuisance by a private individual, he must show that he is specially injured by the nuisance, and that his own special right is interfered with (//). (a) Ante, p. 48. [!)) Beddally.Mnitlaud, 17 Ch. D. 188. {c) navies v. WiUiamH, 16 Q. B. 650. Seo Wood on Nuisances, 976. (rf) Pernj v. Fitzhowe, 8 Q. B. 776. Jonci V. Jones, 1 II. & C. 1 ; 31 L. J., Ex. 506. [e) Daviea v. IViUiams, 16 Q. B. .5J0. Jones V. Jones, 1 H. & C. 1 ; 31 L. J., Ex. 606. See post, ch. 8, sect. 2. (/) Cuu-kurll V. liiissetl, 26 L. J., Ex. 31. Gireiisldde v. lldllklai/, 6 Biug. 379. {q) Itoberts v. Itosc, L. R., 1 Ex. 82 ; 33 L. J., Ex. 35, 62. (//) Arnold V. Holbrook, L. R., 8 Q. B. 100. Jtobn-U V. Rote, 3 H. & C. 162 ; L. R., 1 Ex. 82 ; 33 L. J., Ex. 35. See Wood on Nuisances, 794 — 819. i , V.\fS 74 OF KEMEDIES. [CUAP. IV. 72 SECTION II. DISTIIESS. Akin to the right of abatement of a nuisance is the riglit to seize, remove, and impound cattle damage feasant (i). But this right is restricted to such animals and chattels m are not in the actual possession and use, and under the actual personal oontiol of some person. So, if a man rides over my corn I cannot take his horse, for that would lead to a breach of the peace (/.), but a dog within whistle is not under actual personal control (/). It is said that domestic pigeons may be shot damage feasant (m). It was held in one case that a railway company had a common law right to distrain damage feasant engines and trucks encumbering their line(/(). SECTION III. ACTION. No wrong without a remedy. — " It is a vain thing to imagine a right without a remedy ; for want of right and want of remedy are i3ciprocal" (o). The maxim of the law, "«6t.y«s, ihi remeduim,^* has at all times been considered so valuable, that it gave occasion to the first invention of that form of action, called an action on the case, where the novelty of the complaint is no objection to the action, provided ai injury cognizable by law, is shown to liave been inflicted on the plaintiff {p)\ for "this form of action was intro- duced for the reason that the law would never suifer a wrong and a damage without a remedy " {q) ', but there are cases where per- sons have suffered serious injury from the nets and doings of others of which the law, from reasons of public policy, takes no cog- nizance. An action, for example, cannot be maintained against a commanding officer in the army or navy for maliciously accusing, arresting, and bringing to a court-martial a subordinate of^cer, (i) Seopo«<, ch. 8, sect. 2. \k) 9 Vin. Abr. 121, Distress A., pi. 4. Field v. Adamcs, 12 Ad. & E. 649. (/) Bunchy. Kennington, 1 Q. B. C80. As to fishing, see Bac. Abr., Distress F. (»i) Deicell V. Nandcn, Cro. .Tac. 490. Uannam v. Mockett, 2 B. & C. 939. («) Ambcrgate Rail. Co. v. Midland Mail. Co., 2 El. & Bl. 793. (o) Holt, C. J., Ashby v. White, 2 Ld. Raym. 953. {p) See the note to Ashby v. White, 1 Smith's L. C. 213—223. [({) Willes, C. J., Wiitsmore v. Green- bank, "VViUos, 577. SECT. III.] ACTION. 76 73 however great may have been the perversion of his authority, and however false and unfounded the charge (r). No action will lie against a witness for uttering false statements in the course of a judicial proceeding, oven though it is alleged to have been done falsely and maliciously, and without any reasonable or probable cause (s). Those, however, are only appai-ent, and not real, excep- tions to the maxim ; for, although iu those cases damage is in- flicted, yet from reasons of public policy there is in law no injuria or wrongful act. Wherever a statute creates a right, or a duty, or an obligation, then, although it lias not in express terms given a remedy, the remedy which by law is properly applicable to that riglit or obli- gation follows as an incident (t). The statute of Westminster the second (1 stat, Vi Ed. 1), c. 50, gives a remedy by action on the case to all Avho are aggrieved by the neglect of any obligation or duty created or imposed by statute (u) ; and, " in every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary 1 the said law" (x). But when the right or duty is entirely the creature of the statute, and a specific remedy is provided by the statute for its enforcement, that remedy, and that only, must be piirsued (;/), unless the remedy does not cover the entire right (s). The 68th section of the Railways Clauses Act, 1845, (8 & 9 Vict. c. 20,) enacts that the company shall maintain certain works for the accommodation of the owners and occupiers of lands adjoining the railway, sucli as gates, fences, culverts, drains, watering-places for cattle in certain cases, &o. ; and the 69th section enacts that, if any dilference arises between the company and such owners or occupiers as to the kind, number, size, main- tenance, &c., of such works, it shall be determined by two justices. The court, therefore, will, as a rule, refuse to intoifere in such cases {a). So, whenever an Act of Parliament creates a duty or obligation to pay money, an action will lie for its recovery, unless the Act contains some provision to the contrary (b), or provides some M Ante, p. 31. (s) Eric, C. J., Barhrr v. Zcsifer, 7 C. B., N. S. 187; 29 L. J., C. P. 161. {() Miiule, B., liraUhtvaitc v. Shinncr, 5 M. & W. 327. («) 2 Ini-tit. 48G. {x) Com. Dig. Action upon Statute, P. {y) Stevens v. I-lrans, 2 Burr. 1157. Underhill v. FAlicombc, M'Clel. & Y. 455. Doe v. Bridges, 1 B. & Ad. 859. Dtmdalk Western Bail, Co, v. Tapster, 1 Q. B. 607. Stevens Y. Jcacoekc, 11 Q. B. 741 . 1 T.. J., Q. B. 163. St. Pancroi r>g, 12 Ei.pt, 413 ; 1 Hale, P. C. 643. (p) Bawle" V. C y i/*, Sty. 340. (?) Crosbi/y, I. :■,, li East,' 413, '(• .'/> I /<•!/ } West Bromwich Banking (■j.->. ':/KttL, IJ. & H. 14. {■I Whitr. V. Spetiigiic, 13 M. & W. QCii, oviiruliiig GiniMH v. iromljidl, 2 r. .v ?\ 41. Unborn v. aUlett, L. It., 8 .1/c. •.;?; 42 L. J., Et. 63. Appkbii v. l-i-anldin, i" '\ B. D. 93. (<) Wflls V. ^ihrahams, L. R. 554: 4! L. .J., Q. S, ?"u Bali, 10 Oh. D. 667. iit) Meg. V. Hanhy, 14 Q. B. 541. [x) Le Fa.iu v. Ji^akolmson, 1 H. L. v> 637. Cork v. Batchehr, 3 B. & S. 160. 7 Q. B. Ex parte C, SECT. III.] ACTION. 79 77 injuries to their common property, such as trespasses upon their land, or nuisances to their estates ; because, though their estates are several, yet the damages survive to all (//) ; and, if a nuisance to the land of two tonants iu common was continued after tho death of one of them, llio devisee of tho deceased tenant in com- mon could join tho survivor in an action for such nuisance (z). But, where the wrong done to ono was no wrong done to the other, as in the case of false imprisonment, or assault and battery, where what ono man suffers is altogetlior different from tho injury that accrues to another from the same cause, separate actions must have been brought. Now, however, it has been held that, by tho operation of the Judicature Act {). Where two persons were owners of a ship in unequal propor- tions as tenants in common, A being the owner of a fourth part, and tho plaintiff of the remaining three-fourths, and tho former brought an action against the defendants, the owners of another ship, for wrongfully running down and injuring the vessel in which they were mutually interested, and the defendants omitted to plead the non-joinder of the other part-owner in abatement, and A had judgment, and obtained full satisfaction for all the damage that he had sustained to his share of llie ship, and afterwards the plaintiff, the owner of the rciaining three-fourths of the ship, sued the same defendants for the damage ho bad sustained, .xnd the defendants pleaded the non- joinder of A in abatement, and the plaintiff then set forth in his replication the proceedings in the former action, it was held that, «s the other part-owner had already received satisfaction, he could not be entitled to any part of the damages to bo recovered in that action, and that he need not, consequently, be joined as a plaintiff (c). llcmcdi/ by action — II unhand ami wife. — Formerly it was neces- sary in actions for the recovery of damages for personal wrong or violence done to a married woman, that the husband and wife should be joined as plaintiffs, where the action would survive to her on the death of her hus])and ; but, since the coming into operation of the Married "Women's Property Act, 1882, a married woman is as capable of suing as though she were a feme sole, and all damages and costs recovered by her are her separate property, and there is no need for joining her husband with her as a (y) Hare v. Cek-j, Cro. Eliz. 143. Some V. Banvish, Cro. Jac. 231. (c) Bao. Abr., Joint-tenantB, &c., K. (a) Order XVI. r. 1. (A) Booth V. Briscoe, 2 Q. B. I). 496. Govt V. Botniey, 17 Q. B. B. 025. (c) Sedgworth v. Overend, 7 T. R. 280. Bloxam v. Hubbard, 6 East, 420. ill '¥ V I' 4l-> (IS m 7 80 OF RKMEDIKS. [chap. IV. " for it 's po nioel •' JliQ fii acted f ;>' their ^■■' .'!■ ^ than 1) j'. assessed eani) f/'. 78 plaintiff (d) . It would appeal- from tho Act that if the wife elects not to sue for a tort committed against hor, her husband cannot sue in her stead. Rcmcdij hif action — Damages. — In actions of tort a greater latitude is allowed by tlio court to a jury in the assessment of damages than is allowed in actions of contract {(•). " Tho damages must be excessive and outrageous to warrant a now trial " (./') ; i 2xpected that a jury will measui'o their verdict i. " jf contract" {(j). .1 1: "t .1 general interfere with the damages, imless iiv 'leded from some mistake, or the jury have ■ si. .ster feeling, and tho judge is dissatisfied with Ii the jury give the plaintiff more damages ,'n showing he ought to recover, tho damages so be recovered (/). As against a manifest wrong-doer a jury is justified in making the strongest presumptions, so that, if an article of value, such as a diamond necklace, has been taken away, and pai-t of it is traced to tlie possession of the defendant, the jury may reasonably infer that the whole thing has come into bis hands, and give damages accordingly (/.). Where tlie plaintiff, by bis own doaling.> and acts, renders the nature of liis interest in the property and the extent of the damages altogether doiibtf al, jie may vacate his whole claim, or destroy his right to more than nominal damages (/). Remcdi/ by action — Special damaycs. — All damages Avhich ordi- narily and in the natural course of tilings have resulted, from the ofnnmission of the wrongful net, are recoveinlilf iin). In an adinn for brpaKilijf iiimI entering the plaintiff's dwelling- lioiiHc, and assaulling \\\\(\ beating bini, T^ord Ell enborougb allowed the plaililiff to give jtl (!vl(|f'm'() that his wife was so terrified by the conduf'l of the defendalil Hint she was immediately taken ill and died soon afterwards, not as a substantive ground of damage, but for llio purpoKo of showing how outrageous and violent had linnu tho conduct of the delendaut (»). "But I entertain con- sljerablo doubt," observes Pollock, C. B., " whether a person who is guilty of negligence is responsible for all the ccr 11, J., H'lltiaiiis v. Ciirrie, 1 C. B. 84S. i'abrUjas v. Moatipi. 2 W. Bl. 9 J8. (A) Wallinqhd v. Wood, C. P. Nov. 8th, l-WiO. IWHlon v. South W»les Rail. Co., 27 L. J., Ex. 355. (i) Hamblelon v. Vecre, 2 Wms. Saund. 170. (A-) Mortimer v. Cradock, 12 L. J., C. P. 166. (/) rrinah v. Taylor, 2 Taunt. 150. (»i) Pollock, 0. B,, Itigby v. ITeioilt, 5 Exch. 242. Workimu v. Great Northern Mail. Co., a2 L. J., Q. B. 279. Gilbert- au,, . . Richardson, 5 C. B. 502. («) Huxley v. Berg, 1 Stark. 98. Bracegirdle v. Orford, 2 M. & S. 77. SECT. III.] ACTION. 81 79 mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated " (o). Remedy by action — Costs of fcyal proccediuys. — In an action for running down a ship, in which it appeared that the plaintiff had been obliged, in consequence of the injury, to employ a steam-tug, the owners of which demanded 1601. for salvage, and commenced a suit in the Admiralty Court against the plaintiff, who paid 201., and the court ultimately decreed the payment of 45/., with costs, to the salvors, and the plaintiff sought to recover these costs as part of the damage ho had sustained, it was hold that the proper ques- tion for the jury was, whether the plaintiff, in paying only 201. into court, and risking the costs of the action, had pursued the course which a prudent and reasonable man would take in his own case, and that, if the jury thought ho had, the costs of the suit might be recovered (y;) ; but "no person has a right to inflame his own account against another by incurring expenses in an unrighteous resistance to an action which he cannot defend with any prospect of success "(y). If the costs have been taxed, the taxed costs only can be recovered (/•). If the costs incurred in legal proceedings are not part of the consequoDces of the wrong done (.s), or if they arc the remote, unexpected, and unusual consequence of the wrong such as costs incurred in upholding a defence which is manifestly wholly unten- able (/), they are not recoverable («). The expense incurred by a plaintiff in consulting a solicitor and obtaining a legal opinion upon the validity of his claim, is not reco- verable as part of the damages. " Parties must do what they think is right ; and the expense of getting the experience of attorneys to advise is not to be repaid by tlie other party. Nothing of that sort can be allowed in damages ; and everything of that nature that a plaintiff is entitled to will be allowed in the taxation of costs" (,/■). licntrdy by action — Medical expenses. — Where the plaintiff had been wounded by the negligence of the defendant in the manage- ment of a gun, and had employed a surgeon and physician for the cure of the injury he had sustained. Lord Ellenborough told the jury, that as to the surgeon's bill they were to consider the amount (o) Grrcuhiud v. Chaplin, ;') Excli. 248. But see Smith v. L. S; S. IF. Rail. Co., L. R., GC. P. K; 10 L. J., C. P. 21. [p) Tindal v. Brll, 11 M. & W. 22H. Moro-h-niawhy. inhoii, L. R., 8 C. P. 227; 42 L. J., C. P. 70. {q) L(]. Denmun, C. J., Short v. Kallo- wai/, 11 Ad. & E. 31. ()■) Grace v. Morr/aii, 2 Bing. N. C. 534; 2 a.', 793. But see per Martin, B., in Hoivard v. Loveqrove, L. B., 6 Ex. 4.5; 40 L. J., Ex. 13". (.v) Ilol/virai/ V. TiirtiiT, 6 Q. B. 928. (t) lioiiuch'ni V. Fulkhiiid Islands Co., 17 C. B., N. S. 1 ; 54 L. J., C. P. 34. {«) I'oir V. Dacis, 1 B. & S. 220 ; 30 L. J . , Q. B. 25C. Uichardnon v. Dunn, 8 C. B., N. S. G55 ; 30 L. .T., C. P. 44. I^a) Clare v. Mai/wrd, 7 C. & P. 743. 4»l 82 OF UEMEDIES. [chap. IV. !!;.- I ^i I t{ ;:l 80 as paid l)y tho plaintiff, since the surgeon could compel tlio pay- luont of it 08 a legal debt (//) . Rcmcdif by (icfion—Prospcctii'C daimtgen. — Althougli a plaintiff is not to be componsntod for uncertain and doubtful consequences which may never ensue, yet ho is entitled to compensation for losses which will "almost to a certainty happen." The jury may take into their consideration, in making up their minds on tho damages, losses which Avill in all probability be sustained by tlio plaintiff; for "when tlie cause of action is complete, when tlio whole thing has but one neck, and that neck lias been cut off by the act of the defendant, it would be most mischievous to say — it would be increasing litigation to say — you shall not have all you are entitled to in your first action, but you shall be driven to bring a second, a third, or a fourth action for tho recovery of your damages" {z). In all cases of serious assault the jury should take into their consideration, in assessing the damages, the probable future injury that will result to the plaintiff from the act of violence perpetrated by the defendant ; for the damages, when given, are taken to embrace all the injurious consequences of the wrongful act, un- known as well as known, Avhich may arise hereafter, as well as those which have arisen, so that the right of action is satisfied by one recovery. Thus, where tho plaintiff had received a blow on tlio liead, and sustained little apparent injury, and recovered small damngos, niid afterwards, and in consequence of tho blow, a l)ortion of liis skull came away, and it then appeared that tho skull had been fractured, and ho then brought a second action, which was attempted to be supported on the ground that the fonner recovery was for a mere battery and this for mailicm, it was held that no action lay, for there was but one blow, and that was tho cause of action in both suits, and not the consequences. And tho distinction was pointed out betAveen this case and one of con- tinuing nuisance, where each continuance is a fresh nuisance {a). No fresh action, therefore, arises by reason of subsequent new damage resulting from the Avrongful act, if the act itself was actionable ; for, if the action was brought, all the damages which he ever could recover for that injury could be recovered by the plaintiff in that action if he succeeded {b). In estimating the damages in an action for a libel against a trader, the jury may take into consideration the prospective injury (j/) Dixon V. Bell, 1 Stark. 289. looaemore v. Radford, 9 M. & W. 657. Spark V. Ihslop, 1 El. & El. 563 ; 28 L. J., Q. B. 197. (z) Best, C. J., Richardson v. Mellish, 2 Bing. 240. IMsoU v. Slallebrass, 11 Ad. &E. 301. (a) Fetter v. Real, 1 Ld. Raym. 339, 92; 1 Salk. 11. (i) Coleridge, J., Ronomi v. Rack- house, 27 L. J., Q. B. 390. SECT. III.] ACTION. 88 81 whiclx will probably accrue to the trader from the publication of the libel (c). I( has bcou said that the damage sustained at the time of the coninionceraont of the action is all that the plaintiff can recover, and that the jury cannot take into account the pro- spective injury; "but it appears to mo," observes Bosanquct, J., "that the jury wore warranted in proportioning the damages to the amount of injury that would natm-ally result from the act of the defendant, though it might not affect him imtil a subsequent period" {(f). And the jury may, it sooms, give damages for the mental suffering arising from the apprehension of the future consequences of the publication of the libel (e). In an action for injury to the plaintiff's land and buildings, by removal of support through mining operations carried on by tho defendant, it was held that damage was recoverable in tho action for a fresh subsidence occumng fourteen years after a judgment recovered for tho original subsidence (./'). Remcihj hij action — Exemplar ij and vindictive damages. — In all cases of malicious injuries and trespasses accompanied by personal insult, or oppressive and cruel conduct, juries are told to give what are called exemplary damages, although the actual personal injviry, measured by any pecuniary standard, may be but small. "It tends," observes Heath, J., " to prevent the practice of duel- ling, if juries are permitted to punish insult by exemplary damages. I remember a case where a jury gave 500/. damages for knocking a man's hat off, and tho court refused a new trial" (r/). "Where," observes Gibbs, C. J., "a man is dis- posed to disregard every principle which actuates the conduct of a gentleman, what is to restrain him except large damages? " (//). So, where an action was brought by tho plaintiff for tho seduction of his daughter, and damages were recovered, and a motion for a new trial Avas grounded on circumstances showing the damages to bo excessive, Wilmot, C. J., stated that " actions for seduction oi-e brought for example's sake ; and although the plaintiff's loss in this case may not really amount to the value of 20s., yet the jury have done ri^ht in giving liberal damages " (<). Wherever the wrong or injury is of a grievous nature, done {c) Gregory v. WiUiams, 1 C. & K. 5C8. {d) Ingram v. Lawsoii, 6 Bing. N. C. 212 ; 8 8c. 477. (c) Goslin V. Corrg, 7 M. & G. 342 ; 8 Sc. N. tt. 25. (/) Darleg Main Colliery Co. v. Mit- chell, ante, p. 57. Lamb v. Walker, 3 Q. B. D. 389 ; 47 L. J., Q. B. 451. (a) Merest v. Harvey, 5 Taunt. 442. Th) Merest v. Uarvei/, 6 Taunt. 442. (f) Tullidge v. Wade, 3 Wila. 18. Huckle V. Money, 2 WiU. 206. In some of tho states, it is held, following tho rule laid down in a New Hampshire case, that, whore an action is brought for an injury which results from an act which is also punishable criminally, ex- emplary damages are not recoverable: Fay V. Parker, 53 N. H. 342 ; Lucas v. Fliiiit, 35 Iowa, 9 ; Smith v. rittsbitrgh, %c. It. R. Co., 23 Ohio St. 10. But this doctrine has no foundation in principle, and is not generally accepted : Iloadley V. Watson, 45 Vt. 239. ! I g2 84 OF REMEDIES. [CIIAP. IV. with a high hand, or is aooonipauiod with a doliborato intention to injure, or with words of contumely and abuso, the jury are authorized in giving, and may bo told to give, vindictive 82 damagt'S (A). Thus, where, in an action against a colonel of militia for ordering tho plaintiff, a common soldier, to bo whipped, it appeared that the colonel had acted unjustifiably and illegally, and out of more spite and revenge, and the jury gave l^>Of. damages, and a new trial was moved for on tho ground that the man appeaiHid to have been moderately jmnished, and not much hurt, and (hat tho damages were disproportioned to his sufferingf*, the court refused tho ai)plication, because the man was scandalized and disgraced by such a punishment (/). Wherever injury has been done to tho fair fame, reputation, or character of the plaintiff, juries are generally invited to give, and are justified in giving, such a sum as marks their sense of tho maliciousness or recklessness of the wrong-door in olfering the insult and injtiry, their belief in the groundlessness of the charge, and their desire to vindicate tho character of the plaintiff (m). Thus, in all actions of libel and slander, where the object of tho plaintiff is to clear himself from aspersions that have been east upou liim, the jury are in the habit of giving large damagos, with a view of vindicating the plaintiff's character from the as^/. rsions cast upon it. And in an action for oral slander, whore tho cause of action rests upon special damage alleged and proved, the jury, in assessing their damagos, are not limited to the amount of special damage proved, but may give their verdict for general damages, which would in their judgment be the natural and probable result of it. They must, however, exclude from their consideration damages resulting from the repetition of the slander bj' third parties who had no authority from tho defendant to repeat it (h). Remedy hij action — Mitigation of damages. — Circumstincos which fall short of a complete justification, and do not amouri' to a defence to the action, may be given in evidence in mitigation of damages, as establishing a less aggravated case against the defend- ant (o). Thus, in an action for an assault and battery, the circum- stances which led to the assault are admissible in evidence in reduction of the damages {p). In an action for assa^alting the plaintiff and seizing his goods it may be shown in mitigation of damages that the defendant was {k) Thomas v. Harrit, 27 L. J., Ex. 353. WiUes, J., BeU v. Midlaml Jiail. Co., 10 0. B., N. S. 307 ; 30 L. J., C. P. 281. Emhkn v. Myers, 6 H. & N. 64 ; 30L. J., Ex. 71. (I) Benson v. Frederick, 3 Burr. 1847. im) Doe V. Filtiter, 13 M. & W. 51. («) Dixon V. Smith, 6 H. & N. 450 ; 29 L. J., Ex. 125. £vaus v. Hurries, I H. & N. 251 ; 26 L J., Ex. 31. Allsop V. Allsop, o H. & N. 534 ; 29 L. J., Ex. 315. (o) Tindal, C. J., Perkins v. Vuughon, 4 M. & G. 989 ; 7 Sc. N. R. 886. Speck V. Thil/ips, 5 M. & W. 281 ; 7 Dowl. 470. ( p) Liiifurd V. lake, 3 H. & N. 276 ; 27 L. J., Ex. 334. SECT. III.] ACTION. 85 a custom-houpo ofllcor, and that tho plaintif! going away from a vosspI with goods liable to duty, without paying tho duty, 83 wlioroupon tho defendant detained him and took possossion of hiH ^oods (y). WIkto tho defeiuhint gavo tlio i)laintiff in charge for stealing fat, and it appeared that there was no legal ovidoneo of any feh)ny, hui tlio defendant lioiid Jii/c helieved that his fat had been stolen, and tliat tho plaintiff liad Htolen it, and there was reasonable ground for his belief, Uest, C, J., allowed tho grounds of suspioion to be ;i^iven in evidenoe in mitigation of damages (/•). Tn an action lor libel or slander, whore the plaintiff claims damagOH on tho ground of tlie dispai '^^oment of his character, general evidenoe of tho plaintiff's bail character jirior to tho publication of tho libel is admlssiblo in evidence, in reduction of the damages (.s). Where tlie defendant wrote a novel, and the plaintiff in review- ing it went beyond tho bounds of fair criticism and libelled tho defendant and his family, and the defendant thrashed tho plaintiff, who brought an action for tho assault, it was held that tho libel might be given in evidence in mitigation of damages, although it was the subject of another action by the defendant against the plaintiff; but the jury were told that, as the defendant had chosen his remedy for the libel by his action for damages, ho could not fairly bo allowed to take much advantage of it in mitigation of damngcs in the action for tho assault (f). AV'hero the plaintiff painted a picture, which ho designated " The Beauty and the Beast," and caused it to bo exhibited in Pall Mall for money, where crowds went to see it, and the defendant went and hacked the picture in pieces, and the plaintiff claimed the full value of the picture and compensation for the loss of the exhibition, tho defendant was permitted to show in mitigation of damages that the picture was a scandalous libel upon tho defen- dant's brother and sister, and the exhibition of it a public nuisaiice'. " If," observes Lord Ellonborough, " tliis picture was a libel upon tho persons introduced into it, tlie law cannot consider it valuable as a picture. Upon an application to the Lord Chancellor, he would have granted an injunction against its exhibition ; and the plaintiff was both civilly and criminally liable for having exhibited it. The jury, therefore, in assessing the damages must not con- sider this as a work of art, but must award the plaintiff merely the value of the canvas and paint which formed its component parts " (»). ('/) Ld. Denman, C. J., 7)c Goiidoiiiii V. Lctvis, 10 Ad. & E. 120. (>■) C/iinn V. Morris, 2 C. & P. 304. (s) Keilw. 203 b. Dennis \. raiclin;/, Vin. Abr., Evidence (1 b), pi. 16. (t) Fraser v. Berkeley, 7 C & P. 625. [n) Dh ISost V. Lereaford, 2 C'umpb. 511. 'M s^. ^ ^ 'W^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 1.25 ■" 14.0 2.2 12.0 U 11.6 V ^^y # HiotograiAiic Sciences Corporation 23 WEST MAIN STRIET V»BSTit,N.Y. I4SP0 (716) •72-4503 ' .^k. ^ 1 o^ 4 86 OF REMEDIES. [chap. IV. In actions for damages for seizing goods under irregular or void process, it is no ground for mitigation of damages that a 84 regular judgment had been recovered against the plaintiff. Parties arc not to extort even what is justly due by the improper execution of a -warrant; and, wherever goods are seized under process in a place to which the process does not run, the full value of the goods and all provable damage are recoverable {x). Rcmcdi/ hij action — Danutrjcs when the plaintiff is insured against hss, or has rccci rod full indeniniti/ under a contract of insurance. — The recovery by the plaintiff of full compensation for the loss or damage his property lias sustained under a contract with insurers, cannot be given in evidence in reduction of damages in an action against the wrong-doer who lias done the mischief. The plaintiff's contract with thu underwriters or insurers is res inter alios acta, of Avliich the defendant cannot avail himself. If it were not so, the wrong-doer would take the benefit of a policy of insurance Avith- out paying the premium (y). Thus, in an action for an injury done to the plaintiff's vessel from negligence in running it down at sea, tlie fact of the plaintiff's having received from the under- writers the amount of the loss was held to be no answer to the plaintiff's claim for damages (2). So, in an action for injuries caused by the defendant's negligence, a sum received by the plaintiff on an accidental insurance policy cannot be taken into account in reduction of damages («). A plaintiff, however, who has received a full indemnity for his loss under a contract of insurance, and has afterwards recovered compensation in an action for damages against the wrong-doer, is not entitled to a double satisfaction ; but, as soon as he has received from the underwriter or insurer the amount for which he has injured, he becomes a trustee for the latter in respect of any com ensation paid or pay- able by the wrong-doer, and if? bound to hand over to the insurer whatever money he receives from the wrong-doer over and above the actual loss he has sustained, after taking into account the amount he has received under the contract of insurance. The insurer, moreover, who has paid the loss, is entitled to sue in the name of the insured, for the purpose of recovering from the wrong- doer full compensation for the injury (A). Thus, where certain insurers had paid the amount of the loss occasioned by the demoli- tion of a house by rioters, it was held that they might maintain an action in the name of the assured against the himdred, under the statute, to recover compensation for the injury (c). But the (i) Soucll V. Champion, 6 Ad. & E. 407. Edmoiidson v. Nuttall, 17 C. B., N. S. 280; 34 L. J., C. P. 102. ■ Yates V. Whytc, 4 Bii.ff. N. C. 289 ; 5 Sc. C40. (a) Bradburn v. Great Western Rail. Co., L. R., 10 Ex. 1 ; 44 L. J., Ex. 9. {b) Randal v. Cockran, 1 Ves. sen. 97. {c\ Mason v. Sainsbiiry, 3 Douir. 64. {0. (.-) Yates V. Whyte, 4 Biug. N. C. 272 ; & R. 489 5 Sc. G40. Clark V. Ulything, 2 B. & C. 254 ; 3 D. m SECT. III.] ACTION. 87 85 right of the insurer is merely to make such claim for damages as the insured could have made; and, when the latter cannot assert a claim for damages against the wrong-doer, neither can the insurer do so(r/). Remedy by action — Double and treble damages. —Variovia statutes give douhle and treble damages against persons who violate their provisions (e). In these cases, it should be ascertained at the trial whether the amount of damage assessed by the jury is the actu.^^ damage sustained, or the statutory damage of double or treble the actual damage ; for, if the jury assess the damages generally at a certain sum, and there is nothing to show that the jury have found only the single value, the court is bound to conclude that the jmy liave taken into their consideration and have assessed all the damages that -the plaintiff is entitled to recover. But, if the jury iind the actual or single damage expressly, then the plaintilf may come into court to have the judgment entered up for double or treble value according to the statute (/). licmedy by action — JExcessive damages. — " I should be sorry to say," observes Lord Mansfield, " that in cases of personal torts, no new trial should ever be granted for damages which manifestly show the jury to have been actuated by passion, partiality, or prejudice. But it is not to be done without very strong grounds indeed, and such as caiTy internal evidence of intemperance in the minds of the jury "(17). "I always have felt that it is extremely difficult to interfere, and say "^/hen damages are too largo. You may take twenty jmies, and every one of them will differ from 2,000/. down to 200/. Nevertheless it is now well acknowledged in all the courts of Westminster Hall, that if the damages are clearly too large, the courts will send the inquiry to another jury. Where they interfere, they always go into all the circumstances, put themselves in the situation of the plaintiff and defendant, and examine closely into all their conduct" {h). {d) Simpson v. T/ioiiipsoii , L. E., 3 App. Cas. 270. Mid/and Insurnncc Co. v. Smith, G Q. B. D. 5C1 ; 50 L. J., Q. B. 320. [e) Such arc tLo statutes prohibiting and punishing a forcible entry (8 Hen. C, c. C ; Dyer, 214 a) ; or the improper im- pounding of a distress (1 & 2 Ph. & M. c. 12, 8. 1) ; or the rescuing a distress (2 W. & M., Sess. 1, c. 5, s. 4)_; or the selling a distress when no rent is owing Hb. s. 6). (/) lialduyn v. Girries, Godb. 245. Sand/ord v. Clarke, 2 Chitt. 352. JiuMe V. JJcwes, 4 B. & C. 154. Baker v. Brown, 2 M. & W. 199. When the jury have by their verdict found only the single damage, the application to the court to increase the damages to the statutoiy amount should, it seems, bo made within four days of the return of the jury process. Musters v. I'arris, 1 C B. 716. ((/) Gilbert v. llurtenshaiv, Cowp. 230; Lott't, 771. Britton v. South Wales Kail. Co., 27 L. J., Ex. 355. The instances in which our courts have set aside verdicts upon the ground that they were exces- sive are numerous, but the principle upon which they act is that stated in the text : see Wood's Railway Law, p. 1266, vol. 2. (/() Eewlctt V. Cruchky, 6 Taunt. 281. Pym V. Great North''rn Rail. Co., 4 B. & S. 396 ; 32 L. J., Q. B. 377. i' 88 OF REMEDIES. [chap. IV. "I think further," observes Ashhiirst, J., "that before the 86 court can set a verdict aside merely for excess of damages, they ought to bo able to ascertain some rule by which the damages are to be measured, and to which the facts may be applied. Where damages depend in anywise upon calculation, the court have some medium to direct them by which they are enabled to correct any mistake of the jury. But, where there is no such light to guide them, where the damages depend upon mere sentiment and opinion, the court have no line to go by ; and, therefore, it would be very dangerous for us to interfere. We have no right in such a case to set up our own judgment against that of the jury, to which the constitution has referred the decision of tho question of damages " (i). But, when there is any rule or guidance for tho assessment of the damages, and the jury have not been properly directed on tho point, or have disregarded the ruling of the judge, and have manifestly given excessive damages, the court will grant a new trial. So, where the plaintiff has himself fixed the amount of damage and received it, and the jury give him a sum alto- gether disproportionate to his own estimate, the court will inter- pose and grant a new trial, unless the plaintiff consents to reduce the damages to a reasonable amount. Thus, where an impor- tunate beggar having refused to quit the defendant's premises, the defendant ordered him to be apprehended by a constable, which was done, and he remained in custody one night at an inn, and was brought before the defendant the following morning, when he demanded compensation, and the defendant told him he might have two sovereigns or go before a justice, and the plaintiff consented to take the money, but said at the same time that he must have something for the keep of his horse, and the defendant then gave him half-a-crown, and directed the butler to give liim some refreshment, and the butler did so, and the plaintiff went away, and then brought an action against the defendant, and, there being no plea of accord and satisfaction on the record, re- covered a verdict with damages to tho amount of 100/., it was held that the damages were enormous and disproportionate, on account of the limit which the plaintiff himself had put on his demand in the first instance. " It seems to me," observes Tindal, C. J., "that, if accord and satisfaction had been pleaded, it would have been a bar to the action. A verdict for 100/. is far beyond the merits, as we cannot but see, on the evidence of the plaintiff himself, who has set the measure on his own damages" (k). Wherever the facts show that the plaintiff has taken upon (i) BuberUy v. Gunning, 4 T. R. 656. [k) Piicc v. Severn, 7 Bing. 319. ' I! SECT. III.] ACTION. 89 87 himself to avenge his own wrongs, and to retaliate upon the defendant, these facts ought to be taken into consideration by the jury in reduction of damages; and, if the jury have not been directed to do this, or have disregarded the direction, and have given excessive damages, the court will grant a new trial. Where an action was brought by a servant for an assault alleged to havo been committed upon him by his master, and it appeared that the master had given the servant a slight blow for impertinent behaviour, whereupon the servant turned upon his master and gave him a violent thrashing, and then brought an action for the original assault upon himself, and recovered 40/. damages, the court granted a new trial (/). Where also the plaintiff himself has been guilty of misconduct in the matter of his complaint, and does not como into court with clean hands and a fair case for damages, and the circumstance has been overlooked by the jury, and excessive and disproportionate damages have been given, the court will allow the matter to be revised by another jury(;«). And, when a defendant against whom excessive damages havo been recovered appears to have been acting in the discharge of some duty, or in the intended execution of an Act of Parliament, or in the homjide exercise of some power or authority which he supposed that he possessed, and intended to act right, but b^ mistake did wrong, and tho damageo are manifestly out of all proportion to the injury actually sustained, the court will interfere and grant a new trial for the purpose of confining the damages within moderate and reasonable limits («). Rcmcdij by action — Luukquate damages. — A new trial will some- times be granted in actions ex delicto, where the damages are unreasonably small, as, for instance, where the smallness of the damages shows that the jury have made a compromise, and, instead of deciding the issue submitted to them of guilty or not guilty, have agreed to find for the plaintiff for nominal damages only (o), or that they must have omitted to take into consideration some of the elements of damage {})). Thus, where it was proved that by reason of the defendant's negligence in driving an omnibus the plaintiff was run over and his thigh broken, and that the doctor's bill for setting his leg and attending upon him came to 10/. 5s. Qd., and the jury gave the plaintiff a verdict with a farthing damages, the court ordered a new trial {q). So, where in an action of slander (0 Jo>m V. Sparrow, 5 T. R. 267. (m) BuUer, J., in Buberley v. Gunning, 4 T. R. 668. («) FAiot V. Allen, 1 C. B. 40. (o) Kelly V. Sherlock, L. R., 1 Q. B. 697 ; 36 L. J., Q. B. 209. {p) rhilUps V. L. ^ S. TF. Sail. Co., 5 Q. B. D. 78 ; 48 L. J., Q. B. 673. iq) Armytage v. Haley, 4 Q. B. 918. Where tho damages given are clearly- inadequate to compensate for the injury, the court will set it aside. 11 I I " 90 OF REMEDIES. [chap. IV. |i 88 the words complained of were grossly slanderous, and calculated, if believed, to be extremely injurious to the character of the plain- tiff, and there was no evidence that he had done anything to pro- voke or give the least ground for the slanderous imputation, the court, at the instance of the plaintiff, set aside a verdict found for him with a farthing damages, and ordered a new trial (/•). But, where there is no standard for estimating the daniages, and tho court are unable to lay down any rule for the guidance of tho jury, the court will not grant a new trial, although they may think the damages much too small (s). llemah/ by action — Orders for deHtrnj of the specif c thing de- tained. — In the old action of detinue, the defendant had tho option of retaining possession of the chrttel detained, paying to the plain- tiff the simi at which the jury thought proper to assess its value {t). "The judgment," observes Frowike, C. J., "is, that the plaintiff shall recover the goods or their value ; then shall issue a writ to tho sheriff to distrain the defendant to deliver the goods, and, if ho will not, then the value as it is taxed by the inquisition. And so it is in the election of the defendant to deliver to the plaintiff the goods or tho value" (»). This option on the part of the defen- dant being felt to operate as a hardship upon tho plaintiff in many cases, it was taken away by the Common Law Procedure Act, 1854, which enacted, s. 78, that the court or a judge should have power, if they or he should see fit so to do, upon the appli- cation of tho plaintiff in any action for the detention of any chattel, to order that execution should issue for the return of the chattel detained, without giving the defendant tho option of retaining such chattel upon paying the value assessed, and, if the chattf4 could not be found, and unless the court or a judge should otherwise order, the sheriff should distrain the defendant by all his lands and chattels in the sheriff's baili^vick, till the defendant should render such chattel, or, at the option of the plaintiff, that he should cause to be made of the defendant's goods the assessed value of such chattel ; provided that the plaintiff shoTild, either by the same or a separate wiit of execution, be entitled to have mado of tho defendant's goods the damages, costs, and interest in such action. And now by the ncAV orders under the Judicature Acts the above provisions are substantially re-enacted [x). Eemedy by action — Aiiscssmcnt of value. — The value of the thing detained should be assessed at the highest price it bore in the ()•) Fahoi V. Stanford, L. R., 10 Q. B. 54 ; 44 L. J., Q. B. 7. is) Strafford's case, cited 4 T. R. 655. (t) Fhillips V. Jones, 15 Q. B. 867. {><) Keilw. 64 b; Telv. 71. (.!•) Rules of the Supreme Court, Order XLVIII., rr. 1, 2. SECT. III.] ACTION. 91 89 market at any time during the period of its detention (y) ; and, where the value is doubtful, and the defendant might have returned it if he had thought fit, every fair presumption and inference should be made in favour of the owner of the property seeking its restitution, and against the wrong-doer who has detained it from him. But, where the value of the article lies peculiarly within the knowledge of the plaintiff, he should prove the value of it, in order to enable the jury to make a correct assessment of the damages. Thus, when he sues for the detention of letters and documents, he should prove the nature of the letters, and of what use they were to him(c). If he sues for the detaining of title-deeds, he should prove the value of the property to which they refer, and that the deeds are essential to the establishment of the title, and he will then be entitled to have the damages assessed at the value of the estate («). Itemedij by action — Asseswicnt of damages where the whole, or part, of the goods have been delivered iij) after action. — If all or any of the goods have been delivered up after suit, the plaintiff may recover damages for their detention if he has sustained any ; and, for the residue not delivered up, ho may have the usual writ of delivery (b). In an action of detinue for several goods, which were collectively valued at one sum in the declaration and by the jury, it was held that, if all the goods were not given up — if one article was with- held — the defendant was liable for the value of all ; but in an action for detaining two things, the defendant may before verdict give up one, and plead as to the other (c). If there is a good defence to part of the goods, by reason that the defendant was always ready to deliver them, the jury must assess the value of the residue of the goods, and damages for the detention, but none as to the goods delivered up. If there was no defence as to them, then the jury must assess the value of the residue of the goods, and damages for the prior detention of those that were delivered up {d). Whenever the defendant has wrongfully detained the plaintiff's chattels, or has wrongfully withheld from him the means of obtaining possession of them, he is answerable for all the loss naturally resulting in the ordinary course of things from his wrongful act (e) . In an action for detaining railway-scrip, which had been delivered up to the plaintiff after the commencement of {y) Archer v. WilUaivs, 2 C. & K. 27. Barrow v. Arnaud, 8 Q. B. 609. Post, p. 90. (z) Anderson v. Fasaman, 7 C. & P. 197. (a) Roll. Abr. Detinue, E. {b) Crossfield v. Such, 8 Exch. 166, 828 ; 22 L. J., Ex. 65. (c) Bro. Abr. Tendeb, pi. 39. (d) Crossfield v. Such, 8 Exch. 165, 828 ; 22 L. J., Ex. 65. Pawly v. Holli/, 2 W. Bl. 853. («) Barrow v. Arnaud, 8 Q. B. 610. If 1i "i: )i ■ ■■ ■ 1): iJl ■ Its- ' If Hl- III 02 OF REMEDIES, [CIIAP. IV. 90 tlio action, under a judge's order, it was held tliat the judge was warranted in directing the jury at the trial, that in estimating the damages they might take into consideration the difference in the valuo of the scrip at tlio time of the demand and the time of its delivery to tlie plaintiff under the judge's order (/). Where railway-scrip, shares or stock have been unlawfully detained after demand, and given up after the commencement of the action, the measure of damages is the highest sum the scrip could have been sold for during the period of its detention, deducting the value of it at the time it was received back by the plaintiff. The wrong- doer cannot get off with less than that, and may have to pay greater damages {g). A defendant who has wrongfully detained the plaintiff's horse cannot make tho expense of the horse's keep, while he was wrong- fully detained, a groiuid for reduction of the damages (/i). Remedy by injioictiou — W/ieu ff ranted. — An injunction condi- tional or otherwise will be granted at the discretion of the court, restraining a defendant from the commission, repetition, or con- tinuance, of a wrongful act, and enforceable, in case of disobedience, by attachment (/) . The object of the interference by injunction is to prevent the infringement or disturbance of a right (J), or for the purpose of better enforcing rights, or preventing mischief until such rights have been ascertained (A-) . An injunction may be granted to prevent the continuance of a nuisance (/), or to restrain the infringement of patent rights and copyright {m), or the wrongful sale or detention of a chattel (n) , or the publication, to the injury of the plaintiff's trade, of matter which a jury has found to be libellous (o) . The acts of several persons may together constitute a nuisance which the court will restrain, although the damage occasioned by the acts of any one, if taken alone, would be inappreciable {])). The granting of an injunction is to some extent discretionary, but must be exercised on settled legal principles {j}p) ; and, gene- rally speaking, it will not be granted where the injury complained of can be sufficiently compensated in damages. Thus, in the case of an obstruction to ancient lights, i,he court has frequently granted an inquiry as to damages in lieu of an injunction. But, where, as I Iff (/) WU'iams v. Archer, 6 C. B. 318. Barrow v. Anmiid, 8 Q. B. 609. (o) Archer v. Williams, 2 C. & K. 27. (h) Warmer v. Biffffs, 2 C. & K. 36. (i) As to gfranting an injunction, see Judicature Act, 1873, s. 25 (8). The writ of injunction is abolished, and judgment or Older substituted, Order L., r. 11. U) Herr v. Union Bank, 2 Giff. 686. {k) Saunders v. Smith, 3 Myl. & Or. 729. (f) Post, p. 391. {«() Post, pp. 561, 572. In) Post, p. 514. (o) Saxbij V. Fasterbrook, 3 C. P. D. 339. (p) Thorpe v. Brumftt, L. E., 8 Ch. 650. {pp) North London Pail. Co. v. Great Northern Rail. Co., 11 Q. B. D. 30. SECT. III.] ACTION. 93 91 in the case of the pollution of Avater, the injury varies from day to Jay, and may cease or may increase at any time, and where, there- fore, damages would only represent the past injury, the court will not refuse an injunction, oven whore the actual damage is only slight (y). But it is not every trifling damage for which the court will grant an injunction (r). Remedy by iiijunction — In cases of t/ireatcncd injiiri/. — An injunc- tion may ho granted to prevent any threatened or apprehended •waste or trespass, whether Iho person against whom such injunction is sought is or is not in possession under any claim of title or other- wise, or (if out of possession) does or does not claim a right to do the act sought to ho restrained under any colour of title, and whether the estates claimed hy both or either of the parties are legal or equitable (s). The interference of the court is founded on its jurisdiction to give relief in the shape of preventive justice, in order to preserve and make more effectual a legal right, and pro- tect property from that which, if completed, would give a right of action (t). If the party applying is free from blame, and promptly applies for relief, and shows that by the threatened wrong his pro- perty would be so injured that an action for damages would be no adequate redress, an injunction will be granted («). But a plain- tiff who complains, not that an act is an actual violation of his right, but that a threatened or intended act, if carried into effect, will be a violation of the right, must show that such will be an inevitable result. It will not do to say that a violation of the right may be the result. If the act threatened can by any reasonable possibility be done in such a way as not to prejudice the light, it will not be restrained (x). Thus, an injunction will not be granted against the importation or sale of goods which may be used by the persons who purchase them improperly, if others have a right to use them ; and an injunction to restrain the printing or selling of labels, either copies of, or only colourably differing from, labels used by the plaintiff to distinguish the bottles of Eaii de Cologne manufactured by him, was dissolved, on the ground that there were or might be retail buyers of the genuine Ecm de Cologne, who might legitimately use the labels in replacing those damaged on the bottles bought by them of the plaintiff {y). {q) rennington v. Brinsop Hall Coal Co., 5 Ch. D. 769 ; 46 L. J., Oh. 773. ()•) Cooper V. Crahtree, 20 Ch. D. 689 ; 51 L. J., Ch. 544. See Wood on Nui- Bances, chap. 25, where the rules adopted by our courts are utated, and the autho- rities collected. (») The Supreme Court of Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 25 (8). [t) EdehtcH V. Edehten, 1 Do G. J. & S. 185. («) Emperor of Austria v. Bat/, 3 De G. F. & J. 217, 240 ; 30 L. J., Ch. 700. {x) llaincs v. Taylor, 2 Ph. 209, 210. Fattisson v. Gilford, L. E., 18 Eq. 259 ; 43 L. J., Ch. 254. (y) Farina v. Silverlock, 6 De G. M. & G. 214; 26L. J., Ch. 11. 94 OF REMEDIES. [CIIAP. IV. 92 Tho court will not grant an interlocutory injunction before the hearing of tlio cause, unless it is necessary for the protection of property, or tlio prevention of some threatened injury thereto (s) ; nor will it interfere in any case to protect a dry legal right or title, merely because the legal right is infringed (a). llciucdif hij iiijiincfioii — F//ict of lachen ami (khvf in applying for an iiijinicfion. — The court, in the exercise of its discretion with regard to the granting of an injunction, will be influenced by any /ac/ics or delay which may have taken place in the institution of the proceedings (i). Long delny may amount to absolute proof of acquiescence in the act complained of, and will, if unexplained, certainly throw considerable doubt on the reality of tho alleged injury (c). licmcdy hy injuh'iion — Acquiescence precluding a j)laintiff from relief. — A man who lies by while he sees another person expend his capital and bestow his labour upon any work which he claims to have a right to pi event, without giving that person any notice or attempting to interrupt him, and who thus acquiesces in proceedings inconsistent with his own claims, will in vain ask for an injunction, the effect of which would be to render all the expense useless which he voluntarily suffered to be incurred {d). Where there was a parol agreement for the making of a watercourse through the defendant's land, for a certain consideration to be paid to the latter, and the watercourse was made and used for some time, and the parties could not afterwards agree upon tho amount to be paid for the easement, and the defendant then stopped up the watercourse, an injunction was granted to restrain him from interfering with the plaintiff's use of it, and it was referred to the master to ascertain the amount that ought to be paid for the enjoyment of the privilege (e). But it must be readonably clear that the effect of what is acquiesced in will be to injure the right of the person acquiescing ; for, where a man has a right to do a thing, and appears to be doing what he has a right to do, it is not to be assimied that he is going to use his right for an unlawful purpose (/) ; and, if the nature of the act is such that the defendant must have been aware that he was going to do («) Att.-Gen. v. United Kingdom Ekc- tric Telegraph Co., 30 Beav. 287; 31 L. J., Ch. 329. But see Judicature Act, 1873, 8. 25 (8), ante, p. 90. (a) Wandsujorth Board v. London and South Western Bail. Co., 31 L. J., Ch. 866. (i) Bridton v. Beneeke, 12 Beav. 1. Bovill V. Crate, L. R., 1 Eq. 388. (c) War^ V. Regenft Canal Co., 3 De G. & J. 230. Wieks v. Hunt, 1 Johns. 372. (d) Parrott v. Palmer, 3 Myl. & K. 640. Birmingham Canal Co. v. Lloyd, 18 Ves. 615. Catching v. Bassett, 32 Beav. 101 ; 32 L. J., Ch. 286. Maxwell v. Sogg, L. R., 2 Ch. 307 ; 36 L. J., Ch. 433. (c) Devonshire {Duke of) v. Elgin, 14 Beav. 530 ; 20 L. J., Cli. 495. (/) Smith V. Smith, L. R., 20 Eq. 500 ; 44 L. J., Ch. 630. ! SECT. III.] ACTION. 96 93 a wrong, aud took his chance about being disturbed in doing it, lio cannot sot up the ncquioscouco of tho plaintiff as a dofonco {(j). Whore wliat is sought to bo prevented is tho mere repetition of an unlawful act, lapse of time will not bo a bar to tho granting of the injunction. Thus, whore, to an action for an injunction to restrain tho defendant from representing that tho business carried on by him was the same as that carried on by the plaintiff, it was objected that tho plaintiff had known for between two and three years before issuing his writ the facts on which he relied, it was held that this delay was no bar to the action {/t). So, mere delay in taking proceedings after knoAvlcdgo of a piracy, is not in itself such acquiescence as will deprive the plaintiff of his right to an injunction («)• m {ff) Smith V. Smith, supra. (;<) Fullwood V. Fill/wood, 9 Ch. I). 170 ; 47 L. J., Ch. 450. (() Uo//!/ V. Scott, L. E., 18 Eq. 444 ; 43 L. J., Ch. 705. ) 11 ^1 n ^ i Hi I 06 94 ClIArTEU V. OF TOHT-FKAHORS. Joint forf-fedsors. — Whoovor wilfully assists in tho doing of an iinlawful act bocomos nnsweruLlo for all tho couso(iuonce8 of bucU act ; and, when Hcvoral persons havo been jointly :oncerncd in tho commission of a wrongful net, they may in general all bo charged jointly as principals, or the plaintiff may sue any of tho parties upon whom individually a separate trespass attaches {a). If several co-proprietors of a stage-coach intrust the driving of tho coach to one of them, all will bo responsible for injuries caused by his negligent driving {!>) ; and, if two omnibuses are racing, and one of them runs over a man who is crossing tho road and has not time to get out of the way, the injured person lias a remedy against the proprietor of either omnibus (c). If several are jointly bound to perform o duty, they are liable jointly and severally for the failure or refusal to perform it ; and, if it is a duty which tho majority of tho number is bound to perform, those who by their refusal prevent the greater number from concuning are answerable to tho party injured ; that is, all those who constitute tho majority, such majority committing the non-feasance, violate the duty imposed, disobey the law, occasion the injury, and are answerable for it (d). But, where one ship is, by the improper navigation of a second ship, compelled to alter her course, and so does damage to a third ship, the ship which compelled the alteration of course is liable for the damage (d^.^,.v,-.r CHAr. v.] JOINT T()HT-rEA80KS. 07 proceodfl, you cannot, after a judgmont against 7? in trovor, which is unsatisfied, liavo an action against A, either for the conversion, or for money had anil received, to recover tlio value of the goods (//). Where compensation in damages has been claimed for a trespass committed by several persons, and full compensation in damages has been received from one of the co-trespassers, the court will interfere summarily to proven*^^ the piaintiff from seeking the same compensation a second time from another co- trespassor; but, where the injury done is an injury to character from the publication of a libel, tlie court will not interfere in a summary way to prevent the continuance of proceedings against the publisher of the libel, on the ground that damages have been recovered by the plaintiff from another publisher of the same libel, as the nature and extent of the injury in each particular case deptnd upon the extent of the circulation of the libel (/). DanuKjca, where f/icrc are several co-trenpa-sHer-s, — Where several persons have associated themselves together in th^ pursuit of a common object, and tliey all trespass upon the p'aintiil's land in following out the common design, each is anowerable for the whole of the damage done by all. Thus, Avhere, in an action for a trespass by the defendant, with horses, &c., upon the plaintiff's land, it appeared that the defendant was the huntsman of the Berkeley hounds, and that he followed the hounds, accom- panied by a large concourse of persons on foot and on horse- back, over the plaintiff's land, and destroyed the fences, and injured the crops, Lord Ellenborough held that the defendant was answerable for the whole of the damage, and directed the jury not to estimate the damage according to the mischief which the defendant had individually occasioned by his trespass, but according to the aggregate amount of mischief done by him, and Ins co-trespassers, and the hounds (/.). Whenever two persons have so conducted themselves as to be liable to be jointly sued, each is responsible for the injury sustained by their common act. The true criterion of damage in such cases is the whole injury which the plaintiff has sustained from the joint act of all. Where, therefore, two persons have a joint purpose, and thereby make themselves joint-trespassers, and the one beats violently, and the other a little, the real injury is the aggregate of the injury received from both, and each is responsible for all the damage ; but the malignant motive of one party cannot be made a ground of (A) Buckland v. Johtmn, 15 C. B. IGl ; 23 L. J., C. P. !i04. Broicn v. Wootton, Cro. Jac. 73. (») Martin v. Kennedy^ 2 B. & P. 09. (*) Hume V. Oldacre, 1 Stark. 362 ; A. JIamiUon v. Hunt, 14 111. 472 ; Bishop v. Elii, OJohn. (N.Y.) 294; Frittcey. Ftynn, 2 Litt. (Ky.) 240 ; Ellis v. Hoivard, 17 Vt.330; Waterburyv. jrestervelt,9N.Y. 698;Del}ra/ilv.Farker,2Brev.{S.C.)i06. H 98 OF T0MT-FEAS0R8. [chap. V. 96 aggravation of damago against the other, who v/as altogether free from any improper motive (/). Contribution hcticpen joint tort-feasors. — No contribution can be claimed as between joint wrong-doerg. If, therefore, a plaintiff who has recovered judgment against two defendants for a joint trespass, levies tlio whole damages on one of them, that one has no claim for a moiety cf the damages from the othe^' (m). Principal and agent — Liahl/ifi/ of the jmncipal — Express authO' rifi/. — The principal is liable to third persons for the tortious acti of his agent, where ho has expressly authorized or subsequently ratified such acts : for every one who procures the violation of a right to be done by another is as responsible as if he did the act himself. Thus, in violations of o. right to property, whether real or personal, or to personal seciirity, he who procures the wrong to be done is a jcint wrong-doer, and may be sued either alone or jointly with the agent for the wrong done (/(). So, if one person mcites anocher to commit perjury, or forgery, or a nuisance, or to bring a false cnarge or accusat'on, and the accused party is acquitted of the charge, the instigator of the wrongful act is responsible for all its injurious consequences (o). Thus, where the mistress of a wine-shop brought an action against the defendant for procuring a soldier aud others to come into her house with a man dressed in woman's clothes, and there conduct themselves with indecency, and collect a crowd, and raise a cry of " bawdy house," by reason whereof the mob threw stone:, and broke the plaintiff's windows, and damaged and destroyed her furniture, it was held that the defendant was responsible for all the damage sustained by the plaintiff, although he did not himself appear upon the scene, or join in the crj (p). Moreover, he who procures or authorizes an act to be done by another, is responsible for all that the other necessarily does in the execution of his authority. Thus, every person who directs the doing of an act which cannot be done at all without inflicting an injury on a third person, is personally responsible to such third person ( q) ; for, when the mischief is the natural and necGssary result of the doing of the act ordered to be done, and not the result of some collateral or negligent act no^. ordered, the maxim respondeat superior applies (r). If, therefore, an assault (/) Clark V. Ketvsam, 1 Exch. 140. £rowf< V. Allen, 4 Esp. 158. £liot v. Allen, 1 0. B. 18, (m) Merrytceatlier \. Kixan, 8 T. R. 186. Farebrother v. Anslei/, 1 Campb. 344. The rule is the Bame in this coun- try, and there is no contribution between wrong-doers unless a remedy is given by statute. (n) Erie, J., Zumlei/ y. G)/e, 2 El. & Bl. 216 ; 22 L. J., Q. B. 463. (o) Com. Dig. Action upon tho Case, A. Coxe V. Smith, 1 Lev. 119. Fitzjohn V. Mnekindcr, 9 C. B., N. S. 516; 30 L. J., C. P. 257. (p) Plunket V. Gilmore, Fortescne, 21 1 . [q) Wilson V. Peto, 6 Moore, 49. Wiite v. Haffue, 2 D. & R. 33. (r) Hole V. Sittingboume, ^. Bail, Co., 6 H. & N. 488 ; 30 L. J,, Ex. 81. II' I w CHAP, v.] PRINCIPAL AND AGENT. 99 97 or imprisonment of the plaintiff is the necessary or probable consequence of orders given by tlie defendant, he will be responsible in damages for such assault and imprisonment, although he did not directly order it, or contemplate the possibility of its occurrence (s). So, where a master ordered his servant to lay some rubbish near his neighbour's wall, but so that it might not touch the wall, and the servant used ordinary care in executing the orders of his master, but some of the labbish nevertheless ran against the wall, it was held that the master was liable in trespass (t). Principal and agent— Liahilitij of the principal — Snhsequent ratifi- cation. — " He that receiveth a trespasser, and agrees to a trespass after it is done, is no trespasser," observes Lord Coke, " unless the trespass was done to his use or for his benefit ; and then his agree- ment subsequent amounteth to a precedent commandment ; for ir that case omnis ratlhahitio rctrotrahitur ct mandafo 2}}'iori wqui- paratur" (n). But, to make the subsequent ratification equivalent to a precedent commandment, the act of trespass must have been committed in the name, and avowedly on behalf and for the benefit, of the party subsequently ratifying it. If the trespass was not done for his use or benefit, or he is not in a situation to have originally commanded the act, then his subsequent assent does not make him a trespasser (a*). "It is a known and well- established rule of law," observes Tindal, 0. J., " that an act done for another by a person not assuming to act for himself, but for such other person, though without any precedent authority what- evei, beccmf s the act of the principal if subsequently ratified by him. In that case the principal is bound by the act, whether it be fov his detriment or advantage, to the same extent, and with all the consequences which follow from the same act if done by his previous authority. Such was the precise distinction taken in the Year Book, 7 Hen. 4, fo. 35, where it was held that, if a bailiff took a horiot claiming property in it himself, the subsequent agree- ment of the lord would not amount to a ratification of his authority as bailiff at the time : but, if he took it at the time as bailiff of the lord, and not for himself, without, how ever, any command of the lord, yet the subsequent ratificriion by the lord made him bailiff at the time " (y). But, to make a man a trespasser by relation, from having ratified and adopted an act of trespass done in his name and for his benefit, it must be shown that the act was ratified and adopted ■if. t («) Glynn v. Houilon, 2 M. & O. 337 ; 2 So. N. R. 554. (0 Oreffory v. Fiper, 9 B. & C. 591 ; 4 M. & R. 500. (t.) 4 Inst. 317. DaUaa, 0. J., EuU X. Fickcrsgill, 1 B. & B. 282. (/) Wilson T. Barker, 4 B. & Ad. 616 ; 1 N. & M. 4 "^9. Nicoll v. Glettnie, 1 M. & S. 592. (y) Wilson V. Timmoti, 6 M. & G. 242 ; 6 So. N. R. 907. Woollen v Wright, 1 H. & C. 654 ; 31 L. J., Ex. 513. h2 Trr 100 OF TORT-FEASORS. [chap. V. 98 by him with full knowledge of its being a trespass, or of its being tortious, or it must be shown that in ratifying and taking the benefit of the act he meant to take upon himself, without inquiry, the risk of any irregularity which might have been committed, and to adopt the transaction, right or wrong. Promises to make inquiries, expressions of disapprobation of the conduct of the agent, accompauied by offers of compromise and overtures to purchase peace hy returning the property taken or paying the value of it, are of themselves no evidence of the ratification of the wrongful act (c). One of several partners cannot drag the fli'm or his co-partners into a trespass by signing a wan-ant or authority for the doing a wrongful act in the name of the firm of which he is a member ; for one partner has no authority to bind the partnership to the commission of a wrongful act without the previous consent or sub- sequent concurrence of all the partners («) . If the act is done by the one partner for the benefit of the firm, and the firm afterwards take advantage of the act, and adopt the transaction, they may then become responsible for it. Principal ami agent — Liahility of the agent, — The doctrine that the receipt of the agent is the receipt of the principal does not extend to the case of a wrongdoer, so that, if an agent obtains money in the name of his principal by extortion, as, for example, if he detains goods which he has no right to detain, and compels the owner to pay him money as the price of their restitution, ho cannot shelter himself from responsibility on the ground that he is an agent. "A payment to A, expressly as the agent of B, for the purpose of redeeming goods wrongfully detained by B, and a receipt by A expressly for B, will still give a right of action against A " (h). So, also, an action can be maintained against a solicitor who wrongfully exacts money on behalf of his client, as the price of the liberation of deeds or securities unjustly and illegally detained by him on behalf of such client {b) ; or ,vho extorts more than the princijjal and interest due on a mortgage deed, and the costs, under the threat of the exercise of a power of sale (c) ; or against a parish clerk who demands and receives on behalf of the rector a greater sum for searches in the parish register than he is entitled to charge {d) ; or a vestry clerk who wrongfully receives and detains, by direction of the vestry, burial fees which 99 belong to the rector (e) ; or a steward of a manor who exacts (a) Hoe T. Birkenhead, Ac. Bail. Co., 7 Exoh. 36. (o) Petrie v. Lamont, Car. & M. 96. See Ex parte Adumson, 8 Cb. D. 820; but see Ex parte Salting, 25 Ch. D. 148. (*) Smith V. Sleap, 12 M. & "W. 588. Wakefield v. hewhon, 6 Q. B. 276. Ash- feaiSft mole V. Wainwrighi, 2 Q. B. 827. Oates V. Hudson, 6 Exch. 346. (c) Close \. Fhipps, 7 M. & O. 586 ; 8 So. N. R. 381. Fraser v. Pendlebury, 31 L. J., C. P. 1. (rf) Steele v. Williami, 8 Exch. 626. (e) Spry v. Emperor, 6 M. & W. 639. ,s& I CHAr. v.] MASTEll AND SEUVANT. 101 exorbitant fees from tenants on their admittance (/). Nor can the agent discharge himself from liability even by paying the money over to his principal (i/). Thus, where a bailiff illegally compelled the plaintiff, under a threat of distraining his goods, to pay him a sum of money, it was held that the fact of the bailiff's having, before the commencement of tlie action, paid over the entire sum to tlie sheriff, who had paid it into the exchequer, con- stituted no defence to the action (//). So, if a man acts as an agent in collecting the assets of a deceased person, and knows at the time that his employer is not the legal personal representative, he is himself responsible for the money he has received, although ho may have duly accounted with his principal, and paid it over to him (/). Master and scnaut — LiahUiti/ of the master. — The master is liable to third persons for the torts, negligences, and other mal- feasances or misfeasances, and omissions of duty, of his servant in the course of his omploj^ment, although the principal did not authorize, or justify, or participate in, or indeed know of, such misconduct ; or even if he forbade the acts, or disapproved of them (/.). But, although the master is thus liable for the torts and negligences of his servant, yet wo are to understand the doctrine with its just limitation, that the tort or negligence occurs in the course of the emploj^ment ; for the master is not liable for the torts or negligences of his servant in any matter beyond the scope of the employment, unless he has expressly authorized them to be done, or has subsequently adopted them for his own use and benefit (/). The employer is responsible for the act of his servant, wnether the work is done by a domestic servant or day-labourer, or by a person who works by the job or ^iece, and contracts to do the work for a specific sum {n) ; provided always, that the workman is an ordinary labourer, personally engaged in the execution of the work, acting under the control of the master, and not a con- tractor exercising an indenerdent employment, and selecting hia own servants and workmen for the performance of the work (o). i I' if) Trahenw v. Gardner, 5 El. & Bl. 942. (•) ; and it is upon this ground alone, it seems, that the above case can be supported (.s). Where work which if properly conducted can occasion no risk of injury to others, is placed in the hands of a builder or contractor, who selects his own workmen and servants for the performance of the work, and directs the manner of doing it, exercising his own judgment in the matter, and having the immediate control over the workmen, such contractor, and not the person who employs him, is the person responsible for injuries to strangers from the negligent execution of the work (t) ; and, if the work is done under the immediate control and superintendence of a sub- contractor, then the latter is the party responsible for any wrong done by the work- men he employs in the execution of the work. It must not be tmderstood, however, that a contractor cannot become liable for the negligence of his sub-contractor. If the contractor personally interferes and gives dii-ections to the sub-contractor, or to the workmen employed by him, he will be responsible for the orders given; but he cannot be charged simply on the ground of his filling the character of contractor (m). (o) Jicedie v. .London and Xorth IFcUern Sail. Co., 4Exch.^^4. {p) Murray v. Carrie, L. R., 6 C. P. 24 ; 40 L. J., C. P. 26. (}) Randleson v. Murraij, 8 Ad. & E. 1 09. (r) Deninan, C. J., Milligan v. Wvdge, 12 Ad. & E. 741. West Riding Rail. Co. V. Wakefield Board of Health, 6 B. & S. 478; 33L. J., M. C. 174. («) Murphy V. Caralli, 3 H. & C. 462 ; 34 L. J., Ex. 14. (0 Steel V. South Eastern Sail. Co., 16 C. B. 550. («) Overton v. Freeman, 11 C. B. 873; 21 L. J., C. P. 52. make v. Thirst, 2 H. & C. 20 ; 32 L. J., Ex. 189. The doctrine stated in this sub-division is adopted in this country, and an employer •who commits the whole charge of a cer- tain -work to a contractor, reserving to himself no control over it, is not respon- sible for injuries inflicted by him in the Srosecution of the work. See Wood's [aster and Servant, p. 614. CUAP. v.] »1A8TE1{ AND 8EKVANT. 107 105 Wliore a builder Ixad contracted Avith the committoo of a club to make alterations and improvements in tlio club-house, and to pre- pare and fix the necessary gas-fittings, and the builder made a sub- oontrat . with a gos-fittor to do this latter portion of the work, and the gas-fitter's workmen allowed the gas to escape and cause an explosion, which injured the butler of tho club and liis wife, it was held that tho gas-fitter, and not tho builder, was liable for tho negligence (x). If the execution of repairs to a dwelling-house, or the construc- tion of a drain, is entrusted to a builder or contractor, who exercises an independent employment, and selects his own servants and workmen, and has tho immediate control and superintendence of the work, the owner of the house, who employs the contractor, is not responsible for the creation of nuisances in the public thorough- fare by the negligence of tho contractor's servants, if ho was ignorant of their imlawf ul proceedings, and had no knowledge of the probable consequences of their acts (y). If any excavations or constructions of any kind are authorized to be made over or across a public thoroughfare, by private in- dividuals or a public company, or by commissioners, and the works are lawful in themselves, and can be done without injury to individuals, and without creating any nuisance, and the persons directing the works to be executed employ a contractor to do the work, who selects the workmen, and has the entire conduct and management of the work, the persons so employing the con- tractor, and authorizing the execution of the works, are not themselves responsible for nuisances or injuries arising from the incompetence of the contractor, or for the negligent execution of the works by him, his servants, or agents, or for damage from things done by the contractor or his workmen, which were never authorized or ordered to be done by the company or commis- sioners (s). Where commissioners, appointed under an Act of Parliament for the improvement of the navigation of a canal, agreed with a contractor for the performance of certain works for draining and carrying off the surplus waters of the canal, and the contractor, in the exercise of the powers conferred on the commissioners by the Legislature, constructed a drain through the land of the plaintiflE for the purpose of carrying off the waste water, and the plaintiff's land was flooded in consequence of the defective and negligent construction of the drain, it was held that the con- (x) Bapson v. Citbitt, 9 M. & W. 710. (u) Peaehey v. MowUind, 13 C. B. 186. (z) Gray v. Pullen, 6 B. & S. 970, 981 ; 34 L. J., Q. B. 265. Knight v. Fox, 5 Exch. 725 ; 20 L. J., Ex. 9. Feachey v. liotvland, 13 C. B. 182; 22 L. J., C. P. 81, qualifying £ush v. Steinman, 1 B. & r. 404. f* 108 OF TOUT-l'JiASOUS. fCHAP. V. 106 tractor, and not tho conimissionors, won roBponsiblo for tho nuisance, a« tho contractor was not tho Borvant of tho company, but occupiod an indcpondont position, haviiifjp tho selection and entire control of tho workmen and tho solo nmnagoniont of tho works (^/). In tliis case tho defective drain, causing tho overflow of tho water and creating tho nuisance, was on tlio plaintifT's own land. Had the nuisance arisen upon tho land of tho defendants, they would have been responsible for it. A man who orders a work to bo executed, lawfid in itself, but from which, in tho natural course of things, injurious consequences to others must be expected to arise, unless means are adopted by which such consequences may bo prevented, is bound to exercise reasonable skill and care in the doing of that which is necessary to prevent tho mischief, and cannot relieve himself of his responsi- bility by employing some one else to do what is necessary to pre- veiit the act ho has ordered to be done from becoming wrongful. Thus, where A and Ji were tho respective owners of two adjoining houses, A being entitled to tho support for his house of 7y's soil, and ]i employed a contractor to pull down his house and excavate the foimdations, and yl's house was injured in tho progress of tho work, owing to the means taken by tho contractor to support it being insufhcient, it was held tliat Ji was liable, and that it would have been no djfence if he had expressly stipulated with tho contractor that ho should do all that was necessary to support the plaintiff's house (h). Where the defendants liavo employed a contractor to do an net which is unlawful in itself, or which cannot bo done without creating a nuisance, then the act done by tho contractor is in substance their act, and they as well as ho are responsible for the consequences which naturally result from it (c). After the contract has been properly completed, and the works handed over to the commissioners or persons who have employed the contractor, the liability of the contractor ceases ; and, for any subsequent injury caused by the natural result of tho work the contractor has completed, the commissioners and not the con- tractor will be responsible: as where the defendant, under a contract with the MetropoKtan Board of "Works, opened a high- way for tho purpose of constructing a sewer thereunder, and, after finishing the sewer, properly filled in and made good the road. (rt) Allen V. Ilayttard, 7 Q. B. 9G0 ; 15 L. J., Q. B. 99. ill) Jtouer V. I'cate, 1 Q. B. D. 321 ; 45 L. J., Q. B. 446. Dalton v. Avgus, 6 App. Cas. 740; 50 L. J., Q. B. 689. Hughes v. Vercival, 8 App. Cas. 443 ; 52 L. J., Q. B. 719. See Wood's Master and Servant, pp. 592—631. (c) FAlis V. Shrffhld Gns Co., 2 El. & Bl. 757 ; 23 L. J., Q. B. 42. Hole v. Sitthigboimic Hail. Co., 6 H. & N. 600 ; 30 L,. J., Ex. 81. Jilake v. Tfiirst, 2 II. & C. 20 ; 32 L. J., Ex. 188. Jiroini- low V. Metropolitan Board of Works, 10 C. B., N. S. 546 ; 33 L. J., C. P. 233. CHAP, v.] MASTER AND SERVANT. 109 107 which, howovor, BubHO(iuontly Buhsided, wliioh is tho natural result of such opening of tho road and loosoning of tho miiterials of whicli it is composed, and tho plaintiff's horso stumbled in ono of tho lufles 80 caused and was injured ('/). Mtixtvr ami m'nudit — yjr' of the emploi/mrut. — A master is responsible for tlio wrongful net of his servant, even if it Ih wilful, or reckless, or malicious, provided tho act is done by tho servant within tho scope of his employ nient, and in furtherance of his master's business, or iov tho master's benefit (r) ; but, if tho servant, at tho time ho does tho wrong, is not acting in tho execution of tho master's business and within tho scope of his employment as his servant, but is carrying into effect some oxelusivo object of his own, tho master will not be nnswerablo for his act. Thus it is said, " if I command my servant to distrain, and ho rido on the distress, ho shall be punished, and not I ' {/). So, " if my servant, contrary to my will, chase my beasts into tho soil of another, I shall not bo punished {) . But, where the servant was authorized by a railway company to arrest in certain cases in which the company had power to arrest, and the servant arrested the plaintiff in a case in which tho company had no power to arrest, it was held that there could be no implication of autho- rity from the company to the servant to arrest in oases where tho company itself had no power to arrest {q). And, where a local board of health, being in occupation of a sewage farm, had given the servant plenary powers for the management of such farm in the most beneficial manner, and, with the view of rendering a (»i) See Ztccas v. Mason, L. R., 10 Ex. 251 ; 44 L. J., Ex. 145, a decision not •easily reooncilod with Seymour v. Oreen- wood, 7 H. & N. 355 ; 30 L. J., Ex. 327. («) Seymour v. Greenwood, 7 H. & N. 355; 30 L. J., Ex. 327, qualifying M'Manus v. Cricket, 1 East, 107. Sny- ley V. Manchester, Sheffield and Lincoln- shire Sail. Co., L. R., 7 C. P. 415 ; 8 ib. 148 ; 42 L. J., 0. P. 78. Shea v. Sixth Avenue S. B. Co., 62 N. T. 180 ; Holmes ▼. jroA;e/{eW,12Allen(Ma88.),580; JJaw«- dm V. Boston, ^c. R. li. Co., 104 Mass. 117 ; Jeffersonville 2?. JR. Co. v. Rogi'rs, 38 Ind. 116 ; Rounds v. Del. $ L. li. R. Co.; Lovett v. Salem, Sjc. R. R. Co.; 9 Allen (Mass.), 557; Garretsonv. Ducnckel, 50 Me. 104 ; Hamilton v. Third Avenue R. R. Co., 53 N. Y. 25 ; Mintcn v. Racijio R. R. Co., 41 Me. 503. (o) Burns v. I'oulsom, L. R., 8 C. P. 663 ; 42 L. J., C. P. 302. (p) Moore ▼. Metropolitan Rail. Co., L. R., 8 Q. B. 36 ; 42 L. J., Q. B. 23. {q) Poulton V. London and South iVest- ern Rail. Co., L. R., 2 Q. B. 534 ; 36 L. J., Q. B, 294. CfHAP. v.] MASTFIl AND SERVANT. Ill ditch which ran between the fann and tho land of tho plaintill more capaWo of carrying off tlio drainiigo of tho farm, tho servant wont upon tho plaintiff's land and pared away his sido of tho ditch, it was held that tho act h' done was not within tho scope of tl.o Bcrvant's ((mploynient, and consequently that tho local board woro not liable (r). 109 Wherovor tho master intrusts a horso, or carriage, or any- thing which may readily bo niado an implement of raischmf, to his Borvant, to bo used by him in furthoranco of the master's business, or for tho execution of his orders, tho master will bo responsible for tho negligent management of tho thing intnisted to tho servant, so long as tho latter is using it or dealing with it in tho ordinary course of his employment. Where tho master v/as riding along a public highway with a mounted groom behind him, and tho master having suddenly quickened his pace, the groom spurred his horso to keep up with him, whereupon the horse struck out with his hind logs and kicked a waggoner who was walking in the road at tho head of his team, it Avas held that the master was responsible for the injury (s). In all cases of negligent and improvident driving by a servant employed to drive, the master will bo responsible if the servant was driving about tho master's business, or using tho master's horses and carriage for tho master's benefit; and the master cannot exonerate himself from liability by showing that tho servant was acting in disobedience of his orders. Where, therefore, an omnibus company gave written instructions to their drivers *' to drive at a steady pace, and not on any account to race with or obstruct other omnibuses," and a driver disobeyed these instructions, and wilfully drew across the road to obstruct another omnibus, and ran against it and upset it, it was held that the instructions given by tho omnibus company to their servants could not exonerate the company from responsibility for the careless, wilful, or malicious acts of such servants while carrying passengers for the benefit of the company (t). So, where the carter of a contractor, in defiance of his master's orders, left his cart standing in the street while he went away for dinner, and the horse ran away and injured the plaintiff's railings, it was held that the oontraotor was responsible (m). (Mass.), 420 ; Sri/ant v. litch, 106 Mass. 180 ; Shirley v. liillinga, 8 Bush. (Ky.) 147 ; Goddard v. Grand Trunk R. Ji. Co., 67 Me. 202; Buggim v. WaUon, 16 Ark. 118 ; Higgins v. Waterolict T. Co., 46 N. Y. 23 ; Jackson v. Second Avenm R. R. Co., 47 N. T. 9. (m) Whatman v. Pearson, L. E., 3 C. P. 422. (»•) BoUnghroke {Lord) v. Swindon Local Board, L. R., 9 C. P. 676 ; 43 L. J., C. P. 675. Sed qutere. (») North V. Smith, 10 0. B., N. S. 672. {t) Limpus V. London General Omnibtu Co., 1 H. & 0. 626; 32 L. J., Ex. 34. Bett» V. Be Vitre, L. R., 3 Ch. 441 ; 37 L. J., Oh. 325. Shea t. Sixth Avenue B. B. Co., ante; Hewitt y. Swift, 3 Allen fMT' 1 112 OF TORT-FEASORS. [CIIAP. V. 1 J It ia not necessary to prove any express request or order by the master to the servant to use the master's horse or carriage. If, at the time of the injury, the servant appears to have been driving bis master's carriage in tlie ordinai-y course of his employment, the master will ho pi'imd facie responsible {x). But, if my servant, without my knowledge wrongfully takps my caninge or my horse, for his own purposes, and drives against another person's carriage, I shall not be responsible for the 110 injury; for, when the servant takes the master's carriage or horse, and uses it undor such circumstances, he gains a special property for the time being in the chattel, and makes it for the time, and for the particular wrongful purpose, his own {y). Where the de- fendant's coachman was driving the defendant's carriage through a narrow street wliich v.'as blocked up by a luggage-van containing goods of the idaintiff, which were being unladen and taken into the plaintifE's house, and behind the van stood the plaintiff's gig, and the defendant's coashman (there not being room for the car- riage to pass) got off his box and laid hold of the van-horse's head and moved the van, and caused a large packing-case to tumble on the shafts of the gig, and break them, it was held that the defendant was not liable for the injury, the se-vant at the time not being in the execution of his master's orders, or doing his master's work (s). So, where the defendant's carman, without his master's permission, and for a pm'pose of his own wholly unconnectri with his master's business, took out the defendant's horse and cart, and on the way home, after he had collected some empty casks of his master's, negligently ran against the plaintiff's cab and damaged it, it was held that he was not acting within the scope of his employment at the time of the accident («). Where a porter of a railway company so negligently managed a truck containing luggage, that a portmanteau fell from it and injured the plaintiff, it was held that the railway -ompany were responsible, although the plaintiff had neither arrived nor wan going by the defendants' line, and was i^QTely passing along a platform used in common by three railway companies {b). If the master of a ship, who has received no instructions from his owners as to pcrfoiining salvage services, agrees to tow a dis- abled ship into port, he is acting within the scope of his general Ix) Patten V. Bea, 2 C. B., N. 8. 613 ; 26 L. J., C. P. 237. (y) M'Manus v. Cricket, 1 East, 106 ; 2 Roll. Abr. 553. Sleath v. jyih.n, 9 C. & P. 607 ; qualified by Seymour v. Greenwood, 7 H. & N. 355 ; 30 L. J., Ex. 327. Joel v. Morison, 6 C. & P. 603. Mitchell V. Crassmller, 13 C. B. 237. 8tm-ey ▼. Athton, L. R., 4 Q. B. 476 ; 38 L. J., Q. B. 223. (z) Lamb y. Falk, 9 C. & P. 631. Sed queere. (a) R^^ner v. Mitchell, 2 C. P. D. 357. Fh..un V. Stiles, 43 Conn. 426 ; Adams V. Cost, 62 Md. 264. (A) Tebbutt v. Bristol and Exeter Rail. Co., L. R., 6 Q. B. 73 ; 40 L. J., Q. B. 78. _- . ; CHAP, v.] MASTER AND SERVANT. 113 authority as master, and his owners are responsible for his negli- gence in towing the disabled ship whereby shi is damaged (c). Master and servant — Liabilifi/ of master in the ease of fellow- sermnts. — Where both the person injured and the person inflicting the injury are fellow-servants in the same employment, the master was generally exempt horn liability (d), before the passing of the Employers' Liability Act. Master and servant— Employers^ LialUitij Act. — Sineo the 111 passing of that Act {e) the legal result of the plaintiff being a n-orknian (within the cases contemplated by the statute) is not that he has "impliedly contracted to bear the risks of the employ- ment " (/), which was the former theory, and he is now (if within the statute) entitled to bring his action of tort against the master. The first and second sections of tue Act describe or limit the classes of cases which are to come witliin the Act. They are as follows : — " 1. Where, after the commencement of this Act, personal injury is caused to a workman — "(1.) By reason of any defect in the condition of the ways, works, machinery, or plant, connected with or used in the business of the employer ; or " (2.) By reason of the negligence of any person in the service of the employer who has any superintendence in- trusted to him whilst in the exercise of such superin- tendence; or " (3.) By reason Ox the negligence of any person in the service of the employer to whose orders or directions the workman, at the time of the injury, was bound to conform, and did conform, where such injury resulted from his having so conformed ; or " (4.) By reason of the act or omission of any person in the service of the employer done or made in obedience to the rules or bye-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf ; or " (5.) By reason of the negligence of any person in the service of the employer who has the charge or control of any signal, points, locomotive engine, or train upon a railway ; (c) The Thetis, L. R., 2 A. & E. 365 ; 3« L. J., Adm. 42. {d) Addison on Contracts, 8th ed. p. 445. This is the rule in this country in all the States, except where by statute the master is made liable for the negli- gence of a co-servant. See Wood's Master and Servant, Chap. XVI. (e) 43 & 44 Vict. c. 42. A workman may contract himself out of the Act. OriffUhs V. Lord Dudley, infra. (/) Per Cave, J., Griffiths v. Lord Dudley, 9 Q. B. D. 357, 300 ; 51 L. J., Q.B. 543. '•v?:-^Jii-JJ>:*Ji^.<.-yU ^v; ? - • — 114 OF TORT-FEASORS. [chap. V. the workman, or, in case the injury results in death, the legal personal representatives of the workman, and any persons entitled in case of death, shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of, nor in the service of, the employer, nor engaged in his work. "2. A workman shall not he entitled under this Act to any right of compensation or remedy against the employer in any of the following cases : that is to say — " (1.) Under sub-sect, one of sect, one, unless the defect therein mentioned arose from, or had not been discovered or remedied owing to the negligence of the employer, or 112 of some person in the service of the employer, and intrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition ; " (2.) Under sub-sect, four of sect, one, unless the injury resulted from some impropriety or defect in the rules, bye-laws, or instructions therein mentioned ; provided that where a rule or bye-law has been approved or has been accepted as a proper rule or bye-law by one of her Majesty's principal secretaries of state, or by the Board of Trade, or any other department of the government, under or by virtue of an Act of Parlia- ment, it shall not be deemed for the purposes of this Act to be an improper or defective bye-law ; " (3.) In any case where the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, infor- mation thereof to the employer, or some person superior to himself in the service of the employer, unless he was aware that the employer, or such superior, already knew of the said defect or negligence." With respect to these sections it may be observed that the Act only applies to "workmen," tis detined by the Employers and "Workmen Act, 1875, s. 10, and to railway servants {g), so that clerks, shopmen, timekeepers, «S.o., appear to be excluded (/<). Seamen are not within the statute («), nor are vtorkmen in the service of the Crown as they are not mentioned {k). is) Sect. 8. (A) A person hired for the purpose of assisting a firm in canying out mechani- cal ideas is not a mechanic or workman under the Employers and Workmen Act, 1875. Jackson v. Sill ^ Co., 13 Q. B. D. 618. Also an omnibus con- ductor is not a workman. Aforgan v. General Omnibus Co., 12 Q. B. D. 201 ; 13 Q. B. D. 832 ; 53 L. J., Q. B. 362. m See 43 & 44 Vict. c. 16, s. 11. \k) Maxwell on Statutes, p. 112. Workmen includes workwomen (13 & 14 Vict. c. 21, s. 4), and apprentices of a limited class are probably included (see ss. 5, 6, and 12 of 38 & 39 Vict. c. 90), CHAP, v.] MASTER AND SERVANT. 115 ' The meaning of the word "defect" in the above sections has received many illustrations (/). Under the law, as it stood before the Act, the master could (besides denial of negligence and assertion of contributory negligence), set up (1) common employ- ment, and (2) that servant has imdertaken the risk ; but now these two defences are taken away in cases under the statute, and there is substituted by sub-sect. 3 another defence, viz. : that the servant knew of the defect and the master did not (m). 113 The meaning of the words " person who has any superinten- dence entrusted to him" is explained by sect. 8 to mean " a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour" («). The meaning of the words " to whose orders the workman at the time of the injury was bound to conform" has also given rise to some litigation (o). The words "train" (p), "charge and control " («7), "rail- way" (r), have also received an interpretation by the Courts. By sect. 3 of the Act, " The amount of compensation recover- able under this Act shall not exceed such sum as may be found to be equivalent to the estimated earnings, dming the three years preceding the injury, of a person in the same grade employed during those years in the like employment, and in the district in which the workman is employed at the time of the injury." By sect. 4, " An action for the recovery under this Act of compensation for an injury shall not be maintainable unless notice that injury has been sustained is given within six weeks, and the action is commenced within six months from the occurrence of the accident causing the injury, or, in case of death, within twelve months from the time of death : Provided always, that in case of death the want of such notice shall be no bar to the maintenance of such action if the judge shall be of opinion that there was reasonable excuse for such want of notice." (/) HesJce v. Samuehon ^- Co., 12 Q. B. D. 30 ; 63 L. J., Q. B. 45 ; approved of in Cripps v. Judge, 13 Q. B. D. 30 ; 53 L. J., Q. B. 583. McGifen v. Falmei's Ship Co., 10 Q. B. D. 5 ; 52 L. J., Q. B. 25. Fa/eij v. Gmnett, 16 Q. B. D. 52. Thomas v. Quartermaine, 17 Q. B. D. 414 ; 65 L. J., Q. B. 439. The word "■works" in s. 1 means works already completed. Howe v. Finch, 17 Q. B. D. 187. (m) Webliny. Ballard, 17Q.B.D. 122; 55 L. J., Q. B. 395. See, however, Thomas v. Quartermaine, supra. (m) As to an omnibus conductor, see ante, note (A), and Shaffers v. General Steum Navigation Co., 10 Q. B. D. 356 ; 52 L. J., Q. B. 200; where a man guiding the beam of a crane was held to be engaged in manual labour and not superintending. But contra, where a man handed a plank to another. Osborn v. Jackson, 11 Q. B. D. 619. (o) Laming v. Webb, L. T. Feb. 4, 1882, p. 247. Bunker v. Midland Bail. Co., 47 L. T. 476. Millward v. Midland Bail. Co., 14 Q. B. D. 68 ; 54 L. J., Q. B. 202. {p) Cox V. Great Western Bail. Co., 9 Q. B. D. 107. {q) Gibbs V. Great Western Bail. Co., 12 Q. B. D. 208. (r) Loughty v. Firbank, 10 Q. B. D. 358 ; 52 L. J., Q. B. 480. Cox v. Great Western Bail. Co., tupra. i2 Mt.m,K^ > j 116 OF TOKT-FEASORS. [chap. V. The notice under s^ *■. 4 must be in writing, for this section must be read with sect. 7,j)oiit, p. 114 (s), and the notice must be in accordance with sect. 7, and must not in general, it should seem, be made by reference to some other document, and, at all events, not by mere reference to words (t). The notice need not describe the injury with particularity, and therefore the words " for injury to his leg" are sufficient (u). So, a notice that the plaintiff " was injured in consequence of your negligence in leaving a certain hoist improtected, whereby, &c.," was held sufficiently to state tht» "cause of injury" within the section, though, as the jury found, 114 the negligence consisted in allowing the plaintiff to go alone on the hoist, and not in leaving it unprotected (ar). By sect. 5, " There shall be deducted from any compensation awarded to any workman, or represputatives of a workman, or persons claiming by, under, or through a workman in respect of any cause of action arising under this Act, any penalty or part of a penalty which may have been paid in pursuance of any other Act of Parliament to such workman, representatives or persons in respect of the same cause of action ; and where an action has been brought under this Act by any workman, or the represen- tatives of any workman, or any persons claiming by, under, or througa such workman, for compensation in respect of any cause of action arising under this Act, and payment has not previously been made of any penalty or part of a penalty under any other Act of Parliament in respect of the same cause of action, such workman, representatives, or persons shall iiot be entitled thereafter to receive any penalty or part of a penalty under any other Act of Parliament in respect of the same cause of action." By sect. 6, provision is made for the trial of all actions under the statute in the county court (t/). By sect. 7, " Notice iu respect of an injury under this Act shall give the name and address of the person injured, and shall state in ordinary language the cause of the injury and the date at which it was sustained, and shall be served on the employer, or, if there is more than one employer, upon one of such employers. " The notice may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. (») Moyk V. Jenkins, 8 Q. B. D. 116 ; 61 L. J., Q. B. 112. Keenv. Millwall Dock Co., 8 0.. B. D. 482; 51 L. J., Q. B. 277. (<) Keen v. Millwall Lock Co., supra. (u) Stone V. Hi/de, 9 Q. B. D. 76 ; 51 L. J., Q, B. 450. (x) Clarkton v. Musgrave, 9 Q. B. D. 386; 61 L. J., Q. B. 525. (y) As to removing actions from a oonnty ooart to a superior court, see 9 & 10 Vict. c. 95, 8. 90; 19 & 20 Vict, c. 108, ss. 38, 39 (which latter section does not apply to the Employers' Lia- bility Act. The Queen v. Judife of the City of London Court, 16 Q. B. D. 905 ; 54 L. J., Q. B. 330), and 28 & 29 Vict, c. 99, B. 39. See Pitt-Lewis, County Court Practice, p. 171 et seq. Actions may also be removed by certiorari ; but see Munday v. Thames Ironworks Co., 10 Q. B. D. 69 ; 62 L. J., Ch. 380. CHAP, v.] MASTER AND SERVANT. 117 " The notice may also be served by post by a registered letter addressed to the person on whom it is to be served at his last known place of residence or place of business, and, if served by post, shall be deemed to have been served at the time when a letter con- taining the same would be delivered in the ordinary course of post; and, in proving the service of such notice, it shall be sufficient to p. 'hat tho notice was properly addressed and registered. " Where tho employer is a body of persons, corporate or unincorporate, the notice shall be served by delivering the same at or by sending it by post in a registered letter addressed to the 115 office, or, if there be more than one office, any one of the offices of such body. " A notice under this section shall not be deemed invalid by reason of any defect or inaccuracy therein, unless the judge who tries the action, arising from the injury mentioned in the notice, shall be of opinion that the defendant in the action is prejudiced in his defence by such defect or inaccuracy, and that the defect or inaccuracy was for the purpose of misleading." A notice left at the place of business after business hours, not in the letter box, but in a box used by the foreman, is not properly served {2). The "defect or inaccuracy" mentioned in the section must be such as to prejudice or mislead the defendant, tnd an omis- sion of the date of the injury was held to be such a defect or inaccuracy («). By sect. 8, " For the purposes of this Act, unless the context otherwise requires — "The expression 'person who has superintendence entrusted to him ' means a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour: " The expression * employer ' includes a body of persons cor- porate or incorporate : " The expression * workman ' means a railway servant and any person to whom the Employers and Workmen Act, 1875, applies." Master and servant — Liahilitif of master in the case of volun- teers. — If a person comes forward as a volunteer, and offers to assist servants engaged in a difficult or dangerous work, and gets injured through the negligence of one of the servants, the employer is not responsible for the injury; for a person, by volimteering his services, cannot have any greater rights, or impose any greater («) Adams v. Ifightingale, L. T. April 16, 1832, p. 424, Grove, J. and Huddle- ston, £. (o) Carter v. DnjsdaU, 12 Q. B. D. 91. 118 OF TORT-FEASORS. [chap. V. duties on the employer, than would have existed if he had heen a hired servant (h). But, if ho is assisting the defendant's sei-vants ■with the defendant's assent for a purpose in which he and the defendant have a common interest, as, for instance, for the purpose of expediting the delivery of his own goods, he is not a mere volun- teer, ' \d is entitled to recover if he is injured hy the negligence of the defendant's servants (c). 116 Master ami servant — Liahility of the servant. — The person who actually inflicts the injury through his own negligence, is, of course, always responsible for the injurious consequences of his default. "Those," observes Domat, "who construct works, or who do any other thing from wlience may ensue damage to others, will be answerable for that damage, if they have not taken the necessary precautions to prevent it. Thus, masons, carpenters, and others, who carry materials up their scaffolds, and those who, from the top of a tree, cut down the branches thereof, must give timely warning to all persons likely to be endangered by their proceed- ings, and will be answerable in damages if they neglect so to do " {d). Both the master who commands the doing, and the ser- vant who does, an act of trespass, may be made respoi- ible as principals, and sued jointly for damages {e). A servant keeping the key of a room, knowing that a man is imprisoned therein, is a trespasser (/). The servant is equally liable with the" master in respect of his own personal participation in a wrongful act, and cannot discharge himself from liability on the ground that he acted under unavoidable ignorance and in obedience to his master's orders ; nor can he justify under any authority from his master, when his master had no authority in the matter (f/). A servant may be liable for a conversion to which he is a party, though he is acting in obedience to the commands of his master, and under authority from him (A) ; and a servant who is required by statute to obey the lawful orders of his master, as the surveyor of a high- way board is required to obey those of the board (/), is, nevertheless, personally responsible, if in obeying their orders he commits a trespass or other unlawful act {j). > (b) Begg t. Midland Rail. Co., 1 H. & N. 773; 26 L. J., Ex. 173. Fatter v. Faulkner, I B. & S. 800 ; 31 L. J., Q. B. 30. See Wocd'n Master and Servant, p. 909. (c) Wright v. London and Korth- Western Bail. Co., 1 Q. B. D. 252 ; 45 L. J., Q. B. 570. In such a case the plaintiff occupies a position analogous to that of a person who has been licensed by the occupier to come on the premises of the latter for the joint interest of both. {d) Domat, liv. 2, tit. 8, s. 4. (c) Bates v. Pilling, 6 B. & C. 38. (/) Bro. Abr. Teespass, pi. 133, 250, 265. iff) Alderson, B., Hutchinson v. York and Neucastle Bail. Co., 5 Exch. 360. Ste- phens V. FAwall, 4 M. & S. 261. Bennett V. Bayes, 5 H. & N. 391 ; 29 L. J., Ex. 224. (/i) Perkins v. Smith, 1 Wils. 328. Davies v. Vernon, 6 Q. B. 443. (t) 25 & 26 Vict. c. 61, s. 16. 0) Mill V. Hawker, L. R., 10 Ex. 92; 44 L. J., Ex. 49. Hi \ U.-kCi'i! ■t.^aiHw •-s*. -S.^ . Ji^ CHAP, v.] CORPORATIONS. 119 t A servant who merely hires laboiirers for the performance of the master's work, is not answerable for the negligence of such fellow-fat-rvants, or for injuries inflicted by them in the course of their employment. Thus a gardener or a steward, who employs labourers under him to do his master's work, is not answerable for the defaults or improper conduct of such labourers causing damage to a third person. In such cases the action must either bo brought against the hand committing the injury, ©■' against 117 the owner for whom the act was done (k), or against both the one and the other jointly (l). But a clerk who superintends the erection of a building by which ancient lights are darkened, and who alone directs the workmen, is liable, as well as the contractors who appointed him to superintend the progress of the building (m). If the injured person sues either the master or the servant and obtains judgment, he cannot sue the other («) ; and, where a cabman, who had been injured by the negligent driving of an omnibus, accepted a sum which was awarded to him by a magis- trate under the 6 & 7 Yict. c. 8G, s. 28, as compensation from the driver, it was held that he could not sue the master (o). Corporations. — A corporation, by accepting a grant of land from the Crown upon certain conditions as to the repair of sea- walls and defences, may render themselves liable to an action of tort at the suit of any party sustaining any private and peculiar damage from the non-repair of such sea-walls, &c. (jo). A cor- poration may also be made responsible in an action for a trespass in breaking and. entering a close, and for seizing goods ; for every corporate body is liable in tort for the tortious acts of its agents and servants acting in the ordinary service of the corporation, without any order or authority imder its common seal (q). A corporation may give a warrant to distrain without deed, and thus render itself responsible for a wrongful distress ; and the jury may infer, in the matter of a wrongful distress or seizure of goods, that the actual wrong-doer was the agent of the corporation, from the fact of their having received the proceeds of the seizure (r). An action for a wrong lies against a corporation, where the thing done is within the purpose of the corporation, and has been done in such a manner as to constitute what would be an action- able wrong if done by a private individual. Therefore, when an (*) Stone V. Cartwright, 6 T. R. 411, (/) Wilson V. Feto, 6 Moore, 49. (m) Wilson v. Peto, 6 Moore, 47. (w) Sec ante, p. 54. (o) Wright v. London General Omni- bus Co., 2 Q. B. D. 271 ; 46 L. J., Q. B. 429. (j») Mayor of Lyme Regis v. Henl^, I Bing. N. C. 240 ; 2 CI. & F. 331. {q) Maund v. Mcnmou'^s Pail. Co., 4 M. & G. 452 ; 5 Sc. N. R. 467. (»•) Smith v. Birmingham Go* Co., 1 Ad. & E. 626. 120 OF TORT-FEASORS. [chap. V. action was brought against tha London General Omnibus Com- pany for interfering with the rights of the plaintiff, by driving their omnibuses in such a manner as to molest him in the use of the highway, it was held that, as the company were incorporated for the purpose of driving omnibuses, and the whole of the wrongful acts charged in the declaration of the cause of action were acts connected with the driving of their vehicles along the public highway, and wore, therefore, within the purpose of their 118 incorporation, an action for damages was maintainable against them. "We think it extremely important," observes Erie, J., " where such companies admit that they have in fact intentionally committed a wrong, that the public should have a remedy against them, and not be driven to an action against their servants and others whom they have employed, and who may be entirely incapable of giving the recompence which the law may award" (s). A corporation may become liable in damages for the improper and careless construction and management of dangerous premises and dangerous machinery (t) ; or for an assault and battery, or false imprisonment, committed by its servants in the exercise of its orders, or in the discliarge of their duty, without proof of any authority under seal from the corporation (»). Where a railway company are carrying on business, there are certain things which are necessary to be done for the carrying on of the business and the protection of the company, and there are things which, if done at all, must be done at once ; and, therefore, the company must have some person on the spot to do these things, and clothed with authority to decide, as the exigency arises, what shall be done. If such person, intending to exercise his authority, makes a mistake, and does an act which cannot be justified, the company are responsible, because he was their agent (^). Where there is a necessity to have a person on the spot to act on an emergency, and to determine whether certain things shall or shall not be done, the fact that there is a person on the spot who is acting as if he had express authority is prima, facie evidence that he had authority; and the presumption that he had authority must be rebutted by the company (y). Where a railway passenger was (.«) Green v. London General Omnibus Co., 7 C. B., N. S. 290 ; 29 L. J., C. P. 13. (<) Cowley V. Mayor of Sunderland, 6 H. & N. 566; 30 L. J., Ex. 127. («) Eastern Counties Rail. Co. v. Broom, 6 Exch. 314. Goffx. Great North- em Rail. Co., 3 El. & El. 672 ; 30 L. J., Q. B. 148. (a) Giles V. Taff Vale Rail. Co., 2 El. & Bl. 822. Goffy. Great Northern Rail. Co., 3 El. & El. 672 ; 30 L. J., Q. B. 148. Moore v. Metropolitan Rail. Co., L. R., 8 Q. B. 36 ; 42 L. J., Q. B. 23. Railey v. Manchester, Sheffield and Lin- colnshire Rail. Co., L. R., 7 C. P. 415 ; 8 C. P. 148; 42 L. J., C. P. 78. (y) Goffy. Great Northern Rail. Co., 3 El. & El. 672; 30 L. J., Q. B. 148. CHAP, v.] COUrORATIONS. 121 taken into custody by n railway servant by command of a super- intendent, for travelling on the railway without having paid his fare, with intent to avoid payment thereof (z), and the chai'ge fell to the ground, and an action was brought against the company for an unlawful imprisonment, it was held that they were liable in damages ; for it must bo presumed that a superintendent of traffic or of police, and all officers in authority, upon the lino, or at the station, liad power on behalf of the company to determine whether 119 the servant of the company should, or should not, arrest persons for criminal frauds upon tho company (r/). But it is otherwise, if the corporation cannot legally authorize the act to bo done. Where, therefore, a station-master arrested a person travelling by a railway in charge of a horse for not paying for the carriage of the horse on demand, and there was no power in the railway company by law to arrest a person for such non-payment, but only to detain the goods, it was held that no authority could be implied to the station-master, and that the railway company were not responsible (i). There is an implied authority in a servant to do all those things that are necessary for the protection of the property entrusted to him, or for fulfilling a duty which he has to perform ; but there is no authority in a servant having the custody of property to take such steps as he thinks fit to punish a person who he supposes has done something with reference to the property which he has not done. Thus, if a foreman porter in temporary charge of a station, or a ticket clerk, arrests a servant of the company, or a stranger, on a charge of stealing the com- pany's goods, or robbing the till, the arrest not being for the purpose of protecting the company's property by preventing a felonj', or for recovering it back; but only for the purpose of punishing the offender for .yhat has already been done, as they have no implied authority so to arrest, the company are not responsible for it (c). So, where one of the defendant's servants, a constable, after the conclusion of a scuffle in a station yard, wr( igfully gave the j'aintifE into custody, and all that the con- stable was authorized by the regulations of the company to do, was to interfere in any fight or affray occurring at any of tho stations, for the purpose of stopping it, it was held that the company were not responsible (d). On the other hand, where the plaintiff, who (i) See the 8 Vict. o. 20, as. 103, 104. Fost, p. 158. (a) Goffv. Great NorUiern Mail. Co., 3 El. & El. 672 ; 30 L. J., Q. B. 148, quaU- fying' and explaining Moe v. Itirkenhead and Lav.cashire Hail. Co., 7 Exch. 41. (i) Poullon V. Lottdon and South- Western Sail. Co., L. R., 2 Q. B. 534 ; 36 L. J., Q. B. 294. (c) Edwards v. London and North Western Rail. Co., L. R., 6 C. P. 445 ; 39 L. J., C. P. 241. Allen v. London and South Western Mail. Co., L. R., 6 Q. B. 65; 40 L. J., Q. B. 55. (rf) Walker v. South Easttrn Mail. Co., L. R. 5 0. P. 640 ; 39 L. J., C. P. 346. w 122 OF TORT-FEASORS. [chap. V. refused to sliow Iub ticket, was removed from the station with unnooesBary violence by order of the inspector, the company were liold responsible (*'). An imprisonment of a person liable to a railway company for not having paid his faro is an act for the benefit of the company, whifh may bo ratified by the company (/). Wliere a corporation have employed a solicitor to conduct legal proceedings, the corporation are not necessarily liable for the 120 unlawful acts of which the solicitor may have been guilty in the conduct of the proceedings (•) Davidnon v. Tulloch, 3 Macq. 783. (») Lord Holt, R. v. Mayor of Ripon, 1 Lord Raym. 664. A corporation is liable the same as a natural person for all torts committed by its officers or agents in the prosecution of its business : Philadelphia ^ Reading R. R. Co. v. Berbtf, 14 How. (TJ. S.) 468 ; Hale v. Union, #c.. Lis. Co., 32 N. H. 295 ; Alabama 4- Tenn. R. R. Co. V. Kidd, 29 Ala. 221 ; Noyea\. Rutland 4- liurliugton R. R. Co., 27 Vt. 110 ; Lotvell v. Boston, 4-e., R. R. Co., 23 Pick. (Mass.) 24 ; Edwardsy. Union Bank, 1 Fla. 136 ; Booth v. Farmers' Bank, 50 N. Y. 396 ; Fhiladelph -j., ^c, R. R. Co. V. Ginglei/, 21 How. (L . S.) 209; Good- speed V. East Iladdam Bank, 22 Conn. 630 ; Bissell v. Michigan, (Jr., R. R. Co., 22 N. Y. 258 ; Frankfort Bank v. Johnson, 24 Me. 490. (0 Newbtf V. CoWi Patent Fire-Arms Co,, h. R., 7 Q. B. 293 ; 41 L. J., Q. B. :1 Ui OF 'n)UT-KKA.SOKa. [CHAI'. V. liifdutH. — A i»l<'a of iiifanoy oonstitutos no dofonoo to an ootion of tort. Thus, MX infant is rosponsiblo for an assault or false imi»riHonmont, for libel aiul Hlundcr, for soduotion, and for trospossr and an infant in fh(> actuid occupation of land is rosponsiblo for nuisances and injuries to his ncij?hbour, ariwiufj^ from tho negligent use and management of the i)roi)orty. A num who has made a (contract with on infant cannot convert anything that arises out of that contract into a tort, and seek to enforce tho contract through tho medium of an action of tort. Therefore, where a lad hired a mare, and injured it by immoderate riding, it was held that a plea of infancy was an answer to the action, the action being founded on contract (»). But where a horse is hired for one purpose and is used for another, or is let out to bo used by one person, and he allows it to be used by another, thoro is a tort independent of c ntract. And, therefore, where an infant hired a horse on the tonus that it was to be ridden on the road and not over fences in the fields, and tho infant having got possession of tho horse lent it to a friend, who took it off the high road, and in endeavouring to jump tho animal over a hedge transfixed it on a 122 stake and killed it, it was held that the infant was responsible in damages for the value of tho horse {jc) . An infant is not liable for the conversion of g lods, if the cause \jl tction is grounded on matter of contract with the infant (//). I'dt, if an infant gets goods into his hands by fraud and false pretences, or under colour of a pretended contract, and then refi'ses to deliver up the goods on the demand of the party who has been defrauded of the possession of them, he cannot, if the goods were in his hands or under his control at the time they were demanded back, set up his minority as a defence to an action grounded on such demand and refusal (s). Where an action for money had and received was brought against an infant to recov.^- money which the infant had em- bezzled, Lord Kenyon said that infancy was no defence to the action ; that infants were liable to actions ex delicto^ though not ex contractu; and though the action was in form an action of the latter description, yet it was ex delicto in point of substance ; that if an action of trover had been brought for any part of the property embezzled, or an action grounded on the fraud, infancy wo\ild have been no defence ; and that, as the object of the action vras precisely the same, his opinion was that the same rule of law 148. Service of the writ upon the head officer of the English branch is sufficient. Ibid. (m) Jtnningi v. Eundall, 8 T. R. 335. [x) Bumard v. Haggis, 14 C. B., N. S. 45 ; 32 L. J., C. P. 180. (y) Manby v. Scott, 1 Sid. 129. {£) MilU T. Graham, 1 B. & P., N. R. 14.5. Clarice v. Cobleij, 2 Cox, 173. ■ ^ ■ 1 CHAP, v.] MARRIF.n WOMEN. 123 should apply (ti). It would Booni tliat an infant cannot bo made a bankrupt, but tliero is aoiuo dotibt upon tho point {/>). Mdi'fU'd tcomi'ii. — Tho htiHhand wiis at conuuon law (and :... to his position Hinco tho ^[iirried "NVonion's I'ropi'rty Act, 1H82, sco ii>fi't' Bathe, ante, p. 62. m I 126 OP TORT-FEASORS. [chap. V. ft were a feme sole, and her husband need not be joined with her as defendant, or be made a party to any action or legal j-roceed- ing taken against her, and any damages or costs recovered against her in any such action or proceedings shall be payable out of her separate property. But this section has been held not to relieve the husband from his liability to be sued in respect of his wife's torts committed after marriage (i). A married woman carrying on a trade separately from her husband is subject to the bankruptcy laws just as if she were a fevie solc{k). After the death of the wife, or the dissolution of the marriage, the husband is discharged from all responsibility for her tortious acts, imless he himself participated therein, or authorized or instigated them, in which case he will be responsible, like any other principal who has committed a tortious act through the medium of an ageut. After the death of the husband, the wife may be sued alone for all tortious acts in which she has partici- pated, whether she was a sole actor in them, or whether they were committed by her at the instigation or under the influence of her husband (/) ; and the same rule of lav/ prevails where the husband has abjured the realm, or has been transported, and is thereby civiliter mortmis {m). 124 In every case of a judicial separation, or divorce a vinculo matrimonii, or protecting order, the wife so separated, divorced or protected, is considered a feme sole for the purpose of being sued for wrongs and injuries done by her ; and her husband is not liable for any wrongful act or omission by her (n). A wife could not, prior to the Act of 1882, after being divorced from her husband, sue him for an assault committed upon her during the coverture, since the inability to sue during the coverture did not arise from the necessity of joining her husband with her as co-plaintiff, but from the rule that husband and wife are one person in law (o). But by sect. 12 of the Act it was provided that every woman whether married before or after the Act should have in her own name against all persons including her husband the same civil remedies for the protection and security of her own separate property as if such property belonged to her as a feme sole, but except as aforesaid no husband or wife should be entitled to sue the other for a tort. The effect of this section appears to be to enable m (i) Seroka v. Eattenburg, 17 Q. B. D. 177. Uc) 45 & 46 Vict. c. 75, b. 1, sub-s. 5. \t) Vine V. Saunders, 4 Bing. N. C. 10?.. As to damages in the latter cab<), see per Bosanqaot, J., S. C. (m) Bac. Abr. Babon and I^eue, M. \n) 20 & 21 Vict. o. 86, ss. 21, 26. Capell V. Powell, 17 0. B., N. B, 743 ; 34 L. J., C. P. 168. (o) Phillips V. Jiarnet, 1 Q. B. D. 436; 45 L. J., Q. B. 277. -: He i-.kisi.-: .,4 Jf.;^?^.' CHAP, v.] PUBLIC OFFICERS. 127 a wife to sue her husband for torts affecting her separate pro- perty {p) even while they are livir^ together, but it is doubtful whether he has any similar rights against her (q). Lunatics {r). — At law a lunatic is in general liable for a tort. An action of trespass may be brought against a lunatic notwith- standing he is incapable of design; for wherever one person receives an injury from the voluntary act of another this is a trespass, although there were no design to injure (s). If a lunatic hurt a man he chall be liable in trespass {t). So a lunatic innkeeper was held- not to be excused from his responsibility to take care of his guest's goods (m). It was said in the course of the argument in one case (v), that a lunatic is liable to an action for false representation, to which Kelly, 0. B., added " and also for a libel," but no authority was cited. In the American Courts it has been held that lunatics are liable for torts in general («), but not for those torts where intention is a necessaiy element of 125 the tort (such as defamation or malicious prosecution) (y), and it has been stated that where vindictive damages might be given against a sane person, the measure of damages against a lunatic would be merely the injury suffered by the plaintiff (s). Public officers. — In a subsequent part of this work(«), the duties of public officers, and the mode of compelling the perform- ance of their duties by mandamus, are fully explained. In the same chapter, also, will be found stated the law as it ai^ects magis- trates acting without jurisdiction. By the 11 & 12 Vict. c. 44, s. 3, '^.here a discretionary power ia given to magistrates no action can be brought against them by reason of the manner in which they have exercised such discretion ; but they must have jurisdiction and be acting judicially (6), and if (p) See Weldon v. De Bathe, U Q. B. D. 339. Reg. v. Lord Mayor of London, 16 Q. B. D. 772. Iq) SeeperWilles, J., J?»ot« v. Pwrtrfo, 6 App. Gas. 102. (o) Biiron v. Denman, 2 Exch. 167. Warden v. Bailei/, 5 Taimt. 67. Echols V. Staunt-.i, 3 W. Va. 574. Lively v. Balland, 2 W. Va. 574. J J. CHAP, v.] RIOTERS. 129 for acts which are done by authority, whether precedent or by way of ratification (p). A Court of law will not take cognizance of disputes about military discipline between military men (q) ■ Revenue officers may justify the detention of goods for a reason- able time for examination (;••). Public officers employed in the public business of tho country are not responsible for the negligence or misconduct of those who act under them. Thus, a Queen's officer on board ship is not responsible for the negligent acts of his subordinate officers (s). Public officers are only liable for their own personal negligence or misconduct [t] . P-'blic commissioners, boards of health, &c., are liable for torts so long as they are acting in the execution of their statutory powers and bond fide{u), but they must not be negligent (or). Most statutes, under which public bodies act, exempt the officers of the body from personal liability though the body itself is liable for wilful neglect or default (//). Rioters.— JSy the 49 & 50 Vict. c. 38, s. 2— (1) where a house, shop, or building in any police district has been injured or destroyed, 127 or the property therein has been injured, stolen, or destroyed by any persons riotously and tumultuously assembled together, such compensation as hereinafter mentioned shall be paid out of the police rate of such district to any person who has sustained loss by such injury, stealing, or destruction; but in fixing the amount of such compensation regard shall be had to the conduct of the said person, whether as respects the precautions taken by him, or us respects his being a party or accessory to such riotous or tumultuous as- sembly, or as regai'ds any provocation offered to the persons assembled, or otherwise. (2) Where any person having sustained such loss as aforesaid has received, by way of insiu'ance or other- wise, any sum to recoup him, in whole or in part, for such loss, the compensation othenvise payable to him imder this Act shall, if exceeding such sum, be reduced by the amount thereof, and in (p) Huron V. Benman, 2 Exch. 167. Bradley v. Arthur, 4 B. & C. 306. ( j) Lawkins v. Lm-d Rokebtj, 4 F. & F. 806; L. R., 7 H. L. 744; 45 L. J., Q. B. 8. Johnstone v. Sutton, 1 T. R. 644. {r) Jaeobsohn v. Blake, 6 M. & G. 919 ; 8&9 Vict. o. 87, 8. 116. (») Nicholson v. Mouncei/, 15 East, 384. The Trinity House are not servants of the Crown. Gilbert v. Trinity House, 17 Q. B. D. 795. It is a good defence to an action of trespass agninst an oiBccr of the navy to show that ho did the act in obedience to an order from the pre- sident and secretary of the navy. Du' rand v. Hollitu, 4 Blatohf. (U. S.) 451 ; Ruan V. Perry, 3 Caines (N. Y.), 120. {t) Lane\. Cotton, 1 Ld. Rayiii. 64 d; 1 Salic. 17. Whitfield v. Bespencer, Cowper, 764. See per Blackburn, J., Mersey Bocks v. Gibbs, L. R., 1 H. L. 93, at p. HI. («) Sutton V. Clarke, 6 Taunt. 29. Herring y. Met. Board, 19 0. B , N. S. 610; 34 L. J., M. C. 224. {x) Whitehouse v. Fellowes, 10 C. B., N. S. 766 ; 30 L. J., C. P. 306. leader V. Mcxon, 2 W. Bl. 924. Mersey Locks V. Gibbs, supra. Foreman v. Mayor of Canterbury, L. R., 6 Q. B. 214 ; 40 L. J., Q. B. 138. (y) See post, ch. 11, "Liability of Public Officers." 1 t f 130 OF TORT-FEASORS. [chap. V. any other case shall not he paid to him, and the payor of such sum shall he entitled to compensation under this Act, in respect of the sum so paid, in like manner as if he had sustained the said loss, and any policy of insurance given hy such payer shall oontinue in force as if he had made no such payment, and where such person was recouped as aforesa,id otherwise than hy payment of a sum, this enactment shall apply as if the value of such recoupment were a sum paid. Claims for compensation are to he made to the police authority of the district, who are to inquire into the truth thereof, and fix such compensation as appears to them to he just (2). A Secretary of State may make regulations as to claims («). Where a party aggrieved fails to ohtain compensation he may bring an action, hut if, in such action, he fails to recover compensation or an amount exceeding that fixed hy the police authority, he will have to pay the costs as between solicitor and client {b). If the amount claimed does not exceed 100/. the action must be brought in the county court (c). Sect. 5 provides for the mode of raising the compensation money. Sect. 6 extends the Act to damage to wrecks and machinery, &o., and sect. 7 to churches and public institutions, &c. In an actic. against the hundred, under the repealed statute 7 & 8 Geo. 4, c. 31, to recover compensation for the felonious demolition of a houce, building, or erection, the same strictnerd of proof was required as on the trial of an indict- ment for the felony (d), and the plaintiff must have shown either that there was an actual demolition or destruction, or that there was a commencement of demolition or destruction with intent to demolish or destroy. Breaking the windows of a house and damaging the walls by throwing stones, where there was no 128 intent to proceed further, were held not sufficient to give a title to compensation (c). Crowds — Liability of person collecting. — It is an old principle of law, that, if a person collects together a crowd of people to the annoyance of his neighbours, that is a nuisance for which he is answerable. Therefore, where the defendant was in the habit of inviting persons into his own grounds to shoot pigeons, and the effect of that was that idle persons collected near the spot, trod down the grass of the neighbouring meadows, destroyed the fences, and cieated alarm and disturbance amongst the women and children in the adjoining thoroughfares, it was held that the («) Sect. 3, sub-sect (1). (a) lb. sub-sect. (2). 'h\ Sect. 4, Bub-seot. (1). e) lb. Bub-seot. (2). s (rf) Barwell v. Wintmtoke, 14 Q. B. (c) Drake v. Footitt, 7 Q. B. D. 201 : 46 L. T. 42. ty '"hftTi^iE^rTVTTi^ 1^ .if,j CHAP, v.] INJURIES FROM ANIMALS. 131 [ defendant was guilty of a nuisance (d). So, where the defendant descended in a balloon into the plaintiff's garden, and a number of persons rushed into the garden to render help and gratify their curiosity, and destroyed the plaintiff's hedges and crops, it was held that the defendant, who had set the balloon in motion and caused the mischief, was responsible for the injury (c). But the keeping of a large school is not, at all events necessarily, a nuisance (/) . Animals — Injuries by cattle and domestic animals. — If a man's cattle, sheep, or poultry, or any animals in which the law gives him a valuable property, trespass upon another's close, the owner of the animals is responsible for the trespass and consequential damage, unless he can show that his neighbour was boimd to fence, and had failed so to do ((7). Thus, where the defendant's horse injured the plaintiff's mare by biting and kicking her through an iron fence belonging to the defendant which sepa- rated the defendant's land from the plaintiff's, it was held that there was a trespass for which the defendant was liable apart from any question of negligence {h). It matters not whether the animals are at the time in the owner's immediate care or charge, or under the care of his servants, or in the custody of a stranger. In this last case, the stranger may be sued as well as the owner for the trespass {i). But, if my servant, without my knowledge, takes my beasts and puts them in another's land, my servant is the trespasser, and not I; for, by his wilful deckling with the beasts without any authority from me, he gains a special pro- perty in them for the time, and for this purpose they become his beasts {k). But, if a wife so deals with her husband's cattle, the husband himself is the trespasser ; for the wife can gain no special 129 property in them as against the husband {I). A commoner who puts his beasts on a common which is not inclosed is bound at his peril to see that his beasts do not stray from the common and trespass upon another man's land {in). Where an animal is a trespasser, it is immaterial that an injury done by it is due to the animal's vice. The owner in such a case is liable for all the damage it may do, whether the damage is such as may reasonably be expected from the nature of the animal or is due to i (rf) R. V. Moore, 3 B. & Ad. 188. Walker v. Brewster, L. R., 6 Eq. 25 ; 37 L. J., Ch. 33. (c) Guille V. Swan, 19 Johns. (U. S. R.) 381. (/) Harrison v. Good, L. R., 11 Eq. 338 ; 40 L. J., Ch. 294. {g) Sagrill v. Miluard, 21 Hen. 6, p. 33, pi. 20. lee v. JUlei/, 18 C. B., N. S. 722 ; 34 L. J., C. P. 212. (A) ElHs V. Lo/ttu Iron Co., L. R., 10 K C. P. 10 ; 44 L. J., C. P. 24. (i) 2 Roll. Abr. 546, pi. 20. J)awtrff V. ihiggins, Clayt. 32, pi. 66. {k) 2 Roll. Abr. Tbespass, 563, pi. 25. (/) 2 Roll. Abr. Tbespass, 553, pi. 2. Sed query, since the Married Women's Property Act. [ill] 20 Ed. 4, fo. 10 b., cited in Read V. Ednards, 17 C. B., N. S. 246: 31 L. J., C. P. 32. 132 or TORT-FEASORS. [chap. V. i llhi misc ievous propensities of which the owner is ignorant («). But where an ox was being driven down the street of a country town and entered the plaintiff's shop, no negligence being shown on the part of the persons in charge of the ox, the owner of the ox was held not liable for damage done by it (o). Animah — Trespasses from defect offences. — Where the plaintiff himself has contributed to the injury of which he complains, he has no ground for seeking compensation in damages (/)). If, therefore, a man is bound by contract or prescription to repair a fence between my land and his, and he neglects to repair, and by reason thereof my beasts get on to his land, this is a good answer to an action of trespass brought by him (q). Where some pigs escaped through a f eno 3 on to a raiWay, and, getting on the line, upset a trolly on which was a platelayer in the service of the company, and injured him, it waa held that, as the company were bound to maintain the fence, the platelayer was identified with them, and could not recover against the owner of the pigs (r). Whenever two persons have adjoining fields, and no hedge or fence between them, each must take care that his own beasts do not trespass on his neighbour (s), but one proprietor may acquire a right or title, by grant or prescription, to have the boundary-fence between hie ose and that of the adjoining pro- prietor maintained and repaired at the expense of the adjoining proprietor (t). " Every man must use his own land so as thereby not to hurt another ; and as, of common right, one is bound to keep his cattle from trespassing on his neighbour, so he is bound to use anything that is his so as not to hurt another by such user. If, therefore, a vendor sells a piece of pasture lying open to another piece of pasture of which he is possessed, the vendee 130 is bound to keep his cattle from running into the vendor's piece" (m). If a landowner, who has land abutting upon a high- way, neglects to fence the land from the highway, so that cattle stray from the high road and injure his crops, he cannot immedi- ately distrain the beasts damage feasant, or treat the owner of the beasts as a trespasser, but must either drive them out I-Ioiself, or allow a reasonable time to the drovers in charge of them to get them out of the land(«). But, if the beasts are not lawfully using the highway, if they have strayed away from the owner or WJ^ A, (w) Zee V. Biley, 18 C. B., N. 8. 722 ; 34 li. J., C. P. 212. unit V. Lofius Iron Co., L. R., 10 C. P. 10; 44 L. J,, 0. P. 24. (o) Tillett V. Ward, 10 Q. B. D. 17 ; 62 L. J., Q. B. 61. (p) Ante, pp. 23, 24. iq) 2 Roll. Abr. Tebspass, 565, pi. 3, citing 19 Hen. 6, 34 ; 30 Ed. 3, 3 b. (»•) Child V. Hearn, L. R., 9 Ex. 176 ; 43 L. J., Ex. 100. U) Bayley, J., JioyU v. Tamlyn, 6 B. & 0. 337 ; 9 D. & R. 437 ; Dyer, 372 b. it) Fast, pp. 296, 331. (u) Tenant v. Ooldtcin, 6 Mod. 314. (x) Goodwyn v. Cheveley, 4 H. & N. 631 ; 28 L. J., Ex. 298. \ CHAP, v.] INJURIES FROM ANIMALS. 133 his sorvanta, and are trespassing upon the public thoroughfare, and pass from thence on to the adjoining uninclosed land, this is a trespass for which the owner of the beasts is responsible (y) ; and, whenever one landowner is bound to maintain and repair a fence for the benefit of the adjoining landowner, and cattle escape out of the land of the latter, and trespass upon the land of the person who ought to have kept up the fence, it is no excuse that the fences were out of repair, if the beasts were trespassers in the place from whence they came. If it is a close, the owner of the cattle must show an interest or a right to put them there. If it is a way, he must show that he was lawfully using the way (s). Where the owner of a horse negligently allowed his horse to stray on the high road, it was held that the owner would be responsible for all such damage as in the ordinary seqiience of events might be expected to occur therefrom, such as the horse's walking into a neighbouring pasture, and consuming the grass there, or wandering into a corn-field and trampling down the corn, but not for a kick to a child in the road, unless it could be shown that the horse was naturally of a vicious disposition, and wont to kick, and that the owner knew of it at the time he allowed the horse to stray into the highway (a). Where cattle afflicted with a contagious disorder trespassed upon an Adjoining pasture and infected other cattle there with the disease, it was held that the owner of the trespassing beasts was responsible for the damage arising from the spread of the disorder, as well as for the injury to the grass and herbage (6). But the mere fact of the defendant's dcabby sheep getting amongst the plaintiff's healthy flock, and infecting them with the disorder, establishes no cause of action, unless it is proved that the defendant knew them to be infected, and neglected to tak6 proper and reasonable 131 precautions to prevent them from getting mixed with healthy flocks (c). Animals — Injuries hy intruding dogs. — A man is not, by the common law, considered to have the same valuable property in a dog as in cattle and sheep ; and it has been held that, if a man's dog goes into his neighbom-'s garden, and spoils and injures his crops, no action will lie {d), unless the dog is of a peculiarly mischievous disposition, so as to be imfit to be at large, and this is ■'*( '- (y) 2 Roll. Abr. 566, pi. 7. DovaUon V. Payne, 2 H. SI. 528. (g) Dovatton v. Payne, supra. Anon,, 3 WUs. 126. (a) Cox V. liurbidge, 13 C. B., N. S. 430; 32 L. J., C. P. 89. (M Anderson v. Bwkton, 1 Str. 192. [cj Cooke V. Waring, 2 H. & C. 332 ; 32 L. J., Ex. 262. (rf) Holt, C. J., Mason v. Keeling, 12 Mod. 336 ; 1 Ld. Raym. 608. Jiroun v. Giles, 1 C: &P. 118. i • I'f ' ', ' 134 OF TOllT-FEASOUS. [CIIAP. V. known to the master {e). If the master accompanies the dog, and is himself a trespasser, the damage done by the dog is consequential upon the trespass by the master (./'). If the owner of a dog allowed the dog to stray away and trespass on his neighbour's land, and the dog worried and killed the neighbour's sheep, the owner of the dog was not responsible at common law for the damage done, as the worrying and killing of sheep were, it was said, not in accordance with the ordinary instinct of the animal, and would not in the ordinary sequence of events be expected to result from a dog being allowed to stray away from his master's premises ; but, if the dog had previously worried sheep with the knowledge of the owner, the law threw upon the latter the duty of keeping the animal on his own pre- mises, and not suffering him to go at large {(;). Now, however, by the 28 & 29 Vict. c. GO, it is enacted that the owner of every dog shall be liable in damages for injury done to any cattle (A) or sheep by his dog ; and it shall not be necessary to show a previous mischievous propensity in such dog, or the owner's knowledge of such propensity, or that the injury was attributable to neglect on the part of the owner. The occupier of any house or premises where any dog was kept or permitted to live or remain at the time of the injury, is to be deemed to be the owner of the dog, unless he can prove that he was not the owner, and that the dog was so kept or permitted to live or remain without his sanction or knowledge. Where there are more occupiers than one, the occupier of that part of the house or premises where the dog was kept is to be deemed to be the owner («■). 132 Animals fcroi naturcc — Destruction of crops by rabbits ami pigeons. — If a man encourages the growth of wild rabbits upon his land, and forms ** coney burrows " there, and the rabbits stray from his land to the land of his neighbour, this is no trespass for which the breeder of the rabbits is responsible; for, when they have left his land, they are not then his rabbits doing damage. Being animals /er^e naturce, ae has no more property in them after they have left his soil than in the birds of the .lir, which may breed in one man's land and devour the crops of another {k). The only remedy, therefore, for a person whose crops are eaten by wild [c) R-ad V. Edwards, 17 C. B., N. S. 245 ; 34 L. J., C. P. 32. (/) I'cckwUh V. Shordiki, 4 Burr. 2093. iff) Anon., Dyer, pi. 162. Vin. Abr. Action*, H. pi. 3. Baker y. Webberky, Het. 171. Jenkins v. Turner, Ld. Baym. 109. Card v. Case, 6 C. B. 622. Fleming v. Orr, 2 Macq. H. L. 14. As to dogs known to have a mischievous propensity for pursuing and destroying game, see Head v. Edwards, 17 C. B., N. S. 245; 34 L. J., C. P. 31. (A) The word "cattle" includes horses, Wriffht V. Pearson, L. R., 4 Q. B. 682 ; 38 L. J., Q. B. 312. fi) Sect. 2. (k) Jiouhton's case, 5 Co, 104a; Cro. Eliz. 647. 1 -nlHt* CHAP, v.] INJURIES FROM ANIMALS. 136 - rabbits is tho capture and dostruotion of tbo rabbits. Commoners may destroy rabbits which come upon the common from the ad- joining land, not being tho lord's land (/) ; but they have no remedy against those who brood them (;«). The same law prevails with regard to pigeons : " if they come upon my land, I may kill them;" but I have no remedy against any one for brooding them (»»). But an action is maintainable by a tenant, to whom land has been let, the right of shooting being reserved, against the persons entitled to the right of shooting, for so overstocking the land with game as to cause damage to tho tenant's crops (o). Animals — Injuries from the keeping of ferocious animals. — Who- ever keeps an animal accustomed to attack or bite mankind, with knowledge of its dangerous propensities, is, prima, facie, liable to an action for damages at the suit of any person attacked or injured by the animal, without proof of any negligence or default in the securing or taking care of it. The gist of the action is the keeping the animal after knowledge of its mischievous disposition (p). But a man is entitled to keep a ferocious dog for the protection of his premises, and to turn it loose at night, provided the barking of the dog does not disturb the rest of the neighbours and create a nuisance; and, therefore, where the defendant, for the protec- tion of his yard, kept a fierce dog, which was tied up all day and was let loose at night, and the defendant's foreman incautiously went into the yard after dark, knowing that the dog was let loose at night, and was thrown down and bitten by the dog, it was held that he was not entitled to an action for damages (q). But a man has no right to put a ferocious dog in such a situation in the way of access to his house, that a person innocently coming there for a lawful purpose in the day-time may be injured by it. So with respect to a foot-path, though it be a private one, a man has no 133 right to put a dog with such a length of chain, and so near the path, that he could bito a person going along it (r). There is a difference between beasts that are ferce naturw, as lions and tigers, which a man must always keep chained up at his peril, and beasts that are mansuct), there was a collision with a ship in foreign waters. By tho law of the foreign country tho ship was liable, and the owners wero liable as tho owners of tho ship ; but by tho law of England tho ship ^nd owners would not bo liable, because there was a pilot on board, who was taken compulsorily on board, and who was navigating tho ship, and tho negligent act svas his ret. Under these circumstances it was held that, not- withstanding tho ship and tho owners were liablo, according to the law of the country where the act was committed, yet, inas- much as they were not liablo by the law of England, no action could bo maintained ogainst them. So, where an action was brought for a wrong to the person committed in a foreign country, it was decided that, as the liability of the defendant had been taken away by the law of the country whore the act was com- mitted, no action could bo brought in this country {q) ; and, where an action was brought for a wrongful act to real property in a foreign country, it was held that tho same rule applied (/•). But it is no answer to an action for an assault committed abroad, that, by tho law of the foreign country, no action for private damages for such a tort can bo maintained until after the defendant has been convicted in a public prosecution for the offence, and that the prosecution ^'s still pending ; for that is only a matter of procedure which must be governed by the lex fori (s). Ambassadors. — Foreign sovereigns and their accredited ambas- sadors resident in this country are not amenable to the jurisdiction 137 of our civil tribunals. They cannot be lawfully served with process in any civil proceeding ; nor can their goods be taken in execution (/). But proceedings in rem may be instituted against a foreign sovereign or an ambassador, if the res is not connected with the jus corona of the sovereign or the discharge of the functions of the ambassador (u). (p) L. B., 2 P. C. 193; 37 L. J., Adm. 1. {q) PkiUipB V. Eyre, L. R., 6 Q. B. 1 ; 38 L. J., Q. B. 113. (r) The M. Moxhaw, I P. D. 107 ; 46 L. J., Adm. 17. (*) Scott V. lord Sei/mour, 1 H. & C. 21U ; 31 L. J., Ex. 46"7. (<) MagdaUna Steam Navigation Co. V. Martin, 2 El. & El, 94 ; 28 L. J., Q. B. 310. See 7 Ajin. o. 12. Sections 1 and 2, applying^ to tho Kuasian Am- bassador, are repealed by Statute Lav Revision Act, 1867. (tt) The Charkieh, L. R., 4 A. & E. 59; 42L. J., Adm. 17. '-* 140 138 CHAPTER VI. - INJURIES TO THE PERSON. m if 1 1 h-M Rights of personal security and liberty consist, as we have seen («), in the right which everyone has to the enjoyment of life, limbs, and bodily health, and to move his body from place to place at his pleasure, so far as he can do so consistently with his legal obligations. Tho ordinary modes by which rights of personal security and liberty are infringed are by assault, battery, and false imprisonment. Infringement of rights of j)ersonal security — Assault. — Every laying of hands on the person of another, and every blow or push, constitute an assault and trespass, in respect of which an action for damages is maintainable, unless the act can be justified or excused. Every attempt, also, to offer with force and violence to do hurt to another, constitutes an assault, such as strikin,7 at a person with or without a weapon ; holding up a fist in a threatening attitude sufficiently near to be able to strike ; presenting a gun or pistol, whether loaded or unloaded, in a hostile and threatening manner, within gun-shot or pistol-shot range, and near enough to create terror and alarm ; riding after a man with a whip threatening to beat him ; shaking a whip in a man's face ; advancing with hand uplifted in a threatening manner with intent to strike, although the person is stopped before he gets near enough to carry the intention into eileet {b) ; and any gesture or threat of violence exhibiting an intention to assault, with the means of carrying that threat into effect (c). But, as regards threatening gestures, if the parties at the time the gestures are used are so far distant from each other that immediate contact is impossible, there is no assault (d). "Words accompanying a threatening gesture may deprive that gesture of the character of an assault. Thus, where a man laid his hand on his sword in a threatening manner, but aooompanied % ^a) Ante, p. 3. (*) Bao. Abr. Assault. Martin v. Shopper, 3 C. & P. 373. Stephens v. Mytrt, 4 C. & P. 350. B. v. St. George, 9 C. & P. 493. (o) Mead v. Coher, 13 C. B. 860. id) Pollock, C. B., CMett t. Grey, 4 Exoh. 744. w. CHAP. VI.] MAYHEM AND WOUNDING. 141 139 the gebtnre with the words, " If it were not assize-time, I would not take such language from you," it was held that the words showed that the party did not then intend to use his sword, and that there was no assault (e) ; and Lord Abinger is reported to have held that, if a man presents an unloaded pistol at another, and at the same time says that he does not intend to shoot him, this is no assault (/). The mere touching of a person, without force or violence, for the purpose of drawing his attention to some matter or another, is not an assault, unless it is done in a hostile or insulting manner (g) ; nor is it an assault to push gently against the person of another in endeavouring to make a way through a crowd ; but, if it is done in a rude and violent manner, or there is any struggling or pushing calculated to do harm, there will be both an assault and a battery (h). Personal security — Assault and battery. — A battery, as distin- guished from an assault, is where the person of a man is actually struck or touched in a violent, angry, rude, or insolent manner («). If a man is violently jostled out of the way, or spat upon (A), or has water, stones, or dirt rudely thrown upon him (/), or has his hat insolently knocked off, or his hair forcibly cut (w?), or his horse has been struck so that it ran away and threw him to the ground (h), the person guilty of the violence is liable to an action for an assault and battery. " But every laying on of hands is not a battery. The party's intention must be considered ; for people will sometimes, by way of joke or in friendship, clap a man on the back ; and it would be ridiculous to say that every such case con- stitutes a battery " («). A touch given by a constable's staff in order to engage the attention of a person is not a battery (jo). Personal security — Mayhem and tconnding. — When the assault has been carried to the extent of maiming or crippling, or of wounding, a person, it of course becomes of a much more serious character than a common assault, and the person injured will recover heavy damages, unless the maiming or wounding can be justified or excused in the manner presently mentioned. The old word " mayme '' or ** mayhem," derived from the French word mayhemer or mehaigner, was used to signify any hurt done to a man's body, whereby he was rendered less able in fighting either to defend himself or annoy his adversary ; such as the cutting off, (e) Tuberville v. Savage, 1 Mod. 3. (/) Slake V. Barnard, 9 C. & P. 628. \g) Coward v. Baddeley, 4 H. & N. 481 ; 28 L. J., Ex. 261. (A) Cole v. Turner, 6 Mod. 149. (•) Bowlings v. Till, 3 M. & "W. 28. (A) Beg. v. Cotesuorth, 6 Mod. 172. H) Furssll V. Horn, 8 Ad. & E. 604 ; 4 N. & P. 564. («j) Forde v. Skinner, 4 C. & P. 239. (n) Dodwell v. Burford, 1 Mod. 24 : 1 Sid. 433. (o) Ld. Hardwioke, Williams v. Jones, Hard. 301. (p) W\ffln V. Kincard, 2 B. & P. N. R. 472. Coward v. Baddeley, 4 H. & N. 481 ; 28 L. J., Ex. 261. 142 INJURIES TO THE PERSON. [chap. VI. ili 140 disabling, or weakening, a hand or finger, striking out an eye or foretooth, breaking a hone, or injuring the head, or wounding a sinew, &c. {q). Personal sccuntij — Assault uithout consent. — An assault must he an act done against the will of the person assaulted; and, therefore, it cannot be said that a person has been assaulted by his own permission, for where there is consent, there is no assault. Thus, if two persons agree to play at cricket together, and the one strikes the other with the ball in the course of the game, this is not an assault ; for " it is a contradiction in terms to say that the defendant assaulted the plaintiff by the leave and licence or per- mission of the latter" (r). Personal security — Assault without design. — An assault may be committed without any design or intention to commit an assault ; for, if the person of one man is violently struck by another, this is an assault ; and it is no answer to say that it was done uninten- tionally, as, for instance, in endeavouring to strike some one else (s) . So, if a man drives against and violently upsets the plaintiff in his carriage, and knocks him down, or overturns the chair in which he is seated, the person thus striking the plaintiff, or knocking him down, is guilty of an assault, although he had no intention to com- mit an assault {t). If the damage done is the immediate result of force exercised by the defendant, in a place where the probable and natural result of misdirected force would be to cause injury to others, the defendant will be responsible for the damage done, though it happen accidentally or by misfortune, unless the *orce wafj used strictly in self-defence (m). Personal security — Justification — Assault and battery in self' defence. — If the assault is in self-defence, and it can be shown that the plaintiff was the aggressor, and assaulted the defendant in the first instance, the action will be answered. But the defendant must show an assault by the plaintiff commensurate with the assault charged upon the defendant ; for, if the assault proved to have been committed by the plaintiff is trifiiug, and altogether dis- proportioned to the assault committed by the defendant, and forms no excusable or justifiable cause for it, the plaintiff will be entitled to a verdict («). Where the defendant proved that the plaintiff got off his horse, and held up his stick, and offered to strike the defendant, and the latter thereupon gave him a beating, it was held that a moderate battery was, by reason of the provocation, (9) Bao. Abr. Maiheh. Beames's Glany. p. 350. Bract, lib. 3, tr. 2. {r) Christopherson v. Bare, 11 Q. B. 477. («) Jamet v. Campbell, 6 C. & P. 372. (<) Hopper V. Rteve, 7 Taunt. 698. (u) Ante, p. 17. {x) Bean y. Taylor, 11 Exoh. 68. Cocko'oft V. Stnith, 2 Salk. 641 ; 11 Mod. 43. Littledale, J., Beeve v. Taylor, 4 N. & M. 470. CHAP. VI.] ASSAULT AND BATTERY. 1413 141 justifiable (y). So, if one man strikes another, and the person struck, in the heat of anger, and on the impulse of the moment, returns the blow with a stick or bludgeon, the battery is ex- cusable (z) ; but he has no riglit to revenge himself ; and if, when all the danger is past, ho strikes a blow not necessary for his defence he commits an assault and battery (a). If a man strikes another, who does not immediately after resent it, but takes his opportunity, and then some time after falls upo; aim and beats him, the second assault cannot be justified (b). When a person has been assaulted in such a way as to endanger his life, he is, of course, justified in maiming and wounding the attacking party ; and, if he has been violently assaulted, or assaulted in such a way as to put him in bodily fear, the mayhem or wounding, if inflicted in self-defence, is held excusable. "A man cannot justify a maim for every assault, as, if A strike li, B cannot justify the drawing his sword and cutting off his hand ; but it must be such an assault whereby in probability the life may be in danger " (c). " If A strike B, and B strike again, and they close immediately, and in the scuffle B maims A, this mayhem is excusable ; but if, upon a little blow given by Ato B, B gives him a blow that maims him, this mayhem is not excusable" (rf). " Cockcroft, in a scuffle, ran his finger towards Smith's eye, who bit a joint off from tbo plaintiff's finger: the question was, whether this was a propor defence for the defendant to justify in an action of mayhem ; and Holt, C. J., said that a man ought not, in the case of a small assault, to give a violent or unsuitable return, but in such a case plead what is necessary for a man's defence, and not who struck first ; for hitting a man a little blow with a little stick oii the shoulder is not a reason for him to draw a sword, and cut and hew the other" (e). Personal security — Justification — Assault in defence of the posses- sion of a house, or close, or of property. — An assault and battery may be justified in defence of the possession of a house, or a close, or a vestry-room, or pulpit (/), or in defence of the possession of goods and chattels by the person entitled to the possession and use of them {g). If one man enters the house of another with force and violence, the owner of the houce may justify turning him out ()/) Bale V. Wood, 7 Moore, 33. Fetrn V. Ward, 2 0. M. & R. 338. (2) Blunt V. Beaumont. 2 Gr. M. & B. 412. Oakes v. Wood, 3 M. & W. 150. . (<«) Coleridge, J., Eeff. v. Driicoll, Car. & M. 214. (A) Holt, C. J., Coeheroft v. Smith, 11 Mod. 43 ; 2 Salk. 641. (c) Per Cur., Cook v. Beal, 1 Ld. RaTm. 177; 3 Salk. 116. ' (rf) CockerofC 7. Smith, 2 Salk. 642. (e) Cockcroft v. Smith, 11 Mod. 43. (/) Jackson v. Courtenay, 8 £1. & Bl. 8; 27 L. J., Q. B. 37. Bro. Abr. Tbssfass, pi. 128. {g) Roberts v. Tayler, 1 C. B. 117 ; 14 li. J., C. P. 87. 144 INJURIES TO THE PERSON. [chap. VI. Wp^ 2-)i 142 without a previous request to depart (h) ; but if he enters quietly, he must he requested to retire hefore hands can he lawfully laid upon him to turn him out (/) . If he will not depart after having been requested so to do, the owner may use as much force as is necessary ; and, if the intruder resists the attempts of the owner of the house to turn him out, he is guilty of an assault upon the latter ; and, if a policeman standing by sees th resistance and witnesses the assault, he is justified in taking the intruder into custody. A policeman may also, with the authority and at the request of the master of the house, himself proceed to turn out the intruder ; but L-;' is not bound to do so unless he pleases, as it is no part of a policeman's duty to do so (k). If a shopkeeper puts goods into his shop window, ticketed at a certain price, he is not bound to sell them at the price marked ; and, if a customer insists upon having the goods, and refuses to leave the shop after having been requested so to do by the shopkeeper or his servants, he may be turned out (/). If a man comes into a public-house, and conducts himself in a disorderly manner, and the landlord requests him to go out, and he will not, the landlord may turn him out, though the disturbance does not amount to a breach of the peace. To do this, the landlord may lay hands on him, using no more violence than is necessary to turn him out. If the person resists, and lays hands on the landlord, that is an unjustifiable assault upon the landlord (m). The same rule prevails with regard to a forcible seizure of goods and chattels. If one comes forcibly and takes away my goods, I may oppose him without any more ado ; for there is no time to make a request (n). The owner of goods which are wrongfully in the possession of another may justify an assault involving no unnecessary violence, in order to repossess himself of his pr ->erty (o). When the defendant justifies in defence of his possession of realty or personalty, he must prove the fact of his possession at the time he committed the assault, and that the assault was of a defensive, and not of an oflPensive, character {p). Bare possession without title is sufficient against any person having no better title (q). If a tenant who holds over after the expiration of his lease is de facto in possession of the house ; if he is sitting in his (A) Weaver v. Btmh, 8 T. R. 78. TuUay v. Eeed, 1 C. & P. 6. (t) Polkinhorn v. Wright, 8 Q. B. 197 ; 15 L. J., Q. B. 70. {k) Wheeler y. Whiting, 9 C. & P. 265. U) Timothy v. Simpson, 6 0. & P. 500. (m) Eowell v. Jackson, 6 0. & P. 725. Webster v. Watts, 11 Q. B. 311; 17 L. J., Q. B. 73. (n) Grem y. Goddard, 2 Salk. 641; Owen, 150. (o) Blades v. Higgs, 10 0. B., N. S. 713 ; 12 0. B., N. S. 501 ; 34 L. J., C. P. 286. But it has been held in Ire- land that he cannot justify an imprison- ment for the same purpose. Harvey y, Maine, Ir. Rep., S O. L. 417. (p) Bean y. Hogg, 10 Bing. 349. (?) Chatteris y. Cooper, 4 Taunt. 547. Brett y. MuUarkey, Ir. Rep., 7 C. L. 120. CHAP. VI.] ASSAULT AND DATTERY. 145 143 drawing-room, or sleeping in his bed, and the landlord walks in ut the front door, the latter cannot be said to be in possession of the house, any more than a visitor who comes to make a morning call ; and, if ho lays hands on the tenant and turns him out, he cannot truly say that this was done in defence of his (the landlord's) possession of the house, such possession not having been gained until after the exercise of the act of force constituting the assault. But, if the tenant, or any other person who h 3 originally lawfully come into possession, voluntarily leaves the premises vacant, the landlord or lawful owner may at once enter, and take and keep possession. The previous possessor is then lawfully dispossecsed ; and, if he re-enters, he commits a trespass, and may be turned out of the house or off the land (/•). To justify a battery, the defendant must show that there was an imlawful resistance on the part of the plaintiff to the lawful acts of the defendant. If the plaintiff complains of repeated blows, of his having been knocked down and wounded, or of his haviug had his leg broken, it is no answer to say that the plaintiff intruded himself into the defendant's dwelling-house, and made a disturbance, and would not go out, and therefore the defendant knocked him down, or cut his head open with a truncheon, or broke his leg, as no man is justified in resorting to such severe measures to expel an intruder, unless resistance has been offered ; in which case it must be shown that the force used was no more than was reasonably necessary to overcome such resistance (s). In an action of trespass it was alleged that the defendant over- turned a ladder upon which the plaintiff was standing, and threw the plaintiff from it upon the groimd, and the defendant pleaded that he was possessed of a house and garden, and that the plaintiff erected a ladder in the garden, and went up the ladder in order to nail a board to the house of the plaintiff; that the defendant forbad the plaintiff so to do, and desired him to come down ; and that, upon the plaintiff's persisting in nailing the board, he gently shook the ladder, and gently overturned it, and gently threw the plaintiff from it upon the ground, doing as little damage as possible to the plaintiff, and on demurrer to the plea it was held that the overturning and throwing down of the ladder, however gently, with the plaintiff upon it, were vm justifiable, and the plea bad {t). Personal security — Spring-guns. — In Bird v. Holbrook [u) the 144 defendant being the owner of a garden, which was at some distance from his dwelling-house, and which was subject to depreda- Oaket (r) Browne v. Dawson, 12 Ad. & E. 629. Taylor v. Cole, 3 T. R. 296. TauHton v. Costar, 7 T. R. 431. Butcher V. Butcher, 7 B. & C. 402 ; 1 M. & R. 220. A. («) Gregory v. Hill, 8 T. R. 299. V. Wood, 2 M. & W. 791. {I) Collins V. Itenison, Say. 138. (m) 4 Bing. 628. m 146 INJURIES TO THE PERSON. [chap. VI. 'f ■I tions, had set in it without notice a spring-gun for the protection of his property. The plaintiff, who was not aware that a spring-gun was set in the garden, got over the wall in order to catch a pea-fowl, the property of a neighbour, which had escaped into the garden, and, his foot coming, in his pursuit of the bird, into contact with the wire which communicated with the gun, the latter went off and injured him. It was held that the defendant was liable. In liott V. Wi/Iics (.r)— tlio well-known case as to spring-guns— it became unnecessary to determine how far a person setting spring- guns would be liable to a person injui-ed by such a gun going off, even though sucli person were a trespasser, inasmuch as the plaintiff, having had notice that spring-guns were set in a par- ticular wood, had voluntarily exposed himself to the danger. But both Bayley, J., and Holroyd, J., appear to have thouglit that without such notice the action would have lain, the use of such instruments being unreasonably disproportioned to the end to bo obtained, and dangerous to the lives of persons who might be innocently trespassing. In Jordiii v. Cntinp (y), the use of dog- spears was held not illegal; but there tht injury done to the plaintiff's dog was alone in question. If the use of such an instrument had been productive of injury to a human being, the result might have been different. By the 24 & 25 Vict. c. 100, s. 31 (re-enacting the 7 & 8 Geo. 4, c. 18), it is provided that whoever shall place or cause to bo placed, or shall knowingly and wilfully continue, any spring-gun, man-trap, or other engine calculated to destroy human life, or inflict grievous bodily harm, with the intent that the same, or whereby the same, may destroy or inflict grievous bodily harm upon a trespasser, or other person coming in contact therewith, shall be guilty of a misdemeanour ; but tho setting of any gun or trap, such as is usually set with intent to destroy vermin, is not to be thereby rendered illegal; nor the setting of a spring-gun, man-trap, or other engine in a dwelling-house, lOr the protection thereof in the night-time (s). Personal security — Justification — Defence ofneighhours and friends. — If the assault complained of was committed by the defendant in the necessary and proper defence of a third party from the unlawfid violence of the plaintiff, it is justifiable under a plea to the effect that the plaintiff first assaulted A, being the child or relative, wife, husband, servant, apprentice, neighbour, or friend of the defendant, 145 and was continuing to do so, whereupon the defendant laid his ix) 3 B. & Aid. 304. (y) 8 M. & W. 782. The doctrines stated in the previous portion of this chapter are recognized and adopted in all the States, and it is lumeccssary to cite supporting authorities. (i) Leane v. Clayton, 7 Taunt. 489. See Wood on Nuisances (p. 147), also State V. Moore (31 Conn. 479), where the doctrine is advanced that a person may lawfully set spring-guns, &c. in certain ways, for the protection of his dwelling. ^^^ 'l^Il m J. ); vr.^j;.y^. vi;S-,> -. CHAP. VI.] ASSAULT AND BATTERY. 147 hands on the plaintiff to defend the said A against the plaintiff, and to prevent him from further assaulting the said A {a). Personal scciirifi/ — Justification— Moderate correction by parents, schoolmasters, masters of ships, 8fc. — To an action for an assault and battery, it is a good defence to plead that the person assaulted was the son of the plaintiff, and was an infant within the age of twenty-one years, still domiciled under the paternal roof, and under the care and control of the plaintiff, that he behaved saucily and contumaciously to the plaintiff, and refused to obey his lawful commands, whereupon the plaintiff mode- rately and in a reasonable manner chastised him (b) ; or that the plaintiff was the apprentice of the defendant, and conducted himself improperly and saucily, wherefore the defendant mode- rately chastised him (c) ; or that the defendant was the head master of a school or college, of which the plaintiff was a pupil, that the plaintiff was a member of a society or combination of pupils for purposes subversive of the discipline of the school, wherefore, &c. {(I) ; or that the defendant at the time of the assault was the captain of a merchant vessel trading to China, and the plaintiff was a mariner on board the vessel, serving under the orders of the defendant, and thut the plaintiff conducted himself in a mutinous and disorderly manner, and refused to obey the lawful and necessary commands of the defendant, whereupon the defend- ant caused the plaintiff to be moderately and properly corrected and flogged (c) ; or that the plaintiff was a passenger by the ship of which the defendant was captain, and that by reason of the plaintiff's conduct it bt^jame necessary for the preservation of the discipline, or for the safety, of the ship, to imprison him (/). Personal security — Justification — Assaults in preservation of the public peace. — Any person who witnesses an affray may, during the continuance of the affray, and for the purpose of putting a stop to it, lay hands on the affrayers {y). If he comes up in the midst of the affray, and forcibly interferes as a peacemaker for the purpose of separating the combatants and preventing further violence, he is not guilty of a trespass, unless he uses more violence than is reasonably necessary for the purpose {h). Personal security — Assault — Hearing and dismissal by magis- trates.— By the 24 & 25 Vict. o. 100, s. 42 (which is for the most (rt) Lncard v. Basdetj, 1 Ld. Baym. 62 ; 1 Salk. 407 ; 3 Salk. 46. (*) Winterbum v. Brooks, 2 C. & K. 16. {e) Penn t. Ward, 2 C. M. & R. 338. \d) Fitzgerald v. Northcote, 4 F. & F. 656. As to the powers of a schoolmaster generally, see Ibid, in notes, p. 663. U) Lamb v. Burnett, 1 Cr. & J. 295. (/) Aldtcorth v. Stewart, 4 F. & F. 957. iff) Koden v. Johnson, 16 Q. B. 218. (A) Timothy v. Simpson, 6 C. & P. 500. The doctriije stated in the two previous sub-divisions and in this, is recognized by our Courts. In reference to punishment inflicted by teachers upon apprentices, &c., it is proper to say, however, that it must in all cases bo moderate and reasonable, and if exces- sive liability attaches therefor. 1.2 148 INJURtra TO THE PERSON. [cHAP. VI. i i\ 146 part a ro-enaotraent of the 9 Goo. 4, o. 31,8. 27), it is enacted that, where any person shall unlawfully assanlt or boat any other person, two justices, npon complaint by or on behalf of tho party aggrieved, may hear and determine such offence : and (s. 44), if tho justices j^ion the hearing of any such case of assault and battery upon the merits, where tho complaint was preferred by or on behalf of the party aggrieved, shall deem the offence not to be proved, or shall find tho assault or battery to liave been justified, or BO trifling os not to merit punishment, and shall dismiss the complaint, they shall forthwith make out a certificate under their hands, stating the fact of such dismissal, and shall deliver such certificate to tho party against whom the complaint was preferred. And, if any person (s. 45) against whom such complaint shall have been preferred by or on behalf of tho party aggrieved shall have obtained such certificate, or having been convicted shall have paid tho whole amount adjudged to be paid, or suffered the im- prisonment awarded, such party shall be released from all fui-ther proceedings, civil or criminal, for the same cause. If a certificate under this statute is relied upon as a defence, it must be shown to have been granted on one of the grounds specified in the Act (i). If the magistrate merely orders the accused to enter into recognizances to keep the peace and pay the recognizance fee, that will be no bar to an action (k) . If the magistrate takes cognizance of the complaint and decides it to be frivolous, he is bound forthwith to grant a certificate that he has so decided. The granting or withholding the certificate by the magistrate is not discretionary. Tho defendant is entitled to it de jure ; and whether the complainant was present or absent at the time of the grant of such certificate is wholly immaterial (/). When the complaint has been once duly made before justices it cannot be withdrawn and further proceedings upon it discontinued by arrangement between the partie? if the justices think fit to oppose such an arrangement (w). (t) Skuse V. Davis, 10 Ad. & E. 639. The certificate of the fact of the dismissal, signed by two justices, will '.o primd facte evidence of the dii^missal of the complaint, without proof of the gcnmnc- ness of the signatures of the magistrates ■who have signed it (8 & 9 Vict. o. 113, B. 1). If the defendant relies upon a conviction under the same statute, the record of the conviction, or an examined copy of it, must be produced. Hart lei/ V. Ilindmarsh, L. R., 1 C. P. 553; 35 L. J., M. C. 255. (A-) Hartley v. Hindmarsh, L. R., I C. P. 553 ; 35 L. J., M. C. 255. Under the 9 Geo. 4, c. 31, s. 27, if the plaintiff, after the defendant had been summoned before justices, and had appeared and pleaded "Not guilty," withdrew his complaint without offering any evidence, and the charge was dismissed, or if he gave notice that he did not mean to attend the hearing, and the defendant attended and clauned to >•) 2 Inst. 62. Davis v. Mutsell, 6 Bing. 357 ; 2 M. & P. 690. sp4 .'Si::- * 154 INJURIES TO THE PERSON. [chap. VI. '^ !l il! ■ 152 actually been committed by some person or another, and that the circumstances were such that any reasonable person acting with- out passion or prejudice would have fairly suspected that the plaintiff committed it, or was implicated in it (.s) ; whereas a constable, having reasonable ground to suspoct that a felony has been com- mitted, although in fact none has been, is authorized to detain the person suspected, not being an infant under the age of seven years, incapable of committing a felony (f), until he can be brought before a justice of the peace to have his conduct investigated (it). Rights ofUhcrtij — Arrest — .Reasonable and probable cause. — There is no standard or fixed rule as to what is reasonable ground of sus- picion which can be laid down as applicable to all cases. *' The charge," observes Watson, B., "may be reasonable or unreasonable with reference to the circumstances and the character of the party making it ; and, while, on the one hand, a constable ought to bo protected in the execution of his duties, he ought, on the other, to bo guided in the discharge of those duties by ordinary reason, care, and caution," Where, therefore, a travelling showman told tho defendant, a police-constable, at a fair, that he had had some harness stolen a year before, and that the stolen harness was on the plaintiff's horse, and the constable went to the plaintiff and asked him whore he got the harness, and the plaintiff gave the common thief's answer — that he had bought the harness of a man he did not know, and had given him a shilling for it, — whereupon the constable took the plaintiff into custody, but it appeared that the constable had known the plaintiff for twenty years as a respectable householder, it was held that there was no reasonable cause for the arrest, and that tho constable was responsible in damages for a wrongful imprisonment (;r) . But, if one man charges another with having robbed him, and desires a constable to apprehend tho suspected thief, and the constable dees so without warrant, tlie constable is not responsible for the imprisonment because it turns out that th« charge is false, and that no felony has in fact been committed (y) ; for, if one man charges another with felony, and requires an officer to take him into custody, and carry him before a mogistrate, "it would be most mischievous," observes Lord Mans- field, " that the officer should be bound first to try, and at his peril exercise his judgment on the truth of, the charge. He that makes the charge alone is answerable. The officer does his duty in carry- (s) Tindal, C. J., Allen v. Wright. 8 C. & P. 526. Hall v. Booth, 3 N. & M. 316. (0 Marsh V, Loadei; 14 C. B., N. S. 636. (m) Beckwith v. Philby, 6 B. & C. 635 ; 9 D. & R. 487. Lawrence v. Hedger, 3 Taunt. 14. Buckley v. Gross, 3 B. & S. 666 ; 32 L. J., Q. B. 129. {x) Hogg v. Ward, 3 H. & N. 417 ; 27 L. J., Ex. 443. (y) Hale, P. C. 177. Davis v. Bussell, 5 Bing. 354 ; 2 M. & P. 607. ' CHAP. VI.] FALSE IMPRISONMENT. 155 i I 163 ing the accused before a magistrate, who is authorized to ex- amine and commit or discharge " (2) . If an arrest by a constable is in its inception wrongful, all other constables who n id and assist in the continuance of the wrongful imprisonment a" if ponsible for the entire damage thereby caused to the plaint' ., i.- lOugh they had no knowledge of the unlawfulness of the iiiaif.onment, and in- tended to act in strict discharge of their officii auty {a). The question of reasonable and probable cause is a question for the judge and not for the jury(i). "Probable cause," observes Tindal, C. J., " is, no doubt, a question of law, and within the province of a judge to decide ; but the juiy must not only find the facts which are supposed to constitute probable cause, but they are also warranted in forming theij conclusion from those facts, and it is frequently difficult to draw tue line between matter of law and matter of fact" (a). If, in the opinion of the judge, founded on facts proved before a jury, there was reasonable ground for sus- pecting, either that the plaintiff had committed, or that he was about to commit, a felony, he cannot recover damages from a con- stable for arresting and detaining him, although no felony had, in fact, been committed {d). The fact that the defendant acted upon hearsay evidence alone in causing the plaintiff to be arrested, if such evidence could easily have been tested, is one element — though not a conclusive one, if the informant is a trustworthy person, or other circiunstances exist — in considering the question of reason- able and probable cause (e). A justification of an imprisonment on the ground that the plaintiff had committed felony, and an abandonment of the plea at the trial, or a failure to prove it, are evidence of malice, and a great aggravation of the original wrong ; but a justification of a false imprisonment on the ground that a felony had been com- mitted, and that the defendant had reasonable and probable cause to suspect that the plaintiff had been guilty of it, is very different. Such a justification is in the nature of an apology for the defen- dant's conduct (/). Righh of liberty — Arrest for a misdemeanour. — Regularly neither a private person nor a constable can of his own authority, without warrant, arrest another for a misdemeanour, except for a breach of the peace, while the strife is going on, and to prevent its con- t {z) Samuel v. Fai/iie, 1 Doug. 360. (rt) Grijin v. Colciiuni, 4 H. & N. 205 ; 28 L. J., Ex. 134. m-iff/it v. Court, 4 B. &0. 596; 6 D. oc R. 625. (4) Hailcs V. Marks, 7 H. & N. 6C ; 30 L. J., Ex. 392. {c) Davis T. liussell, 5 Sing. 364 ; 2 M. & P. 604. {(/) Beckwith v. Philbu, 6 B. & C. 035 : 9 D. & R. 487. {e) I'erryman v. Lister, L. R., 3 Ex. 197 ; 4 H. L. 521 ; 37 L. J., Ex. 166. (/) Warwick v. Foulkes, 12 M. & W. 509. 156 INJURIES TO THE PERSON. [chap. VI. I'' HI I ^ 164 tmnance(i7). But it is said in Hawkins' "Pleas of the Crown," " that any private person may lawfully arrest a suspicious night- walker and detain liim till ho make it appear that he is a person of good reputation. Also it hath been adjudged that any one may apprehend a common notorious cheat going about the country with false dice, and being actually caught playing with them, in order to have him before a justice of the peace ; for the public good requires the utmost discouragement of all such persons ; and the restraining of private persons from arresting them with- out a warrant from a magistrate would often give them an oppor- tunity of escaping" (//). "These cases in Hawkins," observes Lord Tenterden, " are where the party is caught in the fact ; and the observation there added assumes that the person arrested is guilty. Where the case is only one of suspicion, the arrest is unjustifiable. The instances in Hale of arrest on suspicion, after the act has been done, relate to felony. In cases of mis- demeanour, the parties aggrieved should apply to a justice of the peace for a warrant, and not take the law into their own hands" (/). Rights of lihcrty — Arrest to preserve the peace. — For the preserva- tion ot the peace, any individual who sees it broken may restrain the liberty of him he sees breaking it, so long as the conduct of such person shows that the public peace is likely to be endangered by his acts. Any bystander may, and ought to, arrest an affrayer at the moment of the affray, and detain him until his passion is cooled, and then deliver him to a peace-officer, to be carried before a justice of the peace, to be compelled to find sureties for keeping the peace ; but a private individual who has witnessed an affray cannot after the affray has ceased lawfully give the affrayers into custody, unless they continue on the spot, and refuse to dis- perse, and there is a reasonable apprehension of a renewal of the affray (J). If the affrayers, on hearing or seeing that the police- constables are coming, run away and disperse, they cannot law- fully be pursued and taken by constables, or given into custody by private individuals, for the affray that is then ended (/.). If during an affray a bystander calls up a policeman, and directs him to take one of the affrayers into custody, the bystander does not thereby render himself amenable to an action for false imprisonment (/). A constable may ex officio arrest a breaker of the peace in his (^) Sowditch V. Sakhiii, 5 Exch. 380. Grijin v. Coleman, 4 H. & N. 2C5 ; 28 L. J., Ex. 134. (li) Hawkins, 2 P. C, c. 12, s. 20. (t) Fox V. Gattiit, 3 B. & Ad. 800. {j) Tinwthij V. Simpson, 1 C. M. & E. 757. rrice v. Sideij, 10 CI. & Fiu. 39. {k) Baijncs v. VrcwsUr, 2 Q. B. 385. (/) Deiccotirt v. Vorbishley, 6 El. & BI. 188 ; 24 L. J., Q. B. 313. CHAP. VI.J FALSE IMPRISONMENT. 157 155 view, and keep him in his house, or in the stocks, till he can bring him before a justice of the peace. " If A be dangerously hurt, and the common voice is that B hurt him, or if C there- upon come to the constable and tell him that B hurt him, the constable may imprison B till ho knows whether A lives or dies, and until he can bring him before a justice But, if there be only an affray, and not in view of the constable, it hath been held he cannot arrest him without warrant " (in). If an assault is com- mitted within view of a constable, ho has authority to arrest the offender at the time, or as soon after as he conveniently can, so as to come within the expression " recently," not only to prevent a further breach of the peace, but also to secure the offender for the purpose of taking him before a magistrate («). If a constable is preventing a breach of the peace, and any person stands in his way Avith intent to hinder him from so doing, the constable is justified in taking such person into custody, but not in giving him a blow (o), nor in handcuffing him. Rights of liberfi/ — Avrcd — What amounts to a breach of the peace. — The continued ringing at a door-bell without cause or excuse does not in itself amount to a breach of the peace, so as to justify the arrest of a pe.son by a private individual; but it is eminently calculated to lead to a breach of the peace ; and, if it is done and persisted in within view of a constable, the latter may take the aggressor into custody (p). If a man threatens to force his way into the house of another, and collects a mob at the door, and refuses to go away when directed so to do, the owner of the house is justified in directing a constable to take him into custody, in order to preserve the peace (q). It i^ust be shown that there was an actutl breach of the peace in order to justify an imprisonment. It is not enough to show that the plaintiff "made a great noise and disturbance, and re- fused to depart, and was in great heat and fury, ready and desirous to make an affray and commit a breach of the peace" (;•). Dis- turbance and annoyance of a public meeting, ]»y putting ouestiona to the speakers, making observations on their statements, and saying, " That's a lie," do not constitute a breach of the peace (.s). Nor can an imprisonment be justified on the gronnd that the plaintiff unlawfully entered the defendant's house and made a (»i) Hale, P. C. 537. (h) Jteff. V. Li(/hf, Dears. & B. C. C. 332; 27 L. J., M. 0. 1. (o) Ltri/ V. Edwards, 1 C. & P. 40. \p) a noil V. Moser, 5 M. & G. 123 ; 6 Sc. N. R. 46C. And, if the luiisanco is committed within the metropolitan police district, the offender may, if found iu the act, bo apiirehcnded by the master of the house Himmons v. MUiwaen, 2 C. B. 624. {q) Ingle V. Betl, \ M. & W. 516. {)■) Wheeler v. Whiting, 9 C. & P. 262. (s) Wooding v. Oxloi/, 9 C. & P. 1. ! 158 INJURIES TO THE PERSON. [chap. VI. 156 great noise and disturbance therein, and would not depart when requested so to do, whereupon the defendant sent for a polico- oflBcer and gave the plaintiff into custody (/). In an action for an assault and false imprisonment the defendant justified, on the ground that ho was possessed of a house and shop, that the plaintiff was unlawfully therein, and was requested to depart, which he refused to do, whereupon the defendant gently laid hands on him to remove him, and that the plaintiff then assaulted the defendant in the presence of a police-officer, and was given into custody. At the trial it was not shown that any assault had been committed by the plaintiff upon the defendant, and it was held that the imprisonment Avas unlawful, and the plaintiff entitled to damages («). But, if a man comes into a public-house, and makes a very great noise and disturbance therein, and creates alarm and disquiets the neighbourhood, his conduct amounts to a breach of the peace, and justifies the landlord in giving him into custody, and the constable in taking him into custody, if the disturbance occurs within view of the constable (^). If a man stops before the door of a dwelling-house or shop, applying abusive and op- probrious epithets to the inmates, and attracts a crowd, and refuses to desist when requested, he commits a breach of the peace {>/), RigJits of liberty — Arrest under the Larceny Act. — Every person to whom property is offered to be sold, pawned, or delivered, may, if he has reasonable cause to suspect that an offence punishable by the Larceny Amendment Act, 24 & 25 Vict. c. 96, has been com- mitted on or with respect to such property, apprehend the person offering the same, and take him, together Avith the property, before a justice of the peace ; and any person " found committing " an offence pui ishable by the Act, except the offence of angling in the daytime, may be immediately (s) apprehended by any person without a warrant, and taken before a justice, together with the property, if any {a) . Rights of liberty — Arrest for tnalicious injuries to proj)erty. — The statute for consolidating the laws relative to malicious injuries to property, enacts, that any person found committing any offence under that Act may be immediately apprehended without a (t) Green v. Bartram, 4 C. & P. 308. Eose V. Wilson, 1 Bing. 353 ; 8 Moore, 302. («) Eeeee v. Tayhr, 4 N. & M. 469. {x^ Howell V. Jackson, 6 C. & P. 723. iFebster v. Watts, 11 Q. B. 311; 17 L. J., Q. B. 73. («/) Cohen v. Iluskiason, 2 M. & W. 482. (z) Immediately, that is, after the com- misHion of the oifence, not immediately- after the discovery of it. Dcuniiiff v. Capel, L. R., 2 C. P. 461 ; 36 L. J., M. C. 97. See also Fox v. Gaunt, 3 B. & Ad. 798. Dcrecourt v. Corbishley, 6 El. & Bl. 188 ; 24 L. J., Q. B. 313. (fl) 24 & 25 Vict. c. 96, s. 103. A similar provision is contained in the Coinage Act, 24 & 25 Vict. o. 99, s. 31. CHAP. VI.] FALSE IMPRISONMENT. 159 167 warrant by any peaoe-offioer, or the owner of the property injured, or his servant, or any person authorized by him, and forth- with taken before some neighbouring justice of the peace, to be dealt with according to law (b). To justify an arrest under this statute, it must be shown that the offence prohibited and made punishable was actually committed (c), that the plaintiff was found and taken in the act (d), and that the person arresting was either the occupier or the landlord of the property injured. It must also be shown that the trespass was a wilful and malicious trespass. A trespass can only be wilful and malicious where it is committed by a person who knows that he has no claim or pretence of right to enter the land. If he had reasonable ground for supposing that he had a right, his conduct can neither be called wilful nor malicious {c). Mights of Hberty — Arrest of persons committing indictable offences in the night — And other offences. — It is lawful for a private indi- vidual to apprehend any onu who shall be "found committing" any indictable offence in the night, i.e., between 9 p.m. and 6 a.m., and to convey him, or deliver him to some constable or other peace-officer to be conveyed, before a justice of the peace, to be dealt with according to law (/). Arrests may also be made of persons "found committing" offences against the Rural Police Act {g), by the owner of the property or his servant, or any person authorized by him. So, also, owners and occupiers of land and their gamekeepers, &c., have power to arrest poachers (/<). Rights of liberty — Arrest of ])ersons disturbing divine service. — Any person who is guilty of riotous, violent, or indecent behaviour in any church or chapel, or duly certified place of religious worship, or in any churchyard or burial-ground, or who molests, disturbs, vexes, or troubles any preacher duly authorized to preach therein, or any clergyman celebrating divine service, &c., may, immediately on the commission of the misdemeanour, be appre- hended by any constable or churchwarden of the place and taken before a magistrate (J). To bring the offender within the statute it must be shown that the disturbance was wilful and inten- tional (k). A clergyman engaged in collecting the offertory while another clergyman is reading the offertory sentences is not cele- brating divine service within the meaning of this Act ; though it Avould seem that for the churchwardens or other persons to (b) 24 & 25 Vict. c. 97, s. 61. (<•) Parriiiffton v. Moore, 2 Exch. ij25. (rf) Simmons V. Milliiigen, 2 C. B. 530. (c) Looker v. Ualcomb, 4 Bing. 183 ; 12 Moore, 416. {/) 14 & 15 Vict. c. 19, 8. 11. iff) 10 & 11 Vict. 0. 89, 8. 16. (h) 9 Geo. 4, c. 69, s. 2. (i) 23 & 24 Vict. c. 32, as. 2, 3. (A) Williams v. GUnister, 2 B. 699. & C. 160 INJURIES TO THE PERSON. [chap. VI. fi: 158 interfere with him while so doing might render them guilty of the offence of brawling within the first part of t\w section (l). Rights of Hhertij — Aired of vagranta and persons found coni- mittiiig acts of public indeccncg. — The Vagrant Act, 6 Geo. 4, 0. 83 («i), authorizes any person whomsoever to appreliend any one found committing any of tlie acts of vagrancy specified in sect. 4 of the statute, such as fortune-telUng ; indecent exposure of the person in any street, road, or place of public resort, or within view thereof, with intent to insult any female ; gathering of alms by exposure of wounds and deformities ; collection of alms by false pretences ; playing or betting in streets or public places with instruments of gaming, &c. Itights of liberty — Arrest of fugitices. — By the 44 & 45 Vict. c. 09, persons accused of committing offences (n) and absconding, are liable to be arrested under an indorsed or provisional warrant and brought before a magistrate. Rights of liberty — Arrest under the Merchant Shipping Act. — By the 25 & 2G Vict. o. 03, s. 37, power is given to the master or other officer of any duly surveyed passenger steamer and his assistants to detain persons whose name and address are unknown, and who have committed any of the offences specified in the Act, such as being drunk and disorderly, and refusing to leave a steamer after request and return or tender of the fare paid ; molesting passengers after warning by an ofiicer not to do so ; persisting in entering or refusing to leave a steamer having its full complement of passengers; travelling or attempting to travel, without previous payment of the fare, with intent to avoid payment ; proceeding beyond the distance for which the fare is paid, with intent to avoid payment for the additional distance ; refusing to leave the steamer on arriving at the point to which the fare is paid ; refusing either to pay the fare, or to exhibit the ticket or receipt for the fare, when demanded ; wilfully obstructing any of the crew in the execution of their duty upon or about the steamer, &c. Rights of liberty — Metropolitan police. — Persons may also bo arrested in many cases for offences committed within the Metro- politan Police District. Rights of liberty — Arrest by servants of railway companies. — Many Acts of Parliament under which railway companies are incorporated, authorize any officer or agent of the company to seize and detain any person whose name and residence shall be unknown, who shall commit any offence against the Act, and to convey him (l) Cope V. Barber, L. E.., 7 C. P. S93 ; 41 L. J., M. C. 137. (m) Extended by the 34 & 35 Vict. c. 112, and the 36 & 37 Vict. c. 38. («) Punishable with hard labour for twelve months, or any greater punieh- ment. Sect. 9. CHAP. VI.] FivLSE IMPRISONMENT. Ifil 159 with all convenient dispatch before some justice, &c., without any other warrant or authority than that given by the Act. These statutes do not authorize railway companies, their officers or agents, to take a person into custody, or to detain him, for riding in ti first-class carriage with a second-class ticket, or for riding in a carriage without a ticket, or for refusing to pay his fare when i.. is demanded, or for mere acts of omission or offences against by- laws (o). By the 8 Vict. o. 20, ss. 103, 104, a penalty is imposed upon any person travelling on a railway without having paid his fare, with intent to avoid payment thereof, and power is given to all officers and servants, on behalf of the company, to apprehend such person until he can conveniently be taken before a justice. In the ordinary course of affairs, the company must determine whether they will submit to what they believe to be an imposition, or use this summary power for their protection ; and, as the decision whether a particular passenger shall be arrested or not must be made without delay, it must be presumed that the officers of the company charged with the management of traffic have authority to determine whether passengers are to be taken into custody for this offence ; and, if by mistake an innocent person is apprehended by order of a superintendent, the company will be answerable for the ^vrong done (p). Pulling down beards set up by the company, and other injuries to their property, seem to be offences for which persons found in the commission of them are liable to be at once taken into custody, and carried before a magistrate. Eights of liberty — Imprisonment by order of a judge or judicial -All judges of a Court of record have power to commit to officer. the custody of their officer sedeute curia, by oral command, without any warrant made at the time. Thia proceeds upon the ground that there is, in contemplation of law, a record of such commit- ment, which record may be drawn up when necessary. A prisoner is in lawful custody although committed to prison for the purpose of being brought up again for re-hearing, without any warrant or commitment in writing {q). All Courts of record have power to fine and imprison for any contempt committed in the face of the Court ; for the power is necessary for the due administration of justice, to prevent the Court being interrupted. The superior Courts at Westminster may also imprison for contempt out of Court ; for they were (o) Chilton V. London and C'ro)/d(in Rail. Co., 16 M. & W. 231. Gnff v. Great Northern Hail. Co., 3 El. & El. 672 ; 30 L. J., Q. B. 148. See Ponlton V. L. ^ S. ir. Rail. Co., L. R., 2 Q. B. 634 ; 36 L. J., Q. B. 294. ( p) Gaff V. Great Northern Rail. Co., 3 El. & El. 672 ; 30 L. J., Q. B. 148. (q) Kemp v. Neville, 10 C. B., N. S. 523; 31 L. J., C. P. 166. Throgmm-ton V. Allen, 14 M. & W. 70. M 162 INJURIES TO THE PERSON. [CHAP. VI. 160 originally carved out of the one supreme Court, and are all divisions of the AuL Jieffis, where it is said the king in person dispensed justice ; and their power of committing for contempt is an emanation of the loj al authority; for any contempt of the Court is a contempt of the sovereign. But inferior Courts of record have no power to imprison for contempt of Court when that contempt is committed out of Court, as the writing or publication of articles reflecting on the conduct of the judge (r). Under the Bankruptcy Act, 1883 (s), the Court may order the arrest of a debtor who has been served with a notice if the Court thinks he is going to abscond or remove his goods, or if he fails to attend his examination. Jtig/i(8 of liberty— MalicioHS arrest— By the 32 & 33 Vict. 0. 62, s. 6 (which is a re-enactment in effect of the 1 & 2 Vict. 0. 110, ss. 1 to 10), arrest on mesne process is abolished; but it is enacted that, if a plaintiff shall at any time before final judgment prove, by evidence on oath, to the satisfaction of a judge, that he has a cause of action against the defendant to the amount of 50/. or upwards, and that there is probable cause for believing that the defendant is about to quit England, then it shall be lawful for the judge to order the defendant to be arrested and imprisoned for a period not exceeding six months, unless he gives the requisite security, not exceeding the amount claimed in the action, that he will not leave England without the leave of the Court. The foundation, therefore, on which the liability of a person for a malicious arrest must now rest is, that the party obtaining the order or authority from a judge for the arrest has imposed on the latter by some false statement, some suggestio falsi or suppressio veriy and has thereby satisfied him, not only of the existence of the debt to the requisite amount, but also that there is reasonable ground for supposing the debtor to be about to quit the country. If, without fraud or falsehood, upon an affidavit fairly stating the facts, the party succeeds in satisfying the judge that the defendant is about to quit the country, and so obtains an order for a capias to arrest him, he is not liable to an action, though the defendant had no such intention. The party arrested has the power of making an application to a judge or the Court praying to be discharged out of custody ; and the discharge will be granted as a matter of course, if such party succeeds in satisfying the judge or Court that he has not, nor ever had, the intention imputed to him ; but the discharge affords no ground of action against the party procuring the arrest, if the (r) Per Cookbum, C. J., Eeg, v. Lefroy, L. R., 8 Q. B. 134 ; 42 L. J., Q. B. 121. («) 46 & 47 Viot. 0. 62, s. 26. ;i^ii^', CHAP. VI.] FALSE IMPRISONMENT. 103 161 original order for the arrest was fairly obtained (t), as it is a judicial act, and a person concerned in enforcing it is not respon- sible for its correctness (ii). Where, however, the facts are not truly stated, and the Court or judge has been put in motion without reasonable and probable cause, and the party making the affidavit, or procuring the order for the arrest, was guilty of falsehood, or of culpable negligence in swearing to facts without knowing whether they were true or false, there will bo evidence of malice, and he will be responsible in damages (,/•). Any statements or declarations made by the defendant tending to show that ho had no reasonable or probable cause for believing, and did not believe, that the plaintiff was about to quit England, are, of course, evidence against him to show that he was actuated by malicious motives in procuring the order for the arrest (//). Where the defendant, for purposes of extortion, had placed a writ in the hands of a sheriff's officer, with instructions to arrest the plaintiff unless he would give up some property, and the officer finding his way to the plaintiff's sick bed produced the writ and demanded the property, telling the plaintiff that unless it was delivered up to him a man would be left with him, and tlie plaintiff yielded to the pressure, and gave up the property, it was held that these facts amounted in judgment of law to an arrest (s). Where the plaintiff who had been arrested under a writ of ne exeat paid the sheriff the sum for which the writ was marked, but did not move to discharge the writ, it was held that it must be taken to have been properly issued, and, conseqiiently, that the plaintiff could not recover {a). (t) Lanieh v. Ficldwa, 16 M. & W. 207. («) Williams v. Smith, 14 C. B., N. S. 696. {x) Gibbons v. Alison, 3 C. B. 185. Itoss V. Norman, 6 Exch. 359. (y) Petrie v. Lamont, 3 M. & Q. 702 ; 4 Sc. N. R. 339. (i) Grainger y. Hill, 4 Bing. N. C. 212; 6 Sc. 680. In an action for a malicioua arrest under a judge's order, the plaintiff must, under the plea of not guilty, bo prepared to prove the a£Sdavit made by tho defendant before the judge by production of tho original or an examined or office copy {AriintMl v. White, 14 East, 224. Crook v. BotcUug, 3 Doug. 75. Casburn v. Meid, 2 Moore, 60), and must show that the defendant made the affidavit, or used it {Rccs v. Jiowen, McCIel. & Y. 392). The judge's order for holding the plaintiff to bail should be proved by production of tho original order, purporting to be signed by one of the judges of the superior courts (8 & 9 "Vict. c. 113, b. 2). Where the plaintiff put in evidence the judge's M order, and a writ of capias which had been issued thereon and lodged with tho sheriff, but tho capias was not shown to have been returned, neither was any warrant produced, but it was proved that on tho defendant being told that tlio plaintiff was in custody he said, as he had got him fast ho would punish him, and further, that Ids attorney attended before the judge to oppose tho plaintiff's discharge, it was held that there was sufficient proof against the defendant, without the production and jiroof of any warrant {Petrie v. Lamont, 3 M. & G. 707 ; 4 Sc. N. K. 339). If the defendant has not by his conduct and declarations admitted that tho arrest was made by his orders and directions, the writ under which tho arrest was effected may bo proved by production of tho original writ, sealed with the seal of tho Court ; or, if it has been returned and become matter of record, it may be proved by a certified or examined copy. (a) Lcci v. J'attcrson, 7 Ch. D. 866: 47 L. J., Ch. 616. I ■ I 5 164 INJURIES TO THE PERSON. [CIIAP. VI. 162 If a solicitor maliciously, and without roasonablo and probable cause, knowing that his client has no just claim against the plaintiff, assists in putting the law in motion, and effects an imlawful and malicious arrc'st, ho, as well as his client who has authorised the proceeding, will be respouwiblo in damages (A). IthjhtH ()/ Hbcrti/ — Dctctdion of rccniitn and dcucrlcrs. — The Articles of War do not justify the arrest and detention by an officer of any but a recniit or a soldier. The annual Mutiny Act generally enacts, that every person who shall knowingly receive enlist m out-money from certain persons employed in the recniiting servii "shall be doemod to be enlisted as a soldier in Her Majesty's service" (r). If a person apprehended as a de&erter turns out to be a civilian, and not a recruit or soldier, the parties who approhouded him, or ordered or procured his imprisonment, will be responsible in damages for the wrong done ; for none are bound by the Mutiny Act or the Articles of War except Her Majesty's forces (ec). liiyhts of liberty — Imprisonment of dangerous htnatiea. — A private person may, without any warrant or authority, confine a person disordered in his mind, who seems disposed to do mischief to him- self or to any other person {d), the restraint being necessary both for the safety of the lunatic and the preservation of the public peace ; but, as the custody of these unfortunate persons is matter of great public interest, the legislature has, by a series of enact- ments, established appropriate tribunals and forms of proceeding for ascertaining their exact mental condition, and imposing the necessary restraint upon their actions, under the supervision of public functionaries. The Lunacy Acts {e) establish a form of proceeding, based upon medical certificates, for tlie purpose of facilitating the recep- tion of persons of unsound mind, who are dangerous to themselves or to others, in asylums where they are to be properly restrained and treated. If the forms of proceeding prescribed by the Acts are not strictly complied with, the imprisonment is unlawful (/). The fact of a" person's acting so as to appear to be of unsound mind is no justification to another for locking him up as a lunatic, without compliance with the requisite form of proceeding. It must be proved that the person imprisoned was, at the time the restraint was put upon him, a dangerous lunatic. The statutes (i) Stockky v. Hornidge, 8 C. & P. 16. Ic) WoUon V. Gavin, 16 Q. B. 48. lee) See axte, p. 149. \d) Bro. Abr. Faux Imprison men t, pi. 28. (e) 8 & 9 Vict. c. 100. 16 & 17 Viot. c. 96. 18 & 19 Vict. c. 105, b. 9. 26 & 26 Viot. c. 111. 48 & 49 Vict. c. 52. See Gore v. Grcij, 13 C. B., N. S. 138 ; 33 L. J., C. P. 109. As to the care of idiots, see 49 Vict. c. 25. (/) Coleridge, J., Iteg. v. Finder, 24 L. J., Q. B. 148. Meg. v. Munster, 20 ib., M. C. 48. Norris v. Seed, 3 Exch. 782. CHAP. VI.] FALSE IMPUISONMKNT. l().j 163 now in force as to tlio cortificntes required to bo made by the friend of a supposed lunnlic and th(» niodif)al men, protect every person aeting in purHuance of the Act, except the person signing the order for the confinement of the lunatic. Tlie C(!rtifi(!ates of nil the doctors and physicians in the world will not justify one person in taking and confining another as a lunatic, miless it is proved that the person confined was really a dangerous madman, or unless the person justifying the irai)ri8onment is the medical man, or the keeper of the asylum, or his servant, entitled to statutory protection (e,Z^iwck.\Z2. Horn V. Swii\ford, D."& Ry. N. P. C. 20 ; 1 D. & Ry. Office of Magistrates, 361. a) Fdgell v. Francis, 1 M. & G. 222 ; 1 Sc. N. R. 121. Buckle v. Money, 2 WUs. 206. {1} TuUidge v. Wade, 3 "VVils. 18. rr im 1NJUHIK8 TO TlIK I'KUSON. [ciIAP. VI. lieHHl Pi- 1 « 164 prisoned for six hourfl, brought their sovoral actions, and tho jury gave each of thorn 300/. damages, tho Court declined to raoddlo with tho verdict, although it was j)rovcd that each of tho plaintiffs bad boon civilly treated and fed upon boof-steoks and porter during tho period of their iraprisonmont (w/). "If tho jury," observes Pratt, C. J., " had boon confined by their oath to consider tho mere personal injury only, perhaps 20/. damages would havo boon thought sufliciont ; but tlio small injury done to tho plaintiff, or tho inconsiderablonoss of his station and rank in life, did not appear to tho jury in that striking light in which tho groat point of law touohing the liberty of tho subject appeared to them at tlio trial." Money paid by tho solicitor of the plaintiff to procure tho release of tho plaintiff from an unlawful imprisonment is recover- able as part of tho damages naturally and directly resulting from tho wrongful act ; *' for a man may say that ho has been forced to pay that which another who is his agent has been forced to pay for hira"(«). Every expense that tho plaintiff necessarily incurs in order to restore himself to a oompleto state of freedom from imprisonment is recoverable as part of tho damages. Where a plaintiff, by being bailed, obtained only an imperfect release, being in the hands and at tho mercy of persons who might at any time render him back to gaol, it was held that tho expense of removing himself from that position was only one of tho steps necessary for completing his discharge from the original imprison- ment, and that, if it were necessary for tho plaintiff to set aside an inquisition in order to restore himself to a complete state of freedom, he was entitled to recover the expense thereof, as part of tho damages of the original wrongful act (o). liciiiedies for injuries to t/ie person — Damayes too remote. — Where a passenger on board ship was assaulted and imprisoned for one night by the captain, and in consequence thereof took the first opportunity of leaving the ship, and paid 100/. for his passage home in another vessel, it was held that, in order to recover the ] 00/. as part of the damages for the assault and imprisonment, it was necessary for the plaintiff to prove that there was fair and reasonable ground for fearing a renewal of the ill-treatment, and that he left the vessel under the influence of such fear, and not merely because he was angered and displeased with the captain, and could not continue on board with ease and comfort {p). im) Huekle v. Momy, 2 Wila. 205. (w) J'ritchct V. Boevei/, 1 Cr. & M. 778. (o) Fojrall V. Jlanutt, 2 El. & Bl. 298 ; 23 L. J., Q. B. 7. {p) Boyee v. Bayliffc, 1 Campb. 58. And SCO Walker v. Otding, 1 H. & C. 621 ; 32 L. J., Ex. 142. WiUmt r. lancashire and Yorkshire Bail. Co., 9 C. B., N. 8. 642 ; 30 L. J., C. P. 232. ^ ClfAP. VI.] DAMAOEfl. 167 166 Whoro tho plaint ifT, in an action for an assault and false imprisonment, soiight to mako tho dofondant rosponsiblo for tho consoquoncos of a roniand by tho magistrate, it was held tliat ho was liable only for tho first imprisonment and taking before tho magistrate, and not for the remand or any subsequent detention thereunder, they being tho acts of tho justice (7). Whoro a rail- way company removed a i)a8senger from the train (without any unnecessary violence) utidcT a mistaken impression that ho had no ticket, and tho passenger left a pair of race-glasses behind him, it was held he could not recover tho value of them as part of the damages for tho assault, although the Court admitted it would have been otherwise had he lost any part of his property in a 8C1.III0 with tho railway servants (r). licmcdhn for iiijttn'es to the person — Mitigation of dumaycs. — Where it was contended thiit the blow was unintentionally struck, tho defendant intending to strike A, when he accidentally in tho Bcuffle struck li, Bosanquet, J., told the jury that there could be no doubt but that, as the defendant struck the plaintiff, the plaintiff was entitled to a verdict, whether it was done intentionally or not, but that the intention was material in determining tho amount of damages (s). If it is proved that tho blow was unintentionally struck, and that an apology was immediately offored, tho evidence would tend materially to reduce the amount of damages. In an action for false imprisonment in giving the plaintiff in charge to a police-officer, it may be shown in mitigation of damages, that the plaintiff had for several days annoyed and insulted the defendant, by following him about the streets, and telling him to pay his debts [t). i (7) ZocAv. .IsA/ow, 12 Q.B. 870; but, in an action for a maliciuiiR prosecution, tho defcndiint will be liable for tho in- jury resulting from a remand. (r) Glover v. L. L. R., 3 Q. B. 25 ; S( S. ir. Rail. Co., 37 L. J., Q. B. 67. (*) Jamea v. Campbell, 5 C. & P. 372. (/) Thomas v. Fowell, 7 C. & P. 807. 1 T 1G8 166 CHAPTER VII. INJURIES TO EEPUTATION. SECTION I. ti'l;::M, DEFAMATION OF CHARACTER. Distinction between slander and libel. — Slander in writing or in print has always been considered in our law a giaver and more serious wrong and injury than slander by mere word of mouth, inasmuch as it is accompanied with greater coolness and delibera- tion, indicates greater malice, and is in general propagated wider and further than oral slander. Hence words of a depreciatory character, which, if spoken only, would not be actionable, may become so by being put into writing or print and published. " There is a very material distinction," observes Grould, J., " between libels and words. A libel is punishable both criminally und by action, when mere speaking the words would not bo punish- able in either way." For speaking the words " rogue " and *' rascal " of any one, an action will not lie ; but, if these words were written and published of any one, an action would lie (a) . Merely to call a man a swindler, or a cheat, or dishonest person, by word of mouth, is not actionable (b), unless it is spoken of him in his trade or business, so as to have damaged him with his ous- (a) Villicrs v. Moiisley, 2 Wils. 403. 5 Co. 125 b. The tnio distinction be- tween slander and libel is in the diffe- rence in the mode of communication, and the conse(iucnt iirosiinied difference in the effect upon the reputation of the person to whom they relate. Slander consists in words s/jukcn of another to a third person, or ideas (tonimuuicatod by signs or other mcHiis not durable, the natural or actual ellVct of which is cal- culated to or actually does injure him in his reputation or Imsini'ss : White v. Nichotls, -A How. (IT. 8.) 2(i(i. A libel con8i>ts of a malicious publication re- specting anot];er, eit)ier by printing, writing, painting, picture, orothcr dur- able mode, which charges him, ex- pressly or by innuendo, witli something which is calculated to injure him in his business, trade or profession, or which is calculated to make him infamous, odious, or ridiculous, or exposes him to the hatred and contempt of others : Daniels, J., in White v. Xicholls, ante ; llillhoitse V. Didiniiif/, 9 John. (N. Y.) 2U ; Tai/hr v. Stale, i Ga. 14 ; Dexter V. S/)e(,i; 4 Mass. (U.S.) lirj; State v. Fiirley, 4 McCord. (8. C.) 317; Com. v. Chip, 4 Mass. 1G5. To publish of another anything which is per se slan- dei'ous, or which in law is reg.irded as Bucli, by reason of the special damage resulting from their speaking, is libel- lous : Vielc V. Grcu, 18 How. Tr. (N. Y.) 336 ; Thomas v. Cromr/l, 7 John. (N. Y.) 204 ; Kobbitis v. Treaduuy, 2 J. J. Mar. (Ky.) 540. (4) Saiik V. Jardiie, 2 H. BI. 532. SECT. I.] DEFAMATION OF CHAUACTEU. 1G9 tomers (e) ; but, if such words are published in writing or printing, they are actionable ^;' «<'» without proof of special damage (m) ; and so are words imputiug to a tradesman that he is in the constant habit of cheating and defrauding his customers, and those who deal with him («), and words imputing banlcruptcy or insolvonoy to a person engaged in trade, such as, " if he does not oomo and make terms with nio, 1 will make a bankrupt of him, and ruin him "(f). And it is not 173 necessary that tlie office or trade should be ono of w]\\v\\ the Court can take judicial notice ; for it is actionable without special damage to say of a gamekeeper that he kills foxes if it is his d\ity as a gamekeeper not to do so (.p). But " if one tradesman will pretend to be a greater niliat than others, it is lawful for them to support their own credit in the same way ; " and, consequently, it is not actionable for one tradesman to depreciate the wares and merchandise of another In comparison with his own. So long as it is a mere puff by ono of n I I Kelloy (Ga.), 57 ; Williams v. Holdridge, 22 Barb. (N. Y.) 396 ; Kichoh v. Gay, 2 Ind. 82 ; Jlewitt v. Mason, 24 How. Pr. (N. Y.) 366 ; Fike v. Van Warmer, 5 ib. 171. (k) Carslake v. Mapledoram, 2 T. R. 475. (l) Per Cur., JTarinan v. Bclaney, 2 Str. 898 ; 1 Barnard. 289. Any worda epoken of a person ia liis office, trade, profession or businoHS, which tend to impair his credit, or charge him with fraud or indirect dealings, or with in- capacity, and tend to injure him in liis business or calling, are actionable : Ostram v. Calkins, 6 Wend. (N. Y.) 263 ; Chaddoekv. Briggs, 13 Ma.sH. 218. Thus to charge a clergyman with incontinence {Demarcst v. Haring, 6 Cow. (N. Y.) 76), or with being a drunkard {McMillan v. Jiirch, 1 Binn. (Penn.) 178), or an at- torney with being "a d d rascal" (Jirown V. Mma.1, 2 Trc.ad. (S. C.) 23/)), or dishonest {Chipman v. Cook, 2 TyU'r (Vt.) 45), that he discloses his client's secrets to injure him {(Jan v. Sildon, 6 Barb. (N. Y.) 416 ; Higgs v. Bennison, 3 John. Cus. (N. Y.) 198), or a physician with malpractice or want of skill {Secor V. Harris, 18 Barb. (N. Y.) 425 ; Bn-guld V. I'achtcr, 2 T. & C. (N. Y.) 532; Carroll V. White, 33 Barb. (N. Y.) 425), is ac tionable per sc. {in) Griffiths v. Lewis, 7 Q. B. 65. («) Ileevc V. Holgate, 2 Lev. 62. (o) Brown v. Smith, 13 C. B. 599. Ld. Deuman, C. J., Robinson v. Marchant. 7 Q. B. 918. {p) Foulger v. Newcomb, L. R., 2 Ex, 327; SOL. J., Ex. 169. 1 170 INJUIJIES TO Ui:i'UTATION. [cilAr. VII. two rival tradosmen, recomraondihg hia own artielos in proforenco to those of another, it is defensible on account of the interest the defendant has in the matter ; but to say generally of a tradesman that ho is in the habit of selling goods which he knows to bo bad, is actionable (y). In order to recover damages for slanderous words spoken of a tradesman or professional man in his trade or profession, it must be shown how the words are connected with his profession. To impute immorality to a clerk of a gas company, to say that he *' consorts with whores," is '* a disgrace to the town," and " unfit to hold his situation," is not actionable, because they are not connected with his (;haractor and conduct as a clerk. lie may be a very good clerk, well fitted for his duties, altliough ho is scan- dalously immoral (/•). Words imputing misconduct, or gross ignorance or incapacity, to professional men, in the discharge of their professional duties, are actionable per sp, without proof of any special damage ; such as words imputing to a practising physician that ho is a quack or a mountel)ank (s), or that ho has killed a patient through igno- rance of the first jirinciples of his profession (/) ; or words imputing to a surgeon or accoucheur the want of a proper qualifi- cation for his profession or business, or the want of skill, or of any professifjnal requisite, or that his character is so bad amongst his professional brctiiioii that they will not meet him (?/) ; or to say of a master mariner in comiiiand of a vessel that he was frequently dnink, and in that state liad to bo carried on board his vessel (r). But words conveying an imputation against a medical man not necessarily connected with his profession, such as a general imputation of adultery, are not actionable (//) ; but, if the state- ment is that he has seduced or committed adultery with one of his patients, it would be otherwise. V. Harlow, 5 Q. B. 633. 1 Cr. & Jerv. (q) Eians Ante, p. 9. ()•) Lumby v. Altdaij, 301. («) Gntldarl v. If'tsilfonf, 1 Roll. Abr. ol. (t) Tiillji V. Alewiii, 11 Mod. 2'il. (») NuittlKf V. Dciiiii/, 1 E.xoli. 1ik/i, 3 N. y. 177 ; mrr V. Alleiiibl N. H. 177; Hcnirh v. lup/mm, 10 John. (N. Y.) 281 ; Squirt- v. O'lmH, H W'md. (N. Y.) Ifil ; lliirli v. Ikiisloii, 26 Miss. 15fi ; JUinm v. Tniiideii, 31 Me. 321. To say of u person whose business necessarily leotls to dealing on credit, "He keep.s false books" {Rath- burn V. KmUjh, 6 Wend. (N. Y.) 407), as of a merehant (llnclms v. Itirhardsoii, C) .John. (N. Y.) 473), or a blacksmith (Iliirtch V. Nickcrsnii, 17 ib. 207), is ac- tionable per sp, because the natural and necessary effect of tlie words is to injure him in his business. But where the words do not ticcessarily have that effect, tliey are only actionable when special damage results fioin their speaking, and such special damage must be alleged and proved : H'oodbitry v. Tlwmptoti, 3 N. H. 194 ; Undvrhill v. iniloii, 32 Vt. 40 ; Fry v. liiirmU, 28 N. Y. 324 ; Cook V. (hole, 100 Mass. 194. And it must be made to appear by proper averments how the special damage arises, and the defect cannot bo cured by proof : Snell V. Sto'ie, 13 Met. (Mass.) 278: Swan v. Tappan, 5 Gush. (Mass.) 104. Sl'CT. I.] UKl'AMATION OF CHAUAC'l'KK. 177 "i 174 Words imputing to a barrister that ho has wilfully ami corruptly deoeivod his clieut, and rovoalod tho secrets of his cause, or that ho has given vexatious counsel, and seeks only to fill his own iiockots, without regard to the interests of his client h, lire actionable (.-) ; and so are words imputing to a practising solicitor that ho is well known to be a corrupt man, and to deal corruptly in iiis profession (a) ; or words imputing to him that ho betrays tho secrets of his clients, or that ho is ignorant of his profession, and is no lawyer, and that fools only go to him for law, or that he is guilty of malpractice, or is a cheat, a rogue, or a knave, in his profession (b). But more vituperative language or general abuse of a professional man is not actionable, unless it has reference to his conduct in his profession. Thus, to call a solicitor a clicatiu^ knavo is not actionable ; but to say that he cheats his clients is actionable (r). In all actions founded on words imputing to a professional man conduct which disgraces and injures him in his profession, it must be proved that the plaintiff was in the exercise and practice of his profession at the time of the utterance of the slander ; for, if he lias ceased to exercise his })rofessioii or em- ployment at the time tho words are spoken, the words aro not actionable on the ground tliut they wore spoken of him in his profession (d). To say of a beneficed clergyman tlrit he is drunk in church, or that he preaches false doctrine, lies, and malice, and ought to be degraded {>■), or that he is an old rogue, and a contemi)tiblo fellow, hated and despised by his i)arishioner8 (,/), or that he has preached a seditious sermon, and has moved tho people to sedition {(j), is actionable. Words also imputing fraudulent and dishonest conduct to a beneficed clergyman in some clerical matter (//), or accusing him of incontinence, or tho preaching of false doc- trine, are actionable, as they tend to injure him in his pro- fessional character, and, if true, to subject hiiu to a deprivation of (--) f»,.y V. r,'/v7//, 1 Roll. Abr. '>7. Kiiiji V. i.akt; 2 Ventr. 28. («) Itirchlcifs case, 4 Rpp. IG ii, pi. (J. [b) lUniks V. Alien, 1 Roll. Al)r. ol. lialcci- V. Morfiie, 1 Siil. 327. J)(ii/ v. JlitUcr, W Wils. ;')!). ((•) Allnton V. Muinr, Hot. 167. \ilvi; 1 B. & r. N. R. 204. liKtlur- foiil V. Kvtiiis, G I5ing. 4(1 1. Wat, when the liU'l (ir slander imputes to a medical or li'gal practitioner that he is not pro- perly (pialificd, and tho professional (piulifieatiou i.s denied, the plaintiff nnist be prepared to prove it, by pro- ducing his diploma cr certificate, duly sealecl or signed, and stamped, where a stamp is re(piisite, (() Dothl V. ItiihbiKuii, Aleyn, G3. Ciiiiii/rii V. ll'aUlcii, 3 Lev. 17; 1 Roll. Alir. r.s. (/) Miisf/riiir V. JIum/, 2 Str. 94G. {if) Jlri//ri(/(fi'ii ciiitr, 4 Co. 19 b. ('/() Rmbvitoii V. t'o//,t, 10 Q. B. 4G1 ; IG L. .)., Q. B. 403. N T 17« IN.IUUIEH TO KEPUTATION. [CHAP. Vlt. i m ;i::|:t 11 ■• I 175 Ills 1>enofico, and to a dogrmlation of orders, and, ooiisofiuoiitly, to a loss of temporal oraolumont. But, if, at the time of the Bpeaking of tlio words, tlie phiintiff is not lu'iiefieed, and is not in tlio actual receipt of profes.sional, Lcnelicial emolument as a preacher, lecturer, curate, or the like, tliero is no aetual damage, and an action for slander is not maintainable (/) ; and, •whenever the words imply only general ahusc, and do not affect the jJalntiff in his professional and clerical cliaracter, they are not actionable without proof of nitccial damage (/.). Di'fnnuitorij irnnh impntiiKj official viiscomhu't to a pcvHon in (in office of pfojit or frimf are actionable />rr nc. — Thus, to say j)ublicly of a man who is in the enjoyment of an office of honour, profit, or trust, tliat ho is wanting in integrity in his office, or that lie habitually neglects his official duties, or that ho is a corrupt man and takes bribes, is acfionablo; but, if the words merely impute to hinx want of ability and general imfitness for his post, the words are not actionable without proof of special damage (/), Whenever words are souglit to bo made actionable on the ground that they were spoken of a man in office, it must bo shown that thoy wero spoken of him in his character or conduct in his office, and that thoy impute to him the want of some qualificati' u for, or misconduct in, liis office ; for, if they impute to hini only general misconduct and unfitness for his situation, they will fail to support an action, without proof of special damage (in). Bcfumatonj words rendered actiona/j/e hy reason of special damage. — If any special damage has been sustained by the plaintiff by reason of the utterance of slanderous words, an action for damages is then maintainable. Thus, to say of a spinster that she is in the family way, or that she has had a child, is not per se actionable ; but, if the girl is about to be married, and sho loses her marriage in consequence of the utterance of the slandti-. a very grave cause of action arises («). If, in consequence of the utterance of slanderous words by the defendant, the plaintiff has lost a situa- tion, or been refused employment, there is special damage result- ing from the wrongful act, capable of sustaining an action. Thus, where the plaintiff was chaplain to a peer, and the defendant falsely alleged of him that he had had a bastard, whereby he lost the chaplaincy, it was held that the plaintiff was entitled to main- tain an action for compensation in damages on the ground that the chaplaincy was a temporal preferment (o). So the loss by a (0 Oallueyv. Marshall, 9 Excli. 295; ante, p. 173. Ilopwoody. Thorn, 8 C. B. 23 L. J., Ex. 78. 313. [k) Pemherton v. Colls, 10 Q. B. 461 ; (w) Davis v. Gardiner, 4 Co. 16 b, 16 L. J., Q. B. 403. pi. 11. (/) Buc. Abr. Slandke, B. (o) Payne v. Bcaumorris, 1 Lev. 248. (m) Lwnby v. AUday, 1 Cr. & J. 301, "■^Wl^^VH^^Ji SECT. I.] DEFAMATION OF CffAH Af'TER, 170 176 nmrriod woman of tlio hospitality of frionds by reason of Blandor, is a suHioiont "toniporal" danuigi» to suHtaiii an action {/>), althoiifjli the Inss of hor liii-liand's society und conjiijj;al attentions only Ims hnon Udd iiisutficii'nt (y), unless tin' slander amounts to nn iiiii.utiii in of ailultcry on tho wife, and tlio Imshand loaves her in consequonco of such imputation (r). ]iut words spoken of a nvari'iod Avoman imputing want of chastity to hor, whereby sho was not allowed to continue a member of a religious society, do not constitute fufRcient temporal damage (s). Will 11 proof of special damage is essential to tho maintenanco of tho action, it nmst appear to bo IL • natural and necessary result of tho speaking or publishing of tho words, or it will fail to sustain tho action. AVhoro tho plaintilf alleged that ho had engaged Madame ^Fara to sing at I lis oratorio, and that the defendant published a libel concerning her, in consecpienco of which sho was prevented from singing, from an apprehension of being hissed, whereby the plaintiff lost tho benefit of her services, it was bold that tho injury complained of was too remote, and not to bo connected with the cause a;- digued for it ; that, if tho libel was injmious to Madame Mara, sho might have an action for it; but her refusing to perform might have proceeded from groundless apprehension or mere caprice, and not from tho publication of tho libel; and tho plaintiff therefore was non-suited (/). So, whore tlio plaintiff was a candidate for membership of a club, and was not elected on a ballot, and afterwards, upon a meeting being called to consider tho rules of the club, the defendant spoke certain words, not actionable in themselves, of tho plaintiff, whereby he induced a majority of the members to retain tho rules under which the plaintiff had been rejected ; it was held that tho damage was not pecuniary, and was incapable of being estimated in money, and was not the natural or probable consequence of the defendant's words (»). A statement false and malicious, but not in itself defamatory, made by one person in regard to another, whereby that other may probably, under some circumstances and at the hands of some persons, suffer damage, will not, even though damage has resulted in fact, support an action. Thus, where the defendant falsely and maliciously spoke of the plaintiff, a working stone-mason, " lie was the ringleader of the nine hours' system," and, " He has ruined tho town by bringing about the nine hours' system," and, "He has stopped several good jobs from being (p) Bavics V. Solomon, L. R., 7 Q. B. 112; 41 L. J., Q. B. 10. {(A Lynch v. Kniyht, 9 H. L. C. 677. (r) Per Ld. Campbell and Ld. Cruii- worth, ih. 691, 596. (s) Robei-ln V. Itobcrls, 5 B. & S. 384 ; 33 L. J., Q. B. 249. (<) Anhhi/ V. Uufrison, 1 Esp. 48. {ii) ClKtmheilaiii v. lioyd, 11 Q. B. D. 407 ; 52 L. J., Q. B. 277. n2 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 Itt Bii H22 Ef 124 "" ^ US, 1^ i^ 1^ 0% RiotDgraphic Sciences Corporation 23 WIST MAIN STREIT WnSTIIt,N.Y. 145M (716) •72-4503 .'-C*. III 180 INJURIES TO REPUTATION. [CHAP. VII. 177 earned out, by being the ringleader of the system at L," wheroby the plaintiff was prevented from obtaining employment in his trade at L, it was held that the woids, not being in themselves defamatory, nor connected by averment or by implication Avith the plaintiff's trade, and the alleged damage not being the natural or reasonable consequence of the speaking of them, the action could not bo sustained {<>•). If there are two distinct causes of special damage, one proceeding from the act of the defendant and jjiother from the act of a third party, and the special damage may have resulted from either, it will fail to support an action (//). If ^he special damage alleged is thai; several named persons have ceased to have dealings with the plaintiff in the way of his trade, the persons themselves must be called to prove the fact (2). If a priest, or clergyman, or minister of any religious denomi- nation, singles out any particular member of his congregation, and denounces him for misconduct in his trade or profession, or iu the execution of any office of trust, or if he defames him generally, and slanders him in the face of the congregation, where)>y he loses a situation, or is dismissed from his emploj'ment, and sustains special damage, the priest or clergyman will be answerable in damages, if he cannot prove the truth of the charge he makes ; for no minister of religion has a right to propagate slander under the guise of disseminating religious truth or suppressing vice (a). Defamafori/ icords — Where the special damage is a tcrongful act Oh the part of some third person. — It has been very generally reputed and accepted for law that the illegal act of a third party cannot constitute special damage ; in other words, that one illegal (wrongful) act cannot be a natural and proximate consequence of another illegal (wrongfiU) act. This ide" appears very fre- quently in the reports in the expression that special damage must be the natural and legal consequence of the act complained of. The case usually referred to in support of this proposition is one {b) in which the defendant falsely asserted that the plaintiff had cut his (the defendant's) cordage, in consequence of which the plaintiff's master, although under a binding contract to employ him for a term which had not then expired, discharged him, and it was held that the plaintiff could not recover. " The supposed special damage," observed Lawrence, J., " was the loss of the advantages to which the plaintiff was entitled under his contract with his master ; but he could not be considered {x) Milln- V. David, L. R., 9 C. P. 118; 43 L. J., 0. P. 84. ((/) Vicars v. Wilcoeks, 8 East, 2. {z) Tilk V. Farsons, 2 C. & P. 202. Tunniclife v. Moss, 3 0. & K. 83. («) Gilpin V. Fowler, 9 Exch. G25 ; 23 L. J., Ex. 162. Barnabas v. Traunter, 1 Vin. Abr. 396. (A) Vicars v. Wilcoeks, 8 East, 1. SECT. >■] DEFAMATION OF CHAKACTER. 181 178 in law as having lost them, for he still had a right to claim them of his master, who, without a sufRoiont cause, had refused to continue the jilaintifB in his service." " The special damage," further observed Lord Ellenborough, "must be the legal and natural consequence of tlie words spoken ; and here it is an illegal consequence : a more wrongful act of the master, for which the defendant was no more answerable than if, in consequence of the words, other persons had afterwards assembled and seized the plaintiff, and thrown him into a horsepond, by way of punishment for his supposed transgression." In a subsequent case, however, in an action for words whereby one Avho was under a contract to marry the plaintiff broke his contract, and refused to many her, it was urged agfiinst the mointenance of the action that the plaintiff had her remedy on the contract to marry her, that the breach of that contract was an illegal act of the contracting party, and therefore not special damage, because not a legal consequence of the publication ; but the action was sustained {<'). It is obvious that an illegal act, equally with a legal act, may be the natural, and even tlie intended, consequence of a publication ; and, where, as in the case of a promise to marry, the breach of it,, although illegal, is nevertheless a natural consequence of the slander, in that case the illegal act constitutes special damage. But, where the breach of a contract is not the natural consequence of the publica- tion, it does not constitute special damagf^ not because it is an illegal act, but because it is not the natural consequence of the slander {d). If the dismissal of the servant has been caused by the utter- ance of the slander against him, the special damage results from the slander, so as to render an action maintainable, although the master did not believe in the slander, and did not dismiss the servant because he thought him guilty of the charge made against him, or considered him untrustworthy. Thus, where the plaintiff set forth that she was a straw bonnet-maker, in the employ of a Mrs. Enoch, and that the defendant, who was the landlord, came to her mistress, and told her that the plaintiff tapped at the windows, and conducted hei'self shamefully and disgracefully, so that the house looked like a bawdy-house, and Mrs. Enoch dis- missed the plaintiff, but stated in her evidence that she did not dismiss her because she believed what the defendant told her, but because he was her landlord, and she was afraid ho would be offended if she did not send the plaintiff away after what he had said, it was held that the dismissal was the consequence of the slanderous words, and that damages were recoverable in respect (c) Moody V. Baker, 5 Cowp. 351. (rf) Townsond's Slander and Libel, 2nd ed. p. 201, mm 1H2 INJURIES TO REPUTATION. [ciIAl". VII. I! St:i; 179 thereof, although the mistress, to whom the slander was uttered, did not believe it (e). Defiiimttortf uonh — Unauthorized repetition of verbal slander. — "Whenever proof of special damage is necessary to maintain an action of slander, it must appear that the special damage is the immediate and natural consequence of the words spoken (/). If, therefore, the use of slanderous Avords by the defendant, not actionable per .sc, would have wholly failed to prodiice any injurious consequences, unless aided by the act of another, the injury resulting from that act of the other is not to be ascribed to the defendant. The unauthorized repetition of slanderous words is not the necessary consequence of the original uttering of the words ; and the original utterer, therefore, is not respon- sible in damages for +ho subsequent repetition of the slander by persons who had no authority from him to repeat what ho had said. Thus, where the substance of the plaintiff's allegation of special damage was that, by reason of the defendant's false repre- sentations to divers r,ersons, one John Brver refused to trust the plaintiff, and the evidence was, that the words were addressed to one Edward Bryco, and that Bryce, at a subsequent time and place, and Avithout any authority from the defendant, repeated the representations to Bryer, so that the repetition of the Avords, and not the original statement, occasioned the damage, it was held that the action was not maintainable. " Every man," ob- serves Tindal, C. J., "must be taken to be answerable for the necessary consequence of his own Avrongful acts; but such a spontaneous and unauthorized communication cannot be con- sidered as the necessary consequence of the original uttering of the Avords, for no effect Avhatevcr followed from the first speaking of the words to Bryce. If he had kept them to himself, Bryer would still have trusted the plaintiff. It Avas the repetition of them by Bryce to Bryer, Avhich Avas the voluntary act of a free agent, over whom the defendant had no control, and for Avhose aits he is not answerable, that was the immediate cause of the plaintiff's damage. We therefore think that, as each count in the declaration alleges as the only grievance the original false speaking (/•) Knight v. 'Gibbs, 1 Ad. & E. 40. lEumphrirs v. Far/.rr, 6'2 Mc. 502 ; Ifoo/i/ V. li>oo/,s, 20 111. 11.). In 3fooiY v. Slr- triison (27 Conn. 14), the plaintiff, in an action for a libellous pnblication in a newspaper charging her with theft, al- leged as special damage that she had in consequence been discharged by one W. from his employment as a seamstress in a neighbouring town ; and on the trial offered evidence that a few days after the publication W. had said to her that there were flying reports in the news- paper about her and her sister, and that it would injure his shop to have such girls there, and that ho thereupon dis- charged her : it was held, that such evi- dence was admissible, although there was no other evidence to show that "W. had ever seen the articles in question. (/) Vicars v. WHmks, 8 East, 3. SECT. I.] DEFAMATION OF CHARACTER. 183 1 of the words, the allegation that, ' by reason of the committing of such grievance, Bryer refused to give the plaintiff credit,' is not made out by the evidence "{(/). But, where the utterer of the slander directs it to be repeated in any particular quarter, or mentions it to a person whoso known 180 duty it is to repeat it, he is responsible for the repetition of it. It is then his act, and is the natural and necessary result of the utterance of the words (//). Where loss of custom is alleged as special damage, it may be proved by general evidence of the falling off of the plaintiff's business, without showing who the persons were who had ceased to deal with the plaintiff (/). False sfah'iiiciifs not di'fdmatonj. — False statements which are not of a defamatory character are not actionable, even although they may have caused damage to the subject of them {k), unless they are spoken under circumstances likely to create damage to the subject of them, and with the intention that that damage should ensue (/). Defamation — 3IaUce in law. — Malice is said to be the gist of an action for defamation or slander; but the word is not used in the popular sense, but only in the sense the law puts upon the expression. If I traduce a man, whether I know him or not, the law considers it as done of malice, because I do it inten- tionally, and without just cause or excuse (ni) ; and the circum- stance of the jury having negatived actuol malice does not render the communication justifiable (n) ; for every person who publishes matter injuiious to another, is considered in point of law to have intended the consequences resulting from his act (o). If the tendency of the publication is injurious to the plaintiff, the law will presume that the defendant, by the act of publishing it, intended to produce the injury it was calculated to effect ; and it is the duty of a judge, if he thinks the publication injurious {;/) ll'tird V. IFi'cLi, 7 Bing. 'ill; 4 M. & P. 808. rdihiiis V. Urott, 1 H. & C. 153; 31 L. J., Ex. 331. Stnriis v. llartHcll, 11 Met. (Mass.) 542. (/() Kcndilluii V. Multbij, Car. & M. 402 ; but on another poiat this case has been overruled in liluiister v. J.aiiib, 11 Q. B. D. 688 ; 62 L. J., Q. B. 726. ((') Jiidiiii; V. .S'wi7/(, 1 Ex. D. 91 ; 45 L. J., Ex. 281. (/■) miier V. David, L. E., 9 0. P. 118; 43 L. J., C. P. 84. (/) I'lf Lord Wensleydalc, Li/>ich v. Kiiiyht, 9 H. L. C. 600. Ante, p. 4. {ill) Uromage v. Prosscr, 4 B. & C. 255. Clark V. Molyimix, 3 Q. B. D. 237 ; 47 L. J., Q. B. 230. {») Maule, J., ll'cnman v. Ash, 13 C. B. 845 ; 22 L. J., G. P. 190. Gossert V. Gilbert, 6 Gray (Mass.) 94 ; Bush v. I'rassir, 11 N. Y. .357; Ziwk^rman v. Sancitschicii, 62 111. 115; I'ciiningtim v. Mirk!<, 46 Me. 217; Fry v. Vniiiett, 28 N. Y. 328; Dale v. Harris, 109 Mass. 193; JLahey v. Brooks, 20 111. 116; Jar- nigan v. Fleming, 43 Miss. 710. In Cur- tis V. Miissey, 6 Gray (Mass.) 261, it was held that the fact that the defendant had no intent to villify the plaintiff, or that ho did not know tliat tho matter was libellous, was no excuse : Watson v. Moore, 2 Gush. (Mass.) 133; Bodtvelt y. Swan, 3 Pick. (Mass.) 376. («) Fisher v, Clement, 10 B. & C. 475. 1 (■ 184 INJUllIES TO RKPIITATION. [ciIAP. VII. to tho plaintiff, to toll the jury it is a libel and action able (yj). It has, indeed, been held that, if the circumstances connected with the iitternnce of tho words rebut tho presumption of malice, there is no eaufo of action. Tluis, where tho plaintiff brought an action against one for falsely and maliciously saying of him that he had honrd he was hanged for stealing a horse, and on the evidence it ai)peared that the words were spoken in grief and sorrow for tho news, Ilobart, J., caused tho plaintiff to bo nonsuited, for it was not said maliciously {q). But it may bo doubted whether this decision would be followed at the present day. ICl Dcfamnfion — Malice in luw — Privilcricd commHincationa. — Privileged communications are divided into those which are privi- leged absolutely, as statements made by suitors, Avitnesses, advocates, or judges, in a court of justice, and those which are privileged only where the communication is made without actual malice, such as communications made in discharge of a moral or social duty, fair and true reports of judicial or legislative proceedings, or fair com- ment and criticism on the acts of public men, public performances, or published writings or works of art. Defamation — Malice in law — Pririlcf/e — Courts of jmticc. — An action for defamation will not lie for anything sworn or stated in the course of a judicial proceeding before a court of competent jurisdiction, such as defamatory proceedings filed in the courts, or affidavits containing false and scandalous assertions against others (r). Therefore, if a man goes before justices of tho peace and exhibits articles against the plaintiff containing divers false and scandalous charges concerning him, the plaintiff cannot have an action for a libel in respect of any matter contained in such articles ; for the party preferring them " has pursued the ordinary course of justice in such a case ; and, if actions should be permitted in such cases, those wlio have just cause for complaint would not dare to complain, for fear of infinite vexation" (.s). There is a large collection of cases where parties have from time to time attempted to get damages for slanderous and malicious charges contained in affidavits made in the course of a judicial proceeding ; {p) Haire v. Wihon, 9 B. & C. 645. Sanford v. licmictt, 24 N. Y. 20 ; Smart V. Jllaiichard, 42 N. Y. 137 ; Jloffan v. Hcndrij, 18 Md. 177; Com. v. Udell, 3 Pittsb. (Penn.) 4J9; Gc.rr v. Sclden, 4 N. Y. 91. Actual ill-will ueed not bo shown : Com. v. SncUbig, \') Pick. (Mass.) 337. In some of the States, tlio defen- dant may rebut the inference by proving that, from facts and circumstances, he believed the charge to be true {King v. Hoot, 4 Wend. (N. Y.) 113); and the fact that rumours of the mutter ■wore cuiTcnt may be shown in investlgatioii : Skinner v. Foiiirs, 1 Wend. (N. Y.) 451. il) Cratt'ford v. Middleton, 1 Lev. 82. (;•) Itam v. Lnmlcg, Hutt. 113. Wes- ton v. Dobniet, Cro. Jac. 432. Astley v. Younge, 2 Burr. 809. («) Cutter V. Dixon, 4 Co. 14 b. SKCT. ■•] DEFAMATION OF CHAKACTER. 185 f but in no one instance has the action been hold to be maintain- able (f). Tlio libeller, however, may bo pimished, and the abuse repressed, by a prosecution for perjury (ii). Where the cause of action against a defendant was, that ho falsely and maliciously, and without any reasonable or probable cause, went before a Commissioner for taking oaths in the Court of Chancery, and swore an affidavit stating of the plaintiff, in liis character of an auctioneer, that he conducted his business fraudu- lently and improperly, and that he was not, in the deponent's opinion, a fit and proper person to bo intnistcd with the sale of certain property then the subject of a suit in the Court of Chancery, and the court, upon the evidence before it, decided that the plaintiff was not a fit and proper person to conduct the sale, it was held that the affidavit, being made in the course of a judicial proceeding, could form no ground of action (.r). But, if the court 182 has no jurisdiction in the matter, and no right to entertain the proceeding, and tlie charge is recklessly and maliciously made, it will not be regarded as a privileged communication (//) . The privilege of a witness in a court of justice, for words spoken with reference to the inquiry on which ho is called as a witness, is absolute and unqualified ; and a statem.ent as to another matter, made to justify the witness in consequence of a question going to his credit, has reference to tlie inquiry within the above rule (z). But what a witness says before he enters or after he has left the witness-box, is not privileged (a) ; nor, it would seem, what he may say in the witness-box maliciously for his own purposes, and without reference to the cause or matter of inquiry {b). Defamation — Malice in law — Courts of Justice — Advocates. — The freedom of speech at the bar is the privilege of the client vested in the counsel who represents him. It would be impossible properly to conduct a cause in court, unless considerable latitude were allowed to the advocate ; and, if any evil follows therefrom, it must be endured for the sake of the greater good which attends it. '* A counsellor, therefore, hath a privilege to enforce anything which is informed unto him for his client and to give it in evidence, it being pertinent to the matter in question, and not to examine whether it f : > (l) Hendcrsuii v. Broomhead, 4 II. & N. 67'J ; 2S L. J., Ex. 360. («) As to a certificate from a military officer that liis inferior ottieer left liis quarters without permission, see Kc'ighbj V. Bell, 4 F. & F. 763. (x) Bevia v. fimith, 18 C. B. 126 ; 25 L. J., 0. P. 195. 0/) Buckley v. Wood, 4 Co. 14 b. Lewis V. Lcoy, El. Bl. & El. 554; 27 L. J., Q. B. 282. (-) Seaman v. Xethcrdlft, 1 C. P. D. 640 ; 2 C. P. D. 53 ; 46 L. J., C. P. 128. («) Truimnii v. Diiiiii, 4 Camp. 211. (b) Cockburn, C. J., Seaman v. Nethcr- eli/e, 2 C. P. D. 53, 66 ; 46 L. J., C. P. 128. ii IHG INJUllIES TO REl'UTATfON. [CIIAI'. VII. be true or false " (c) . ** It would be impossible," observes Abbott, J., " tliat justice could be well administered, if counsel were to be ques- tioned for the too great strength of their expressions ; but they ought not to avail themselves of thou* situation maliciously to utter words wlioUy unjustifiable." Where, therefore, an attorney was mixed up in the concoction of a pretended cause of action, and in suing for a sum of money, when he knew that there was no legal claim and that the action must fail, and the counsel for the defen- dant said that the action was founded on the knavery of tho attorney, that it was one of the most profligate things over done by a professional man, and that the attorney was a fraudulent and wicked attorney, it was held that these observations and expressions of opinion were privileged. "Perhaps," observes Lord Ellen- borough, " the words were too strong, and, in the exercise of a candour fit to be adopted, might have been spared. But still a counsel might, honafulc, think tho expressions justifiable under the circumstances" {(I). An action will not lie against an advocate for defamatory words although they were uttered maliciously, and not 183 with tho object of supporting tho client's case, and are utterly irrelevant and without justification or excuse, and arise from previous personal ill will and anger towards the person defamed {e). [c) lifooh V. Montague, Cro. Jnc. 90. Gan- V. ,Schlni, -1 N. Y. 81 ; llvmtr v. EiiijUh(u\U, 117 Muss. 539; lihiq v. Whnkr, 7 Cow. (N. Y.) 725 ; Staiih;/ v. WM), 4 Siiiulf. (N. Y.) 21 ; Brmutt v. irHliaiiino)!, 4 Id. CO ; Jlualinqs v. Liisk, 22 Wend. (N. Y.) 410. Statements mnde by counsel, material to the cause, and waiTanted by tho facts and circum- stances, are privilcgal [Hoar v. Wood, 4 Met. (Mass.) 193 ; Didaiay v. Foudl, 4 Kj'. 77 ; BiiJgchij V. Jlcdycs, 1 N. J. L. 169) ; but ho must not abuse tho privi- lege : Jeiiiiiiigs v. I'liiiie, 4 Wis. 358 ; MeMiUan v. liuirh, 1 Binn. (renn.) 178. (rf) Hodgson v. Scarlett, 1 13. & Aid. 241. {f) Minister \. Lamb, 11 Q. B. D. 588 ; 62 L. J., Q. B. 720. lirigya v. Bi/iid, 12 Ind. (N. C.) 377 ; Hoar v. IVood, 3 Met. (Mass.) 193 ; llitt v. Miles, 9 N. H. ; Biirluigamc v. IliirUngamc, 8 Cow. (N. Y.) 141 ; Gossliii V. Cannon, 1 Harr. (Del.) 3; Gilbert v. Teople, 1 Den. (N. Y.) 41 ; Thorn V. Jllinie/iard, 5 John. (N.Y.) 525. But in order to render this privileg'o ab- solute, the proceedings must be had before a court of competent jurisdiction, and the matter complained of must be ger- mane thereto. Thus, an affidavit made to secure the arrest of a person for ii crime, is not libellous, although insuf- ficient to eecure a warrant {llartsock v. Jteddink; ante; Sanderson v. RoUinson, 2 Strob. (S. C.) 447 ; Bailey v. Bean, 5 Barb. (N. Y.) 597) ; and the same i.s true of libellous matter in a bill in chancery {Torrey \. Field, ante; Forbes \. Jnhii son, 11 B. Mon. (Ky.) 48), in a complaint to a grand jury {Judder v. rarkhiirst, 3 Allen (Mass.), 373 ; Sandsx. liobinsnn. 12 S. & M. (Miss.) 704; Vander:() N. Y. 309. In nomo of the States tliu privileg'c is only held to apply when the answer is responsive and per- tinent. That the answer should be re- sponsive is admitted, Imt the iri/iif.ss ought tiot to bi' riqiiircd at his pvril to know whether it is pertinent. Seo J'erkin.t v. Milehel/, 31 Barb. (N. Y.) 401 ; Jtiirnes v. Crate, 32 Me. 412 ; Xelson v. Jiahl, C IJlackf. (Ind.) 204; Lea v. If'hite, 4 Snecd (Teun.) Ill ; Warner v. I'aine, 2 Sandf. (N. Y.) 195 ; J'aa.we v. Lee, 2 Hill (S. C.) 197 ; O'osslin v. Cannon, 1 HaiT. (Del.) 3 ; A/len v. Crofoot, 2 Wend. (N. Y.) 515 ; Jtadtjeley v. JLedges, 2 N. J. L. 1G9. Judicial proceedings nro not confined to actions in a court of law, but include all proceedings before a judge or judicial body in due course of law: I'erkins v. Miteheli, 31 IJarb. (N. Y.) 471 ; MeMi/lan v. Jlireh, 1 Biun. (Penn.) 176. The parties to a cause are privileged in reference to statements made by them in their justification and defence in a legal way, and if they con- duct their own cause, as they maj' do as a matter of right in Kome States, and by- leave of court in other.'', they are en- titled to the same privilege as an attor- ney : Jiing V. Jl'heeler, 7 Cow. (N. Y.) 725 ; Jfastinys v. Lash; 22 Wend. (N. Y.) 410 ; liadgclei/ v. IMges, 2 N. J. L. 233 ; IShelfer v. Gooding, 2 Jones (N. C.) 175.; Juan V. MeLanghlin, 2 S. & R. (I'cnn.) 470 ; IHdenay v. Poteell, 4 Bush (Ky.) 77 ; J)unn\. Winters, 'lYlv.m\)\n.. (Tcnn.) 512. Even counsel in a cause may abuse his privilege, and if ho departs from the questions at issue, and designedly and maliciously villifies a party or a witness, he may be held amenable therefor : McMillan v. Bireh, 1 Biun. (Puin.) 180 ; York V. Pease, 2 Gray (Mass.) 282. Words spoken by a judge, or written by him in the course of a judicial proceed- ing before him are privileged, and the same rule applies to all official duties : SoHlh V. Maryland, 18 IIow. (U. S.) 403; iloodcnow V. Tappau, 1 Ohio, GO ; Itcetor V. Smith, 11 Iowa, 302; J)unhani v. J'ourrs, 42 Vt. 1 ; Jlrown v. Smith, 21 Barb. 419; Sands v. Itobinson, 12 S. \- M. (ili.ss.) 704. Thus, a petit jury [linn- hain v. rou») ; the object being, in the one case, to secure the free and fearless discharge of high public duty in the administration of justice, and, in tlio other, the maintenance of military discipline on which the welfare and safety of the state depend (ii). The same immunity has also been held to extend to witnesses giving evidence before a select committee of the House of Commons (o) . 184 Defamntion — Mulicc in fair — CoiiiiiiKiiicrifiniis priri/i'f/rd tchcn not malicioKfi. — When a communication is fairly made by one person to another in the discharge of some public or private duty, whether legal, moral, or social, or in the conduct of his own affairs in matters where his interest is concerned, " the occasion," observes Parke, B., *' prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence, depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within an} narrow limits " {p). "A communication," says Lord Campbell, " made hona fide upon any subject-matter in which the party communicating has an interest, or in reference (TtMor V. Smith, 11 Iowa, 302). or by a party in piijicrs connected witli the case jrermnne thereto {Wiiatt v. liueU, 47 ChI. 621 ; Itmhs v. lu'rher, 6 Ileisk. (Tonn.) 39o ; Lathrnp v. Hyde, 2o Wend. (N. Y.) 448). or in pleadings in the case (JliU v. MUn, 9 N. H. 9), are privi- leged. (/i) Reg. V. Skinner, Lofft. 55. Mun- s/er V. Lnmb, 11 Q. B. D. 588 ; 52 L. J., Q. B. 726. (•) Thomas v. Churtmi, 2 B. & S. 475 ; 31 L. J., Q. B. 139. {k) Mtinster v. Lamb, mpra. \t) Dawkins v. Lord Rokebij, L. B., 7 H. L. 744 ; 45 L. J., Q. B. 8. {ill) DatckiiiH V. Lwd PiiiiM, L. R., 5 Q. B. 94 ; 39 L. J., Q. B. 53. (>() l[((rt V. UuiiipKch, L. R., 4 P. C. 439 : 42 L. J., P. C. 25. («) (iojUii V. BonmUy, 6 Q. B. D. 307 ; 50 L. J., Q. B. 303. (p) Toogood V. Spijring, 1 C. M. & R. 193. SomervU/e v. Jfairkiiis, 10 C. B. 583; 20 L. J., C. P. 131. Crofl v. Stevens, 7 H. & N. 570; 31 L. J., Ex. 143. Whiteleii v. Adams, 15 C. B., N. S. 392; 33 L. J., C. P. 94. Wright v. Woodgate, 2 C. M. & R. 677. Cowlca v. Potts, 34 L. J., Q. B. 247, I SECT. I.] DEFAMATION OF CHAUACTEK. ISO ' ' to wliicli ho has a duty, is privileged, if niado to a person having a corresponding interest or duty, nlthougli it contain criminating matter which without this privik'go would bo slanderous and nctionablo ; " an!•<-; light in the interests of society that ho should tell to a third persoa certain facts; then, if ho bond Jide and without malico does toll, it is a privileged communication." "A communication of this sort," observes Alderson, B., "is not strictly what is called a privileged communication, but is rather a commimication privileged by tlio occasion ; and, if it was made bond fide, the particular expressions ought not to bo too strictly scrutinized, provided the intention of tho defendant was good"(0. 186 Whether the circumstances under which a communication was made constitute it a privileged conmiunication or not is a question which the court has assumed tho jurisdiction of determining (»). But, if there is any dispute about those circumstances, the question must bo submitted to a jury. It is essential to tho existence of the privilege and protection that the communication, under what- ever cu'cumstances made, should be believed to be true by the party making it; for a person cannot shelter himself under the privilege, if he believes the charge imputed untrue, unless he at the same time declares his belief of its untruth. If a man knowingly makes a false charge, there is at once actual malice, and the privilege is blown to the winds («). Where the auditors of a public company, employed in accord- ance with the provisions of the articles of association, made a report reflecting upon the conduct of the company's manager, and •I in 8 I r > {q) Uarthon v. Bush, 5 El. & Bl. 344 ; [t) Woodward v. Lander, 6 C. & P. 25 L. J., Q. B. 25. 550. (r) 15 C. B., N. S. 392 ; 33 L. J., (m) Stace v. Griffith, L. R., 2 P. C. C. P. 89. (») L. R., 5 Q. B. 608, 611. 420. I!)0 INJIIKIRS TO IIKJ'UTATION. [ciIAP. VII. Il fiil %' tho directors had tlio report printed and circulated among tlio BharolioMcrs, and it was usod at an adjourned mooting, it was held that, tho directors liaving done nothing contrary to tho usual practice, the communication was jtrivilcged, and tliat, in tho absence of express malice, no action lay against tho directors for Huch puhlicat ion (.'•). "Independently of any authority," says Mellor, J., "I am quite prepared to hold that a comi)any having a great number of shareholders all interested in knowing how their officers conduct themselves, are justified in making a com- nmnication in a printed report relating to tho conduct of their officers to all Bharcholders, whether present or absent, if tho com- munication is raado without malice and huiid fide." ** I think," further observes Uannen, J., "that tho failure of tho directors to report to tho shareholders a statement made by tho auditors upon their own responsibility of what they found to be the state of tho accounts, might have led the directors into a position of great difficulty." So, where tho plaintiff proved that ho had been in tho servico of tho defendant, and had been dismissed on a charge of theft, and that ho afterwards came to tho defendant's house and had somo communication with the defendant's servants, when the defendant said to them, " I have dismissed that man for robbing me ; do not speak to him any more in public or in private, or I shall think you as bad as him," it was held that tho statement, being honestly made by a master as a warning to his servants, was a privileged communication, and that it was incumbent on the plaintiff to 186 give some evidence of malice in order to raise a question for tho jury (y). So, where a vestry meeting was held for the purpose of nominating and electing constables, and hearing and dBciding upon any objections that might be brought forward against any of tho candidates for the office, and the defendant, a ratepayer, made a statement imputing perjury to the plaintiif, who was one of the candidates, and said that he was a person not to be believed on his oath, it v/as held that the statement was p^i^'ileged and pro- tected if it was bona fide and honestly made in full belief of its truth, and that it was incumbent on the plaintiff to bring forward evidence of his general character for truthfulness, in order to raise the question as to v/hether the defendant in making the state- ment had been actuated by any malicious motive (s). But, although a man who makes a charge against another may be [x) Lawless v. AnglO'Egyptian Cotton Co., L. R., 4 Q. B. 262 ; 38 L. J., Q. B. 129. (y1 Somervilli v. Hawkins, 10 C. B. 590.' (z) Kershaw v. Bailey, I Exoh. 743. ^^ 8RCT. I.] DEFAMATION OF CHAUACTER. 1!)I justified by tho occiislon in malving it, yot ho may mako tlio charge in sucli a way, accompanied by piioli oxprossioiis, and under such circumstances, an to furnish proof that it was mado maliciously (/i). Thus tlio transmission unnecossarily by a post- offlco tologram of libellous matter, wliich would have been pri- vileged if sent in a scaled letter, avoids tho privilege (/v). AVhen once a confidential relation is established between two persons with regard to an inquiry of a private nature in which they are mutually interested, whatever takes place between theui relative to the same subject at subsequent interviews, moy bo as much privileged as what passed at tho original interview (r). Dcfamnfion — Malice in /dir—Kr/cnf of f/ie privikgv. — Tho privi- lege must be exercised within tho limits which tho interest or duty indicates ; and in many of tho instances of privilege to which atton- ti(m will be drawn, a public statement to an individual not having any interest in the matter might be held libellous. The statement must bo such as tho occasion warrants, and made to a person inte- rested in receiving it. The mere fact, however, of th« presence of a person uninterested has been held to be insufficient to take away the privilege (f/). "Where the managing director of a brewery company wrote a defamatory statement about the secretary of the company to the chairman under circumstances which made the communication privileged, and rebutted tho legal implication of malico, but negli- gently put tho statement in an envelope addressed to another person who received and read it, it was held that in the absence of 187 malice the publication to the other person, though negligent, was privileged {e). Defamation — Malice in law — Pricilcgcd charges of felony made bonil fide, with reasonable groinuh for suspicion. — For the sake of public justice, charges and communications Avhich Avould otherwise be slanderous are protected if made bond Jide in the prosecution of an inquiry into a suspected crime. " It is argued," observes Coleridge, J., " that the charge ought to be true, or ought to be mado only before an officer of justice. But the exigencies of (a) Seniof v. Mcdland, 4 Jur., N. S. 1039. (ft) Willimhacn v. Freer, L. R., 9 C. P. 393; 43 L. J., C. P. 161. {c) BentKon v. Skene, 5 H. & N. 838, 855; 29 L. J., Ex. 430. Wallace v. Carroll, 11 Ir. C. L. R. 486. (rf) Ilcnwnod v. Harriton, L. R., 7 0. P. 606, 623 ; 41 L. J., C. P. 206. {e) TaiitpsoHY. Bailnvood, 11 Q. B. D. 43 ; 52 L. J., Q. B. 425. See j»o»<, p. 197. Words spoken in good faith, from a sense of duty, public or private, and only to those who have iiu interest in the subject-matter, are privilefjed : Ihad' lei/v. Heath, 12 Pick. (Mass.) 163; Smith V. iTiggiiis, 16 Gray (Mass.) 252 ; Lewis V. Chapman, 16 N. Y. 3G9 ; Ormslij v. Douglass, 37 N. Y. 477 ; Mliuk v. Colly, 46N. Y. 427; Howard v. Thompson, 21 Wend. (N. Y.) 317; Fowler v. Jhwen, 30 N. Y. 20 ; Moore v. Utitler, 48 N. H. 171; Braenv.Hathawat/, 13 Allen (Mass.), 237. "•I 195 ii INJURIES TO KKriJTATION. [CIIAP. VII. P3!i »l society could never permit Biich a restriction. If I stop a party suspected, must I not say why I do so ? The presence of other parties v/oull not do away with the privilege.'' It is for the jury to say whether the circumstances warranted the charge made by the defendaii-t, whether it was made bona fide, or before more persons than was necessary, or in language stronger than the occa- sion justified (./'). Thus, information that a robbery has taken ^)!ace, naming the suspected tliief, is a privileged communi- cation {(j) ; and po is a hand-bill, offering a reward for the recovery of bills of excliange, stating that they wero suspected of being embezzled by tlie plaintiff, such hand-bill being published for the protection of the person on the bills, or to secure the conviction o? the offender (//). Dcfnination — Jlaiice in hue — Di'famntovi; petitions to the Qtiecii, to Parliament, cr fj mini'sters or officers of state respecting the conduct of niagist rates' and officers. — As all persons have an in- terest in the pure administration of ^lublic justice, and as it is the duty of all persons who witness r>aisconduct on the part of magistrates to try by all means in their power to biing such misconduct to the notice of those whose duty it is to inquire into and punish it, it has been held that petitions and memorials prepared bond fide, and forwarded to the proper authorities, complaining of the conduc* of magistrates, and containing statements and allegations honestly believed to be true, are privileged cor^.munications ; but, if they aro made on frivolous grounds, or with knowledge of their being untrue, or without Lnowledge of their truth or falsehood, and without inquiry, when inquiry would have made tht truth apparent, and would have shown the allegation of misconduct false, the calumniator will be deemed to have acted from malicious motives, and his statements will not be privileged (/) . Petitions to the Crown upon matters 188 respecting which it cannot directly interfere, and petitions to Parliament, althougli the petitioners, besides presenting them to the House, print them and distribute them amongst the members, fall within the same rule. All these are protected, thot men may not be prevented by the dread of a prosecution or t tion from making communications which may be beneficial to the public {k). An action of libel may, however, be maintained for statements in (/) Tadmore v. Lawreiit-e, 11 Ad. & E. 382. Amann v. Bamm, 8 C. B., N. S. 697; 20 L. J., C. P. 313. Hooper v. TmseoH, 2 Bing. N. C. 4.57. {g) Kine v. Sewell, 3 M. & W. 297. (h) Tindal, C. J., Fviden v. Westlake, 8 M, & "W. 46i. (i) Jhtrruon v. Bush, 5 El. & Bl. 354 ; 25 L. J., Q. B. 25. Start v. Blagg, 10 Q. B. 906. [k) Lake v. King, 1 Saund. 132. Blake V. I'll fold, 1 M. & Rob. 198. Woodward V. Lauder, C C. & P. 548. SECT. I.] DEFAMATION OF CHARACTER. 193 a letter addressed to the Privy Council injurious to the character of the plaintiff, a public ofRcer removable by the Privy Council, upon proof of express malioo (/). Defamatory statements respecting the conduct of public officers, contained in an application for the redress of a grievance, or to expose some public abuse, and made homifide to one of the king's ministers who is supposed to have authority to afford redress, do not render the person making the application liable to an action. Thus, where the creditor of an officer in the army sent a petition to the secretary-at-war, inclosing bills of exchange accepted by the officer, and containing statements derogatory to the character of the officer as a man of honour, and concluded with a prayer that the officer might be ordered to discharge the debts due on the bills, it was held that, although neither the secretary-at-Avar nor the king had power to order the money to be paid, yet that, if the jury thought that the petition contained only an lionest statement of facts, according to the understanding of the person who sent it, and that it was addressed to the secretary-at-war hondjide for the purpose of obtaining redress, and not for the purpose of slandering the plaintiff, they ought to find a verdict for the defendant (/«). " Inasmuch as the defendant," observes Maule, J., " might, reasonably enough, conceive that the public officer to whom he addressed himself had power to assist him in obtaining payment oE a just debt, the occasion justified the communication, however mistokcn the defendant might be as to the extent of the juris- diction oi the person to whom he was addressing himself "(«). But, if the statements contained in the application are wholly or partly false, that nu y be sufficient to renew the presumption of malice, which ^j/v'/Ha facie the nature of the communication would rebut (o). Defamation — Malice in law — Privileye — Criminatory communi- cations by 2)nblic officers acting in discharge of a public duty. — A criminatory communication made by a clerk of the peace to the 189 justices at quarter sessions is privileged, provided it is confined to a statement of facts pertinent tc a matter which it is his duty to investigate, and contains nothing but what the clerk of the peace believes to be true ; but, if he imputes improper motives to others, and accuses them of attemi)ts to extoit money by misrepresen- tation, if irrelevant calumny is introduced into it, or if it contains str ctures upon the motives and conduct of others which the facts (/) Proclo'- V. Webster, 16 Q. B. D. 112; 65 L. J., Q. B. 150. (w) Fairman v. Ives, 6 B. & Aid. 644. A. («) iniiman v. Ash, 13 C. B. 845 , 22 L. J., c. r. 190. (o) Blaffff V. yitirt, 10 Q B. 905. O I -^ ' Jip^«#»!»«w'3i*'nnw^(^i»'i.>u,! ir»rr^-' 194 INJURIES TO REPUTATION. [cHAP. VII stated do not warrant, he will exceed his privilege, and subject himself to an action for damages (p). Defamation — Malice in law — Privileye — Criminatory pastoral letters and printed communications from clergymen to their parish- ioners. — There is nothing in the position of a rector of a parish, or a vicar, curate, or ar^y other minister of religion, which entities him to publish or circulate defamatory letters in his parish ; and such letters, though written and published under the gravest sense of duty, or the sincerest desire to improve the morals of the community, are actionable, if they cast serious imputations on the character or conduct of private persons. Where the schoolmaster of a national school, established in a parish of which the defendant was rector, had been dismissed by the trustees of the school from his situation, and had then obtained poseesjiou of a dissenting chapel, and opened a school there, it was held that the rector had no right to circulate letters in the parish, injuriously reflecting upon the conduct of the schoolmaster and the tendency of his teaching, under the pretext that he was watching over the souls of his parishioners, and exerting himself for their spiritual welfare. The parson in this case had, in a pastoral letter to divers parishioners, stigmatized the schoolmaster as not being a rightly- disposed Christian, and as being imbued with a spirit of opposition to authority and the commands of Scripture, and designated his school as a schismatic school, upon which God's blessing could not rest ; and he warned the rich against supporting it with subscriptions of money, and the poor against sending their children to it to be educated ; and it was held that the libel was not privileged, and that there was evidence of malice for a jury. " What was there," observes Moule, J., "in the position of the defendant, as rector of the parish, which entitled him to circulate a defamatory letter, not only in his own, but in the adjoining parish, and so endeavour to prevent persons from subscribing and sending their children to the plaintiff's school ? It is difficult to understand how the slightest right to do so can be suggested. As rector he might, no doubt, visit and remonstrate with any of his flock ; but, when a merito- 190 rious individual is about to set up a school, of which he dis- approves, because he thinks it may rival the school in which he takes an interes^^, that he should on that account cast serious imputations on that individual, and still be considered as having published a privileged communication, certainly seems a strange and inconvenient doctrine. We think that there was sufficient {p) Cooke V. Wildes, 5 El. & Bl. 340 ; 24 L. J., Q. li. 367. Popham v. Pickburn, 7 H. & N. 891 ; 31 L. J., Ex. 133. kS* •'*''" SECT. I.] DEFAMATION OF CHARACTER. 195 evidence for the jury to infer malice, and that, in determining the question of malice, the particular nature of the libel itself cannot be excluded from the consideration of the jury. ... In this case the terms of the letter itself are not without the character of malice. The endeavour to make the plaintiff's conduct a matter of spiritual delinquency, — to represent it as something not only opposed to some worldly rule, but unchristian-like, and contrary to what would be done by a person who had faith in, and a willing- ness to obey, scriptural precepts, — are matters on the face of the libel which make it proper that the jury, looking at the libel itself, should soy whether or not there was actual malice " (q). Defamation — Malice in law — Privilege — Defamatory letters re- specting clergymen, addressed to the bishop of the diocese, will be privileged, if there was fair and reasonable cause for a resort to the bishop, but not if they were written on light and frivolous grounds. Where a parishioner wrote a letter to the bishop of the diocese, informing him of reports current in the parish derogatory to the character of the clergyman and throwing scandal upon the Church, and praying that an inquiry might be instituted, it was left to the jury to deteiinine whether the letter was written with the malicious intention of slandering the plaintiff to the bishop, and giving currency to idle rumours, or with the honest intention of obtaining an inquiry (r). If the writer of the letter has means at hand for ascertaining whether the rumours are true or false, and neglects to avail himself of them, and chooses to remain in ignorance when he might have obtained full information, there will be no pretence for any claim of privilege. Defamation — Malice in law — Privileged confidential communica- tions between relations respecting the character of a person projwsing marriage. — Where the defendant, being the son-in-law of a widow lady to whom the plaintiff was paying his addresses, wrote a letter to the lady charging the plaintiff with various acts of gross mis- conduct, and warned her against listening to his addresses, it was held that the communication was privileged. *' If no explanation," observes Alderson, B., " had been given of the circumstances under which the letter was written, the law would, from the contents, 191 infer it to have been published with a malicious motive against the plaintiff. But, when it is shown that the parties were standing I I (g) Gilpin J. J., Ex. V. Folder, 9 Exch. 627 ; 23 L. J., Ex. 162. In Joannes v. Bennett (5 Allen (Mass.), 269), a letter from a former pastor to a woman to whom the plaintiff was paying his addresses, writ- ten at the request of her parents, was held not to be privileged. Said Bige- low, J. , " He stood in no such relation towards the parties as conferred on him a right, or imposed on him a duiy, to write a letter, containing calumnious statements concerning the plaintiff's character." (»•) James v. Boston, 2 C. & K. 8. o2 'f I iSi?»FTF«w»SIi^;r- '■I 196 INJURIES TO REPUTATION. [CHAP. VII. in circumstances of confidence and near relationship towards eacli other, I think the defendant's conduct justifiable, if he really believed in the truth of the statements which he made, though such statements were, in fact, erroneous ; for it is for the common good of all that communications between parties situated as these were should be free and unrestrained. The whole question is, whether this is a bona fide letter " (s). Defamation — Malice in late — Privileged confidential cotnmnnica- tions between friends to j^revent an injury. — If a confidential com- munication is honestly made between friends, purely to prevent an injury, and not for the purpose of slandering, the occasion justifies the act, and the communication is privileged {t). But no moral duty will justify the repetition and communication in writing of all the idle gossip a man hears to the prejudice of his neighbour. If a person is, under certain circumstances, under the pressure of a moral obligation to disclose the truth, he is, under all circum- stances, under the pressure of a moral obligation to abstain from circulating and propagating falsehoods. No person, therefore, ought to hazard statements or assertions in writing injurious to the character of another, until he has by inquiry, where the means of inquiry exist, satisfied himself that they are founded in truth. The benefit to one man by the disclosure of the information, supposing it to be true, is counterbalanced by the injury done to another if it should turn out to be false. Where the defendant had received a letter from his friend, the mate of a ship, containing a long narrative of dangers which the mate had incurred from the drunkenness of the captain, and asking for the defendant's advice, and the defendant, honestly believing in the truth of his friend's statement, handed the letter to the shipowner, who dismissed the captain, and the latter sued the defendant for damages, the court were equally divided in opinion as to whether the comnunication was privileged or not ; Tindal, C. J., and Erie, J,, being of opinion that the occasion and cir- cumstances under whicl'. the communication took place, and the purity of motive of the defendant in making it, rendered it a privileged and protected communication ; while Cresswell, J., and Coltman, J., were of a contrary opinion. " It was not con- tended," observes Cresswell, J., "that any legal duty bound the defendant to communicate to the shipowner the contents of the letter he had received ; nor was the communication made in the 192 conduct of his own affairs ; nor was his interest concerned. (») Todd V. Hawkins, 2 M. & Rob. 21 ; 8 0. & P. 88 ; Joannes v. Bennett, 5 Allen (Mass.), 269. {I) Holroyd, J., Fairman v. Ives, 5 B. & Aid. 645. ^,H.'*")'<,W".'-l-i'^ SECT. I.] DEFAMATION OF CHARACTER. 197 The authority for the publication, if any, must therefore be derived from some moral duty, public or private, which it was incimibent upon him to discharge. I think it impossible to say that the de- fendant was called upon by any public duty to make the comma- nication j neither his own situation, nor that of any of the parties concerned, nor the interests at stake, were such as affect the public woal. Was there any private duty ? There was no rela- tion of principal and agent between the shipowner and the defen- dant ; nor was any trust or confidence reposed by the former in the latter ; there was no relationship or intimacy between them ; no inquiries had been made ; they were, until the time in ques- tion, strangers; and the duty, if it existed at all, as between them, must, therefore, have arisen from the mere circumstance of their being fellow- subjects of the realm. But the same relation existed between the plaintiff and the defendant. If the property of the shipowner on tJie one hand was at stake, the character of the captain was at stake on the other ; and I cannot but think that the moral duty, not to publish defamatory matter which he did not know to be true, was quite as strong as the duty to commu- nicate to the shipowner that which he believed to be true" («). Here, however, the defendant had no means of ascertaining the truth or falsehood of the information ; and the responsibility of acting upon it, without due inquiry, ought to rest with the ship- owner. If the defendant had been possessed of any personal interest in the subject-matter to which the letter related : if he had been a part-owner of the ship, or an underwriter on the ship, or had any property on board, the communication of the letter to the shipowner would have fallen clearly within the rule relating to excusable publications ; and so, if the danger disclosed by the letter, either to the ship, or the cargo, or the ship's company, had been so immediate as that the disclosure to the shipowner was necessary to avert such danger, then, upon the ground of social duty, by which every man is bound to his neighbour, the defen- dant would have been not only justified in making, but would have been boimd to make, the disclosure (x). Defamation — Malice in law — Privileged comnmnications by pemons having a liccuniary interest invoked in the matter of the communica- tion. — A commimication made by a person immediately interested in the subject-matter to which it relates for the purpose of protecting his own interest, in the full belief that the communi- Ut) Cresswell, J., Coxhead v. Richards, 2 C. B. 605. Bennett v. Beacon, ib. 633. Bell V. Farke, 10 Ir. C. L. R. 284. {x) Tindal, C. J., Coxhead v. Richards, 2 C. B. 696. Wilson v. Robinson, 7 Q. B. 68. Willes, J., Amann v. Lamm, 8 C. B., N. S. 602; 29 L. J., C. P. 313. i^:>j II i*''^W"'M^j,|"ff.P-'*'fV.V'l'*^-t.^V^ 111 ill S'l'lilll III! ^■m ill 198 INJURIES TO REPUTATION. [CHAP. VII. 193 cation is true, and without any malicious motive, is a privileged communication, and protected from liability in an action for libel. Where a letter was written confidentially to certain bankers, con- veying charges injurious to the professional character of a solicitor in the management of certain concerns which they had entrusted to him, and it appeared that the writer of the letter was himself interested in the affairs which he supposed to be mismanaged, and wrote the letter bond fide under the impression that liis statements were well founded, it was held that the communication was privileged. " If a communication of this sort," observes Lord Ellenborough, " wl^ph was not meant to go beyond those imme- diately interested in it, were the subject of an action for damages, it would be impossible for the affairs of mankind to be con- ducted" (y). Among the various communications which have been hold to be protected, in consideration of the private interest of the person making them, may be enumerated notices of the commission of an act of bankruptcy by the plaintiff, given by a creditor whose pecuniary interests required the information to be given (s), and communications respecting the character of servants {a). Dcfatnation — Malice in law — Privilege — Disclosures made bona fide in the course of an investigation set on foot by the plaintiff' himself are also privileged and protected. If, therefore, the plaintiff, or another person at the plaintiff's request, Avrites to the defendant asking for information on some point affecting the plaintiff's character, and the defendant merely relates bona fide what he has heard, the communication is privileged (i). Where the defendant having given notice of dismissal to his footman and cook, they separately went to him and asked his reason for discharging them, when he told each, in the absence of the other, that (he or she) was discharged because both had been robbing him, whereupon each brought an action for the words so spoken to the other, it was held that the statement was privileged {e). Answers to inquiries, therefore, made by persons interested in making the inquiry are privileged, if they are given bond fide in the discharge of any legal, moral, or social duty, as where the writer is, by his situation, bound to protect the interests of the inquirer, and they are believed to be true by the parties who give them. Thus, the answer to an inquiry addressed by a landlord to his tenant, respecting the character of a person proposing to bo (y) M'Dottgall v. Claridge, 1 Campb. 2C6. (i) Blackham v. Pvgh, 2 C. B. 611. (o) Infra, p. 194. (b) Hopwood V. Thorn, 8 C. B. 316. Warr v. Jolly, 6 C. & P. 497. (c) Manbij V. Witt, 18 C. B. 644 ; 25 L. J., 0. P. 294. Bavies v. Snead, L. R., 6 Q. B. 608. \ \\ ■:^tiiJ^lii'i:'A cttufcd to t ho person complniiiing of it "(A). Tho l)rivil»'g(( is not ronllnnd to tho publication of tho proccHtdings of t\w BUpcrior (.'omts. Tho dignity of th(! court cannot ho rogartlcd ; and "no distinction can bo nmdo for this purpose between a court oi /tie jiniidir and the Ifouso of Tjords." A mngistrate, upon any preliminary inquiry respecting an indictable offence, may, if ho thinks fit, carry on tho inquiry in private ; and tho publication of any hiw\i proceedings before him would undoubtedly bo unlawful, ]Jut, whilo ho continues to sit JbribiiH (ij)ertis, a(hnitting into tho room where ho sits as many of tho public as ciin bo conveniently accommodated, and thinking that this course is best calculated for tho investigation of truth and tho satisfactory administration of justice (as in most cases it certaiu^y will be), tho court in which ho sits is to be considered a public court of justice, provided the magistrate has jurisdiction over the matters brought boforo him, and authority to inquire into them. But, "if magistrates publicly hear slanderous com- plaints respecting matters over which they liave no jurisdiction, a report of what passes before them is as little privileged as if they wore illiterato mechanics assembled in an alc-houso " (c). Dcfamution — Malice in law — Jfatfcm of public interest — 7*>'o- cceditKjn ill Pdrliduieiit. — Information printed merely for tho uso of members of Parliament and circulated amongst them is privi- leged ; but reports containing defamatory matter, though printed for tho use of members, could not at common law be lawfully- circulated amongst thoEo who were not members of Parlia- ment {(I) ; now, however, tho 3 & 4 Vict. c. 9, enacts that a defendant in any civil or criminal proceeding brought for the publication of any report, paper, vote, or proceeding published under the authority of either House of Parliament, may, on tho production of a certificate from tho speaker of either House, duly verified, stating that such report, paper, &c., was published by the authority of the House, apply to the court, or judge of the court, in which the proceedings are pending, and have them stayed. By the 2nd section it is provided, that any suit or criminal proceeding for the publication of a copy of such autho- rized report, paper, &c., may be stayed on the production of the original report, paper, &c., and of an affidavit verifying the correct- ness of the copy ; and by the 3rd section it is enacted that in any civil or criminal proceeding for the publication of any extract or abstract of such report, paper, &o,, the defendant may give evidence (It) Ld. Campbell, C. J., in Letvia v. Zevtf, El. Bl. & El. 657 ; 27 L. J., Q. B. 289. mm V. Hales, 3 0. P. D. 319 ; 47 L. J., C. P. 323. ((•) lewis V. Levi/, El. Bl. & El. 657 ; 27 L. J., Q. B. 288. M'Oregor v. Thwaites, 3 B. & C. 24. id) Stockdale v. Hansard, 9 Ad. & E. 1. } ^^rnww ' ' IW fl SECT. I.] DEFAMATION OF CHARA(;TER. 20.-) 200 under tho goiioral issuo, that tho extract or abstract was published hand Jitif and without malice, and, on tho jury being satisfied of tliat, shall bo entitled to a verdict. A member of rarliameut may 'uako what reflections ho pleases upon tho character of others from his place iix tho House of Commons; but, if ho prints and publishes his speeches (except, perhaps, bond Jhlv for the information of his constituents (c)), ho will bo responsible in damages it they are of a libellous character (/'). However, a faithful report by a public newspaper of an entire debate in either House of Parliament, containing matter disparaging to tho characiter of an individual as having been spoken in tlio course of the debate, is not actionable at tho suit of the party whose character is thus called in question ; but tho publication is privileged on tho same principle as an accurate report of proceedings in a oourt of justice is privileged, viz., that tho advantage of publicity to tho community at large outweighs any private injury resulting to tho individual from tho publica- tion { editor from legal animadversion; but, if it can be proved that the comment is malevolent, and exceeds the bounds of fair opinion, laen it is a libel and actionable "(r). The same rule applies to an article in a newspaper upon a debate in either House of Parliament upon a subject of public interest. It must be honest and fair, i.e., the writer must believe it to be true or just ; and it must be made with a reasonable degree of judgment and moderation, and be justified m {I) Davis 4' 'S""* v. Shepstone, 1 1 App. Gas. 187. (»») Carr v. Hood, oited in Tabart v. Tippey, 1 Gampb. 357. Fryer v. Kin- nersUii, 15 C. B., N. S. 422 ; 33 L. J., G. P. 96, M'Leod v. Wakleu, 3 C. & P. 311. («) Dibdin r. 3u>an, 1 Esp. 26. Ore- gorii V. Duke of Brunswick, 1 Car. & K. 24. __; SECT. I.] JJIlfJWPUHU*(Hiy.M«,il>iM. DEFAMATION OF CHARACTER. 207 202 by the circuiastances as disclosed in an accurate report of the debate (o). So, aisc, the conduct of persons at a public meeting held for the purpose of promoting the electiou of a candidate for a seat in Parliament, may be made the subject of fair and bond fide discussion in a public newspaper; and unfavourable comments made on such conduct in the course of the discussion are privileged {p). It is competent to one public writer to criticise another and ridicule his sentiments and opinions; but he in not justified in making calumnious remarks on the private character of the individual, or in imputing to him sordid and dishonest motives, or base and dishonourable conduct. In that respect, the editor of a newspaper enjoys a right of protection in common with every other subject {q). A paragraph ir one newspaper charging another with being a vulgar, ignorant, and scurrilous journal, is not actionable; but it is otherwise if it asserts that it is in low circulation, and calls the attention of advertisers to the fact, as the plain object of it is to damage the sale of the paper, and diminish the profits from advertising (/•), Works of art are as much the subjects of criticism as the writings of an author. "Any man has a right," observes Lord Tenterden, "to express his opinion of them; and, however mis- taken, in point of taste, that opinion may be, or however unfavour- able to the merits of the author or artist, the person entertaining it is not precluded by law from its fair, reasonable, and temperate expression, although through the medium of ridicule. If it is unfair and intemperate, and written for the purpose of injuring the artist in his profession, it is actionable" (s). Thus, it is not libellous fairly and honestly to criticise a painting publicly exhi- bited if). If a man circulates a printed hand-bill, or posts it up in a public thoroughfare, or advertises in the public papers, the hand-bil'. or the advertisement, is as much open to fair and candid comment and criticism as any published book or pam- phlet. But those who criticise it must not go out of their way to impute motives, and make reflections upon private character not fairly warranted by the terms and tendency of the writing or advertisement («). ' Defamation — Maliec in late — Matters of public interest — Criticisms (o) Waion V. Walter, L. R., 4 Q. B. 95 ; 38 L. J., Q. B. 34. {p) DavU v. Lunean, L. R., 9 C. F. 396; 43 L. J., C. P. 185. (q) Ld. Ellenborough, Stuart v. Zovell, 2 Stark. 97. Campbell v. Spottisteoode, 3 B. & 8. 769; 32 L. J., Q. B. 185. (>•) Heriot V. Stuart, 1 Esp. 436. (*) Soatie V. Knight, M. & M. 74. \t) Thompson v. Shackell, Moo. & Mai. 187. (m) Farts v. Levy, 9 C. B., N. 8. 342 ; 30 L. J., C. P. 11. 208 INJURIES TO REPUTATION. [chap. VII. 5S \' II I!* 203 tipon sermons and cknji/men. — The law permits comments to be made upon the sermons delivered by clergymen from their pulpits, provided the comments are fairly, justly, and truly made. A clergyman also may be fairly characterised as a remarkably bad preacher, or as a preacher of erroneous doctrines; and, if the parson sustains an injury from the criticism, it is an injury for which there is no redress at law by damages. But the preaching of a sermon in the ordinary mode of a clergyman's duty in the parish church does not make the sermon public property, so as to invite observation upon it, and authorize the same freedom of criticism and comment from the press in general as is extended to the publication of a literary work (x) ; and all reflections upon the private character or conduct of the clergyman, calculated to bring him into disrepute with his parishioners, are libellous and actionable. However, what he does in the vestry-room, or allows to be done in the church during Divine service, is a matter of public interest ; and therefore any comments upon it, unless stronger language is used than the occasion justi'^'^s (which is a question for the juij), are not actionable (i/). Defamation— Malice in law — Maffers of public interest — Comments iipon the public character of public men. — There is a wide difference between publications relating to public and private individuals. Every person has a right to comment upon those ".cts of public men which concern him as a subject of the realm, if he does not make his commentary a vehicle for malice and the indulgence of some private spite or pique. " You have a right to comment on the public acts of a minister, upon the public acts of a general, upon the public judgments of a judge, upon the public skill of an actor ; but you have no right to impute to them such conduct as disgraces and dishonours them in private life " (s). Defamation — Malice in law — Matters o/jjublic interest — Criticism on matters of jmblic and national importance. — Every man has a right to discuss freely, so long as he does it honestly and without malice, any subject in which the public are generally interested, and to state his own views and to advance those of others for the consideration of all or any of those who have a commoji interest (x) Galhercole v. Miall, 15 M. & W. 344. Uearne v. Stowell, 12 Ad. & E. 719. (y) Kelly v. TinUng, L. R., 1 Q. B. 699; 35 L. J., Q. B. 940. (z) Parmiter v. Coupland, 6 M. & W. 108. The right to canvass the acts of public officers is subject to the limita- tion that it must be exercised fairly in good faith, and without wantonness or a reckless disregard of private rights. If charges against them are made with- out probable cause and from irapropnr motives, or if they arc untrue, liability attaches to the party making them : Snyder v. Fulton, 34 Md. 128 ; Cramer v. Kiggs, 17 Wand. (N. Y.) 209 ; Powers v. Dubois, 17 ibid. 63; Usher v. Severance, 20 Me. 9 ; and the same rule prevails aa to candidates for office. Their charac- ters may bo canvassed but not calum- niated: Seeli/ V. Blair Wright (Ohio), 358 ; Wilson' y. Fitch, 41 Cal. 363. Pfjgv^'*ww"ff ^^JT" "■ .^T*'"",' 1 1?*^ SECT. I.] DEFAMATION OF CHARACTER. 209 in the subject ; and, wliilst he does so, he has a privilege attaching to such right of free discussion of the same character which has been held to attach in the instances given above, in which liberty of speech has been allowed upon grounds of public and social con- venience, where the speaker or writer and the person or persons 204 addressed have had a duty or interest in common, the existence of which is held to rebut the inference of malice (a). The principle on which these cases are founded is a universal one, that the public convenience is to be preferred to private interests, and that com- munications which the interests of society require to be unfettered may be made freely by persons acting honestly without actual malice, notwithstanding that they involve relevant comments con- demnatory of individuals. To justify the publication in a news- paper of defamatory matter, not being a report of what has passed in a com't of justice, it must be shown, either that the person of whom the defamatory matter was written was a person whose position and character were of general interest to the whole country, or that the subject-matter dealt with was one of general interest to the whole community. The administration of the poor laws, both by the government department and by the local authorities, including the conduct of the medical officers, is matter of public interest. But, although the subject-matter may be of general interest, there still remains the question whether the occasion on which the words were uttered was privileged ; and, although a fair report of proceedings in a coun of justice or of the pro- ceedings of parliament is privileged, yet the meetings of poor law guardians are not necessarily public ; and, consequently, the publi- cation of a report of proceedings at sucli a meeting, at which ex parte charges of misconduct against the medical officer of the union were made, was held not to be privileged by the occa- sion (u). Defamation — Malice in law — Matters of public interest — Dispa- racing criticisms by one tradesman upon the goods of a rical tradesman are not actionable, unless they are made falsely and without lawful occasion, and special damage results from them (c). But, where a gunsmith published an advertisement in a newspaper of his being the inventor of a short gun which shot as far as other longer guns, and another gunsmith inserted a counter advertisement cautioning persons against these gims, and stating that the inventor durst not engage with any artist in town, and had made no such experiment, &c., it was held that this was a libel ; for, though any one in the trade might contradict the fact asserted respecting the short gun. {a) Hcnwood v. Harrison, L. R., 7 C. P. 606; 41 L. J., C. P. 206. Dunn V. Anderson, .'! Jiing. 88; R. & M. 287. A. (A) rarcell v. Soicler, 2 C. P. D. 215 ; 46 L. J., C. P. 308. ((■) Ante, 1). 9. I H i r > I I' 210 INJURIES TO REPUTATION. [CHAP. VII. ■^1 no one had a right to inuulge in any general reflections upon the character of the inventor and his conduct of his business : that the advice to all persons to bo cautious was a reflection on the inventor's honesty, as leading people to suppose that he would 205 deceive them ; and the allegation that he would not engage with any other artist was setting him below the rest of his trade {d). Defamation — 3falicc in/act. — If the publication of defamatory matter is brought within the limits of privilege, the plaintiff, to sustain his action, must prove actual malice, or, as it is usuall}' expressed, malice in fact (e) ; and the evidence to prove express malice, though not such as necessaiily to lead to the conclusion that malice existed, or be inconsistent with the non-existence of malice, should yet raise a probability of malice, and be more consistent with its existence than with its non-jxistence (/). "The rule," observes Lord Campbell, " is that, if the occasion be such as repels the presumption of malice, the communication is privileged, and the plaintiff must then, if he can, give evidence of actual malice ; if he gives no such evidence, it is the office of the judge to say that there is no question for the jury, and to direct a non-suit or a verdict for the defendant ; otherwise there might be a question for the jury in every case where a master, however fairly, gives the character of a servant ; and, if they conceived that there was malice lurking in the mind of the master, they might give a ver- dict for the plaintiff, on the ground merely of the communication having taken place; and this would apply to all cases in which the occasion has been said to repel the presumption of malice" (g). If the defamatory words were used with a wrong motive, as from anger, or with a knowledge that they were untrue, or without caring whether they were true or false, there is proof of malice ; but, if the defendant made the statements believing them to be true, he will not necessarily lose the protection of privilege, although he had no reasonable grounds for his belief (//). The defendant's conduct in putting a justification on the record which he does not attempt to prove, and will not abandon, may be taken into consideration by a jury, as proving malice and aggravating the injury ; and every other part of the defendant's conduct down to the time of the trial may be considered by the jury ; for acts, although subsequent, may indicate the existence of motives at a former time («). (rf) If«rinan v. Bclaney, 1 Barnard. 289 ; 2 Str. 898. (c) Crcsswoll, J., Coj-hcad y. Biehanh, 2 C. B. 605. (/) Somen-ille v. Jlaukim, 10 C. B. 690; 20 L. J., C. P. 131. Laughlonx. Bishop o/Scdor and Man, L. R., 4 P. C. 495; 42 L. J., P. C. 11. {(j) Tai/Iorv. Jrawkiiis, ICQ. B. 321. -S>f7; V. Maiile, L. R., 4 Ex. 232; 38 L. J., Ex. 138. (/() C/a)/c V. Molyneux, 3 Q. B. D. 237; 47 L. J., Q. B. 230. (() Simpsony. Itobimon, 12 Q. B. 513 : -jg^Frr '^fr'r^^--'njVr':rr^fr'^-ryv^-^^-r-;:w'iWT'J-yi.V^*(^ SECT. I.] DEFAMATION OF CHARACTER. 211 Where the defendant sets up as a defence that the communi- cation was a privileged communication, but the judge holds that there are comments by the defendant in excess of the privilege, the judge is not thereby justified in telling the jury thri the 206 defendant, by exceeding his privilege, has been guilty of a libel • for whenever there is evidence of malice, either extrinsic or intrinsi.., ^.^ answer to the immunity claimed by reason of the occasion, a question arises which the jury, and the jurj* alone, ought to determine. Whenever there are expressions in a pub- lication which may reasonably be contended to prove malice, the plaintiff has a right to have the whole matter submitted to the jury, for them to say whether, in -writing and publishing it, the defen- dant was acting boudfide or maliciously (/.^). But, if words used in a privileged communication are capable of two interpretations, one compatible with, the other incompatible with, the absence of malice, the former interpretation, it seems, should be allowed to prevail (/). Defamation — Of the intei'prctaticn of the words tiscd. — "In former times," observes Pratt, C. J., " words were construed in mitiori seimi, to avoid vexatious actions, which were then very frequent ; but distill ffuiiida sunt tcinpora, and we ought to expound words according to their general signification to prevent scandals, which are at present too frequent" (««). "The rule," observos Lord Ellenborough, *' which at one time prevailed, that words are to be understood in mitiori sensii, has been long ago superi^oded; and words are now construed by courts as they always ought to have been, in the plain, popular sense in which the rest of the world naturally understand them"(«). The effect of the words used, and not the meaning of the party uttering them, is the test of their being actionable. " You must first ascertain the meaning of the words themselves, and then give them the effect any reasonable bystander would affix to them " (o). It must appear to the court that the words complained of are capable of conveying or bearing a defamatory meaning ( p) ; and, if so, it is for the jury to determine whether, in point of fact, they HarbhoH v. Shook; 41 111. 142; Ormiby V. Doiifflass, 37 N. Y. 477; Wilson v. Nations, 5 Yerg. (Teun.) 211 ; Gorman v. Sutton, 32 Ponn. St. 247 ; Updegoce v. Zim- viermann, 13 ibid. 619. But if the plea was filed iu good faith, and under an honest belief that it would be suatoincd, it does not, as a matter of course, ag- gravate the damage." ; but the plea, with all its attendant circumstances, is proper for the consideration of the jury and the question of malice and damages : Fne- man v. Linsley, 60 111. 497 ; Sloan v. Petrie, 1.5 111. 425. (a) Coohe V. Wildes, 6 El. & Bl. 342 ; 24 L. J., Q. B. 307. {I) Spill V. Miiulf, L. R., 4 Ex. 232; 38 L. J., Ex. 138. («i) Button V. Heyivard, 8 Mod. 24. (h) Roberts v. Camden, 9 East, 96. Woolnoth V. Meadows, 5 East, 408. (o) Hankinson v. Bilby, 16 M. & W. 442. ( p) Capital and Counties Bank v. Henti/, 7 App. Gas. 741 ; 52 L. J., Q. B. 232. Mulligan v. Cole, L. E., 10 Q. B. 549 ; 44 L. J., Q. B. 153. r2 y 11 if 3 ' 212 INJURIES TO REPUTATION. [CHAP. VII. do bear such a meaning (q). Wlien the words are susceptible of a harmless meaning, it is for the plaintiff to show that they were used in a libellous and not in a harmless sense ; and their true import and signification may bo established by evidence of the surrounding cirou: '3tances(r). 207 Where the words used have an equivocal meaning, but are well understood and known in a libellous sense, it is for a jury to say whether they were used in that sense or not («). " We ought to attribute," observes Coleridge, J., " to a jury an acquaintance with ordinary terms and allusions, whether historical, or figurative, or parabolical. If an expression, originally allegorical, has passed into such common use that it ceases to bo figurative, and has obtained a signification almost literal, we must understand it as it is used." The term " frozen snake " has an application very generally known, which is calculated to bring into contempt a person against whom it is directed. If, therefore, a publication imputes to a person that his friends, who have been assisting him, have realized in him the fable of the frozen snake, it is for a jury to say whether these words do not convey an imputation of ingratitude to friends and benefactors ; and, if they do, they are actionable {t). If the meaning is so obscure and doubtful as to render the document incomprehensible, it is not actionable, although the plaintiff's name may be mentioned therein in an impertinent manner, and the publication may have been evidently intended to vex and annoy him (h). In an action for words, some of which, if spoken and under- stood in their ordinary sense, would certainly be actionable, the jury may consider whether, taking the whole of the conversation together, the particular words are so qualified by the other parts of the conversation as to show that they w^re not intended to give the idea which their ordinary and primary meaning would give {x). Defamation — Interpretation of the words — Evidence of surround' ing circumstances. — The ordinary popular sense of the writing, language, or words, alleged to be libellous or defamatory, is to be taken to be the meaning of the printer, publisher, or speaker of them ; but a foundation may be laid for showing another and {g) Solomon v. Lawson, 8 Q. B. 823. Ilemmings v. Gasson, El. Bl. & El. 34C ; 27 L. J., Q. B. 253. Homer v. Taunton, 6 H. & N. 663; 29 L. J., Ex. 318. Harvey v. French, 1 Cr. & M. 11. Roberta V. Camden, 9 East, 92. Watkin v. Hall, L. R., 3 Q. B. 396 ; 37 L. J., Q. B. 126. (r) Griffith* v. Lewis, 8 Q. B. 851. Gallweii V. Marshall, 9 Exch. 294; 23 L. J., Ex. 78. («) Wakley v. Healey, 7 C. B. 605. Baboneau v. Farrell, 15 C. B. 360. Gre- ville V. Chapman, 5 Q. B. 745. (t) Hnare v. Silverlock, 12 Q. B. 624. («) Capel V. Jones, 4 C. B. 263. {x) Shipley V. Todhuntcr, 7 C. & P. 680. SECT. I.] DEFAMATION OF CHARACTER. 2Vi 23 different meaning. Something may have previously passed which gives a pecidiar character and meaning to some expression ; and some word, wliich ordinarily, or popularly, is used in one sense, may, from something that has gone before, have a meaning different from its usual one. When, therefore, it is wished to get rid of the ordinary meaning, the witness must be asked if there was anything to prevent those words from conveying the meaning they ordinarily would convey ; and, if evidence is gi^^n, 208 and a foundation laid for it, then the further question may bo put, *' "What did you imderstand by them ?" {//). It must first bo shown that the word is used in, and has acquired, a peculiar sense, and then a witness may bo asked whether he understood it in that sense. The phrase " lame duck " would bo actionable if applied to a person on the Stock Exchange, because there it has acquired a particular meaning which could be shown. So of the word " black-sheep," as applied to a solicitor ; or of the word " blackleg," if it can be shown that it has acquired a similar signification as applied to gamesters (z). The defendant has a right to have the whole of the publication read, in order that the meaning of particular passages may be illustrated and explained by tlie coutext of the whole writing («) ; and, in an action for oral slander, he is entitled to have the whole conversation of which tlio slanderous words formed part given in evidence, in order to explain the meaning of particular expres- sions, and to show that they did not convey the imputation sought to be fastened upon them. Drfamation — Interpretation of the uorda — Proof of Huhncqucnt Ul}ch may be given ; but, if the evidence is offered for the mere purpos of swelling the damages, it will be rejected. " The dis- tinction," observes Lord Ab'iger, "is, you may give evidence of subsequent words to explain the words in the declaration : but, when there is nothing equivocal in the words charged, you cannot give evidence of subsequent words of the same import, for which subsequent words another action may be brought and damages recovered ; inasmuch as the record in this action would be no bar [y) Dailies v. Harthy, 3 Exch. 205. If words have aoquired a local or pro- vincial incaiiins', such meaning may be shown, even though the effect is to render words, whose moaning is appa- rently innocent, slanderous or libellous. Thus, in Pike v. Van Wormcr (5 How. Pr. (N. Y.) 171), the dcfendu.it called the plaintilf a "bogus pcJlar," and it was held that, in order to render the words actionable, it must be shown that they had acquired a different meaning. See also Mills v. Van Born, 17 Ind. 245 ; Peterson v. Sentman, 37 Md. 140 ; Slieplci/ V. Snyder, 45 Ind. 541 ; Smith v. Giford, 33 Ala. 168 ; Edgerley v. Swain, 32 N. H. 478 ; Gosling y. Morgan, 32 Penn. St. 273 ; Jihss y. Foley, 2 Pick. (Mass.) 320. A person is responsible for the sense which the words used, reasonably inter- pretelt IN.IURIKS TO IIKPUTATION. [CIIAP. VII. m ji 11 1 if! S 1 i ['I. t a* > at. ''■ to a BubBequent action for the eamo words, though the ovidonco now offered would tend to aggravate tho damages in this" (/;•). Dpfawation — Interpntation of the icon/s — Province of the jury. — Tho .'{2 Geo. 3, c. GO, s. 1, enacts, that on trials for libel the jury may give a gcnorr.l verdict of gnilty or not guilty upon tho whole matter put in ipsuo, and shall not ho required or directed by the court or judge to find the dcfrndant guilty merely on proof of tho publication by the defendant of tho paper charged to bo a libel, and of tho sense ascribed to tho same ; and (sect. 2) that the judge shall, according to his discrefion, give his opinion and directions to tho jury on tho matter in issue (r), who may (sect. 3) find a special verdict. Tlie usual course in cases of libel since tho passing of this statute is, first, to give a legal definition of tho offence, and then to leave it to the jury to say whether the facts necessary to con- 209 stituto that offence are proved to their satisfaction, and that, whether tho libel is the subject of a criminal prosecution or a civil action. Tlio judge, as a matter of advice to them in deciding the question, may give his own opinion as to tho nature of tho publication, but is not bound to do so as a matter of law [d). It is tho duty of the judge to say whether a publication is capable of tho meaning ascribed to it ; but, when the judgo is satisfied of that, it must be left to tho jury to say whether tho publication has that meaning or not {e). If the publication is, on the face of it, libellous, and the jury, nevertheless, find their verdict for tho defendant, the verdict may bo set aside, and a new trial obtained (/). If the judge and jury think the publication libellous, still, if on the record it appears not to bo so, judgment must be arrested {(f). Defamation— Interpretation of the irords — Application of the libel to the plaintiff. — If the libellous words point to no person in particular, it becomes a question of evidence whether they do or do not apply to the plaintiff (//). If the name of the person libelled is left in blank, or is designated by asterisks, evidence may be given to show who was meant. " It is not necessary that all the world should understand the libel ; it is sufficient if those who know the plaintiff can make out that he is tho person meant " (/). Where a class is described, it may very well bo that the slander refers to a particular individual. That is a matter of which evidence is to be laid before a jury ; and the jurors are to determine whether, (A) Pearcc v. Ornsby, 1 M. & Rob. 456. (c) Baylis v. Lawrence, 11 Ad. & E. 924. (rf) ParmiterY. Coupland, 6 M. & W. 108. JJ. V. Watson, 2 T. R. 100. le) Slurt V. Blagg, 10 Q. B. 908. Capital and Counties Bank v. Ilenty, 7 App. Cas. 741 ; 62 L. J., Q. B. 232. (/) I'armiter v. Coupland, 6 M. & W. 105. (g) Heanw v. SloweU, 12 Ad. & E. 731. Goldstein v. Foss, 6 B. & C. 159. Solomon v. Lawsoii, 8 Q. B. 837. (A) Merywether v. Turner, 7 C. B. 25i ; 19 L. J., C. P. 10. («) Bourke v. Warren, 2 C. & P. 310. SECT. I.] DEFAMATION OF CHARACTER. 215 when a class is referred to, the slander was pointed at the plain- tiff (./). Where, however, it appears, from the matter complained of, that there was not any intention of lihelling any particular individual, but that the imputations intended to be conveyed were meant to be cast upon the public authorities, or some of several public fimctionaries, tlio plaintiff cannot recover (f:). Defamation — What in a piihlivatiou. — If a man writes a libel, and puts it into his desk, this is no publication of it; but, if a libellous paper or placard has been notoriously circulated or posted up in places of public resort, proof of a paper in the defendant's handwriting, corresponding with the libellous placard, will be prinul facie evidence against him of his being the author of the libel, 210 and render it necessary for him to explain the matter (/). A libellous paper in the handwriting of the defendant, found in the house of the editor of a newspaper, in which the libel complained of appeared, is admissible in evidence against the defendant, notwithstanding several parts of it liave been erased and are omitted in the newspaper, provided the passages erased do not qualify the libel {m). If the libel on which the action is founded contains any marked peculiarities in spelling, stylo, or composi- tion, letters of the defendant concerning the plaintiff containing similar peculiarities are admissible in evidence, to show that the defendant was the writer of the libel («). The 2 & 3 Vict, c, 12, s. 2, whicli is re-enacted by the 32 & 33 Vict. c. 21, requires every person who prints any paper or book intended to be published or dispersed, to print his name and place of abode or business upon the front of such paper, or upon the first and last leaves of every paper or book consisting of more than one leaf, on pain of forfeiting 5/. for each cDpy so printed. If in an action for slanderous words it is proved that some person took down the words, that will not prevent another witness from giving parol evidence of what the words were (o). If a party makes a memorandum of particular facts and circumstances at tho time tl y occur, and has n t the paper with him, he may neverthe- less give oral evidence of the facts independently of the writing i^p) ; but the non-production of the writing is, of course, matter for comment and observation. Where a defendant, who had a copy of a libellous caricature in his house, showed it to another on being requested so to do. Lord I (j) Le Faiiuv. Malcolmsoii, 1 H. L. C. 637. {k) Solomon v. Zawson, 8 Q. B. 823. (/) It. V. Jieare, 1 Ld. Raym. 417. LarnVs case, 9 Co. 59 b. M. v. Burdett, 3 B. & Aid. 717 ; 4 B. & Aid. 95. (hi) Tarplcy v. Blabcy, 2 Bing. N. C. 437. Ui) Brookes V. Titchborne,b Exch. 929. (o) Sherid 673. i'r/art's case, 31 How. St. Tr. {p) T/iistlcicood's case, 33 How. St. Tr. 758. 21() INJURIKS TO RKPUTATION. [cflAP. VII. m • -i I m III Ellonboroiigli niled that this was not sufficiont oviJonco of publica- tion to support an action {q). If libellous matter contained in a private letter is addressed to the plaintiff himself, and is only delivered into his own hands, there is not such a publication as will support an action (r). But, where it was jiroved that the defendant addressed a libellous letter to the plaintiff, knowing that the plaintiff's clerk, in the absence of the plaintiff, was in the habit of opening the plaintiff's letters, nnd the letter was, in point of fact, received and opened by the clerk before it reached tlie plaintiff's hands. Lord EUen- borougli held that there was sufHcient evidence for the jury to consider whether the defendant did not intend to put the clerk in 211 possession of tlio letter, and that, if ho did, there was a pub- lication of its libellous contents (s). The sending of a letter to a wife containing libellous charges against her husband in a sufficient publication of the libel; for, to injure a man's character with his wife, or to assail his honour by communications made to her, is to do him a grievous wrong (/). If a letter is sent by post, it is prim A facie evidence that the person to whom it was addressed received it i due course ((/). Defamation — Publication — In neicspajwrs. — Every sale of a newspaper to a person sent to purchase it is a fresh publication ; and, therefore, whore an action was brought in respect of a libel in a newspaper, published seventeen years before the action, and the Statute of Limitations was pleaded, it was held that the plea was negatived by proof that a copy of the paper had been purchased from the defendant by the plaintiff's servant, sent to obtain it, within the six years. Where the proof of publication relied on was the sale of a copy of a ncAvspaper to a messenger sent by the plaintiff to procure it, who, on receiving it, carried it to the plaintiff, it was held that this was a sufficient publication to sustain an action for damages ; for a defendant who, on the application of a stranger, delivers to him the writing which libels a third person, publishes the libellous matter to such stranger, though he may have been sent for the work by the plaintiff himself (a*). But, the vendor of a newspaper in the ordinary course of business is not liable if he can prove that he did not know that it contained a libel, and that his ignorance was due to no negligence on his part, and that he had no ground for supposing that the newspaper was likely to contain libellous matter; but it is doubtful whether or not he would be ((/) Smith V. jrood, 3 Campb. 323. (r) riiiUips V. Janseti, 1 Esp. C2o. Peacock V. Reynal, 2 Brownl. 151. {«) Delacroix v. T/ievenot, 2 Stark. 63. {t) Wenman v. Ash, 13 C. B. 842 ; 22 L. J., C. P. 190. (m) Warren v. Warren, 1 Cr. M. & R. 250. {x) Brunswick {Duke of) v. Harmer, 1 Q. B. 189. i.llt|;||i|WfWM!!ie V. Smith, 3 H. & N. 735 ; 28 L. J., Ex, 33. I ill Ml mHJWWIWU»1IB« ■gpvvav I '*r,'mi m. ]i m n w BECT. I,] DEFAMATION OK CIIAKAnTER. 2 HI of an apology is ploadod, tlio puWication of proviotiB UbolH on the plaintiff by tho dofondant is adniissiblo in ovidonoo, to show that tho dofondant wroto tlio libel in qupstion with actual njalic >. /', long praotico of libelling tho plaintiff may show in tho most salid* factory manner that th'' dofondant was actuated by malice in tho particular jiublioation, and that it did not take plaoo through oaro- lessni'ss or inaJvertonco ; and, tho more tho ovidonoo approaches to tho proof of a Hytitomatin practice, tho more; convincing it is. Tho circumstance) that tho other libels aro more or loss frequent, or more or loss remote from tho time of tho publication of tho libel in question, merely affects tho ■weight, not tho admissibility, of tho evidence (m). Where to an action for a libel in a newspaper tho dofondant pleaded the inHortion of an apology and payment of 40s. into court, and the jury found that tho apology was not sufficient, but 214 that tho money paid into court was suflieient to cover 'rn — Libel by the plaintiff on the defendant. — " If a man is in the habit of libelling others, he complains," observes Sir James Mansfield, " with a very bad grace of being libelled himself ; and, if two men are concerned in publishing monstrous libels against each other every day, thei'e can be no claim to damages on either side" {g). But the defen- dant cannot give in evidence, in mitigation of damages, other libels published by the plaintifi concerning him, unless the defen- X m < m {a) Warwick v. Fculkes, 12 M. & W. 608. (A) Underwood v. Parks, 2 Str. 1200. (t) Watson V. Christie, 2 B. & P. 224. \d) Scott V. Sampson, 8 Q. B. D. 491 ; 51 L. J., Q. B. 380. (c) Thompson y. Nye, 16 Q. B. 175; 20 L. J., Q. B. 85. (/) Bennett v. Bennett, 6 C. & P. 588. Q) Finnerty v. Tipper, 2 Campb. 72. 222 INJUBIES TO REPUTATION. [CHAP. VII. daut can show that the libels proceeding from the plaintiff were connected with the libels proceeding from the defendant ; for one libel cannot be set off against another, unless it can bo shown that they are connected together, and that the libel published by the plaintiff provoked the libel published by the defendant, and that the plaintiff is himself, to a certain extent, the cause of the injury for wliich he claims compensation in damages (//). When the object is to show that the defendant was provoked, by libels published against him by the jjlaintiff, to retaliate by publishing the libel of which the plaintiff complfvinSj is essential to prove that the plaintiff's libels came to the dcieu'i.uii s knoAvledge before he published his libel («). Defamation — Remedies — Damages — Mitigation — Offers of apologg. — ]3y the 6 & 7 Vict. c. 96, s. 1, it is enacted, that in any action 217 for defamation it shall be lawful for the defendant (after notice in writing of his intention, given to the plaintiff at the time of filing or delivering the plea in such action), to give in evidence, in miti- gation of damages, that he made or offered an apology to the plaintiff for such defamation before the commencement of the action, or as soon afterwards as he had an opportunity, in case the action was commenced before there was an opportunity of offering an apology (Z). Defamation — Remedies — Damages — Inadequaey - ' ''nnages. — A new trial may be granted for inadequacy of dnni ; . where the smallness of the amount shows that the jury have v: C c. com- promise, and, instead of deciding the issues submirceu () them, have agi-eed to find for the plaintiff for nominal damages only {I). Defamation — Remedies — Injunction. — It was formerly said that the court would not restrain the publication of a libel by injunc- tion (»«), even where It was injurious to property («), until the matter complained of had been found by verdict to be libellous (o). But in more recent cases the courts have granted an injunction to restrain libels (^;), or slanders {q), calculated to injure property or trade, at all events where the applicant satisfies thu court that the defamation is untrue, and where the statements are not privileged ; for if the statements are privileged the question of express malice (A) May v. Brown, 3 B. & C. 126. Tarphy v. Blabey, 2 Bing. N. C. 441. (i) Watts V. Fraser, 7 Ad. & E. 232. (A) Ante, pp. 212, et seq. {I) Falvei/\. Stanford, L. R., lOQ. B. 54 ; 44 L. J., Q. B. 7. (m) Mitlkcrn v. Ward, L. R., 13 Eq. 61'J; 41 L. J., Ch. 464. («) Prudential Assurance Co. v. Knott, L. R., 10 Ch. 142; 44 L. J., Ch. .500, over-ruling Dixon v. Molden, L. R., 7 Eq. 488, and Springhead Spinning Co. v. liilcy, L. R., Eq. 551 ; 37 L. J., Ch. 889. (o) Saxby v. Easterbrool; 3 C. P. D, 339. {p) Thomas v. Williams, 14 Ch. D. 864; 49 L. J., Ch. 605. Quartz Hill Co. V. Beall, infra. Hill v. Hart-Davies, 21 Ch. D. 798 ; 61 L. J., Ch. 845. {q) loog V. Bean, 20 Ch. D. 300. »!f!*»i)ys/^*i?ww»?wwwNf»!'''fli»»iw'Wi".»««y;?w* ' ifli vw»w'>»^; wi'^-w^wwifi SECT. I.] DEFAMATION OF CHARACTER. 223 arises, which cannot be conveniently tried on an interlocutory appli- cation (r). Defamation— The wrong-doer. — Every publisher and dissemi- nator of slander is liable to an action for damages, as well as the original inventor, author, or utterer, of the calumny. The person who repeats it may give greater weight to the scandal, and may be actuated by greater malice than the original utterer; and he cannot discharge himself from responsibility by giving up the name of the author or first utterer of the slander. The person slandered may, consequently, maintain an action for damages arising from th^ publication of written slander against the author and first publisher of the slander, as well as against any subsequent publisher or disseminator thereof, unless the publication can be justified or excused (s). Whenever loss of situation or employment, 218 or any other special damage, is the direct consequence of the utterance of oral slander, the utterer is responsible, whether he is himself the original author of the scandal, or merely repeats what he has heard some one else say {t). But, in the case of verbal slander, where the action is maintainable only in respect of some special damage that has accrued from the utieranre of the slander, the action must be brought pgaiast the person whose wrongful act is the direct and immediate cause of the special damage («). Defamation — The wrong-doer — Joint libellers. — Where the slandei- is made by two persons in a joint publication, they may both be made defendants in one and the same action {x) ; but, where the same slanderous words are spoken by two different persons, separate actions should be brought (y). Defamation — The wrong-doer — Agent. — Where the defendant's daughter had been employed by him to make out his bills and write letters for him on matters of business, and the daughter wrote and published a libel upon the plaintiff in her father's (the defendant's) name, it was held that this was not sufficient to fix him with the authorship of the libel ; for the principal is only responsible for the acts of his agent within the limits of the authority delegated to the agent ; and it does not follow, from a daughter being employed to make out bills and write letters for her father for the purpose of conducting his business, that she is authorized by him to write a libel ; and there ought to be some evidence to show that the libel was written either by the command, or with the knowledge, of the defendant (z). If a man makes a I (»•) Quartz Hill Mining Co. v. lieaU, 20 Ch. D. 501 ; 46 L. T. 746. («) M'Pherson v. Baniclls, 10 B. & C. 273. TidmaH v. Ainslie, 10 Exch. 63. JFatkin V. JIall, L. R., 3 Q. B. 396. (<) Lewis V. Jraller, 4 B. & Aid. 015. (m) Ante, p. 177. (x) Maitland v. Goldney, 2 East, 426. (y) Chamberlain v. Goodwin, Cro. Jac. 047. Swithin v. Vincent, 2 Wila. 227. (z) Harding v. Greening, 1 Moore, 470. %'fT 224 INJUKIES TO KEPUTATION. [CHAP. VII. request to another to publish defamatory matter, of which, for the purpose, he gives him a statement, whether in full or in outline, and the agent publishes that matter, adhering to the sense and substance of it, although the language is to some extent his own, the man making the request is liable to an action as the publisher (a). Dcfumation — The wrony-doer — Corporation. — A corporation aggregate may be made answerable for a libel published by their directions [b), although the body corporate had no ill-will to the plaintifF, and did not mean to injure him ; for great injustice would be suffered by individuals, if their remedy for wrongs authorized by corporations aggregate were to be confined to the agents employed by them. Therefore, where a railway company falsely published through their electric telegraph that a bank had 219 stopped payment, it was held that the company were respon- sible in damages for the false and slanderous intelligence (c). SECTION II. MALICIOUS PROSECUTION Malicious prosecution. — To put the criminal law in force mali- ciously, and without any reasonable or probable cause, is wrongful ; and, if thereby another is prejudiced in property or person, there is that conjunction of injury and loss which is the foundation of an action (r/). "Malice alone is not sufficient, because a person actuated by the plainest malice may nevertheless have a justifiable reason for the prosecution. On the other hand, the substantiating the accusation is not essential to exonerate the accuser from liability to an action ; for he may have good reason to make the charge and yet be compelled to abandon the prosecution by the death or absence of witnesses, or the difficulty of producing adequate legal proof. The law, therefore, only renders him responsible where malice is combined with want of probable cause" (e). But, though abandoning a prosecution is not of [a) Parkes v. Fnscott, L. R., 4 Ex. 169; 38 L. J., Ex. 105. (A) Alexander v. North Eastern Mail. Co., 6 B. & S. 240 ; 34 L. J., Q. B. 162. (c) Whitjield v. South Eastern Mail. Co., El. Bl. & El. 121 ; 27 L. J., Q. B. 229. (k) Churchill v. Sigyers, 3 El. & Bl. 937 ; 23 L. J., Q. B. 308. (e) Tiudal, C. J., Willam v. Taiihr, 6 Bing. 186 ; 3 M. & P. 350 ; 2 B. & Ad. 845. tS"!*' - W "W'l""'"'-''-'" 'i''W!'**TTTi' ■^ .■ T^irT.- -■^-.-T,'.:V;~ p?fl??r^; SECT, "•] MALICIOUS PROSECUTIOX. 22a itsolf proof of want of proliable cause, yet, wliore tlio prosecution is Iiersisted in and kept hanging over the head of tlio plaintiff for a long time, and is then dropped at the very hour of trial, there is strong ground for supposing that the proseoiitor had no justifiable reason for commencing it (/). The want of reasonable and pro- bable cause for a malicious prosecution, and the evidence of malice, depend so much upon the particular circumstances of the individual case as to render it impossible to lay down any general rule upon the subject ; but the facts ought to satisfy any reasonable mind that the accuser had no ground for the proceeding but his desire to injure the accused (ff). (/) Gaselec, J., Willans v. Tai/lor, 6 Bing. 190. {(/) Tindal, C. J., V'illam v. Taylor, 6 Bing. 180 ; 2 B. & Ad. 84 5. I'atmer v. i)(7r/i«(7, 4 Burr. 1972. Malice and want of probable cause aro csHoiitial to render a person liable for malicious prosecution, and must be proved by the plaintiff. Malice alone is not enough, for if there was probable cause, however malicious the prosecution may be, no legal injury has been done, and, consequently, no ground for an action exists. But malice may bo inferred from the acts of the defendant, as from his zeal in conducting or aiding tlie prosecution, or from the fact that there was no reasonable and probable cause for the prosecution (Shafer V. Louchs, .58 Barb. (N. Y.) 42G ; Stone v. Stevens, 12Conn.219; Masuri/v. Whipple, 8 R. I. 300 ; Beitz v. Langfeet, 03 Penn. St. 234 ; Ritehcij v. Davis, 11 Iowa, 124 ; JIaucr V. Clay, 8 Kan. 580 ; I'reston v. Cooper, 1 Dill. (U. S. C. C.) 589 ; Camp- bell V. Threkeld, 2 Dana. (Ky.) 425; Kitton V. lievins, Cooke (Tenn.) 90 ; Olm- stead V. J'artridi/e, 82 Mass. 38 ; Strauss V. Young, 30 Md. 240 ; Youno v. Gregorie, 3 Call. (Va.) 440; Boll \.' Shoneberg, 2 Dis. (Ohio) 54 ; Murray v. Lon{/, 1 Werd. (N. Y.) 140; Jluriiap v. Albert, Taney's Dec. (U. S.) 244 ; Turner v. Walker, 3 G. & J. (Md.) 377) ; but the want of probable cause cannot bo inferred from express malice : Wheeler v. Nesbit, 24 How. (U. S.) 644 ; Murray v. McLean, 10 N. J. L. 514 ; lilunt v. Little, 3 Mas. (U. S.) 102. The fact that the plaintiff was acquitted is primd facie, but not conclusive, evidence of malice or want of probable cause, for there may have been probable cause, when, in fact, no crime had been committed [Adams v. Lishen, 3 Blackf. (Ind.) 445 ; Jioss v. Tunis, 20111. 259), as the plaintiff may, by his own acts or folly, have put himself in a posi- tion where a reasonable suspicion of his guilt may be raised, and if this suspicion was general in the community, it may bo showntodisprovemalice: Stonev. Stevens, 12 Conn. 219; Cecil v. Clarke, 17 Md. 508 ; Burlingame v. Burlingame, 8 Cow. (N. Y.) 141. A. As to what is probable cause, it may be said to be such facts and circumstances as would excite belief in the mind of a reasonable person, that the person charged was guilty of the crime for whi(!h he wnsprosecutod(//«//.s v. Jtlizard, 30 Ind. 457 ; Wilouirth v. Mouutford, 4 Wash. (U. S.) 79 ; Wheeler v. Xesbit, 24 How. (U. S.) 544) ; and in all cases, although want of probable cause raises a presumption of malice, yet this presump- tion may bo rebutted by proof tend- ing to show that the defendant acted in good faith, and from honest motives [11 heeler v. Xesbit, ante; Jlrif,ham v. Aldrieh, 105 Mass. 212 ; Collins v. Iloyt, 50 111. 337 ; Jfairlei/ v. Butter, 54 Barb. (N. Y.) 493; Levi' v. Brennan, 39 Cal. 485), as that he, in good faith, acted under the advice of counsel after having fairly stated the case to him: Cole v. Curtis, 10 Minn. 182; Bavenport v. Lynch, Jones (N. C.) 545 ; Ames v. Rathburn, 55 Barb. (N. Y.) 194 ; Cooper V. Utterback, 37 Md. 282 ; Soppington v. Watson, 50 Md. 83. That there were reasonable grounds of suspicion against the plaintiff: Mc- Mahon v. Armstrong, 2 S. & P. (Ala.) 151; Wilmarth v.' Mouutford, i Wash. (U. S.) 79. That he was notoriously a bad cliaranter, and regarded as dis- honest, or that the grand jury found a bill against him : Gerrard v. Willis, 4 J. J. Mar. (Ky.)028; or that he was gene- rally suspected, of the crime : French v. ■ Smith, 4 Vt. 303; Cecil v. Clarke, 17Md. 508 ; and special acts of his similar to the one charged against him may be shown asaffordinga ground for suspicion:' Barron v. Mason, 31 Vt. 189 ; Sherwood V. Iteed, 35 Conn. 155. What facts and circumstances amount to probable cause is wholly a question for the court: Briggs v. Barton, 44 Vt. 124 ; Cloon v. Gerry, 13 Gray (Mass.) 201 ; Berson v. Southard, 10 N. Y. 230 ; but whether such facts exist as amount to probable cause is a question of fact for the jury, and so alsa is the question whether he acted maliciously : Jfye v. Otis, 8 Mass. 122 ; Closson v. Staples, 42 Vt. 209. In all cases the plaintiff must i H jii 22(5 INJURIES TO REPUTATION. [CIIAP. VII. Icpi'oscctifioii.—ThcTo can bo no malicious prosecution until the party cliarged is brought before a judicial officer. "The distinction between false imprisonment and malicious prosecution," 220 says Willes, J., *' is well illustrated by the case where, parties being before a magistrate, one makes a charge against another, whereupon the magistrate orders the person charged to be taken into custody and detained until the matter can be investigated, the party making the charge is not liable to an action for false imprisonment, because he does not sot a ministerial ofRcer in motion, but a judicial officer. The opinion and judgment of a judicial officer are interposed between the charge and the imprison- ment "(/<). T/ie 2^rosccu(ion--I ididincnf. — The fact of the defendant's name being on tho back of the bill of indictment does not prove that he was the prosecutor of the indictment ; for the name of any person who can give evidence respecting the subject-matter of the indictment may properly be put upon the back of the bill (i). The mere fact of a person having attended at the trial and given evidence as a witness, is no proof of his having instituted or instigated the prosecution (/.). The prosecution — Iiiformati""s he/ore magistrates, — The ordinary mode of commencing a prosoo Ion is to lay an infomiation before a magistrate. It has been held that, if a person goes and lays his complaint of the loss of his property before a magistrate, and tells him of its having been taken or appropriated by the plaintiff, the complaining party is not responsible for what the magistrate may think fit to do upon the strength of this information. If, there- fore, the magistrate, acting upon the statement or deposition bond fide given, treats the matter as a felony, and issues his warrant for the apprehension of the plaintiff on the charge of felony, and in so doing forms an erroneous judgment, and conceives that to be a felony which is not a felony, but only matter for a civil action, the complaining person, who has thus set the magistrate in motion and caused the warrant to be issued, is not responsible for the en'oneous Bhow that the prosecution is at an end (Stewart v. Thompson, 61 Penn. St. 158; Brotcn v. Randall, 36 Conn. 56 ; Pratt v. Page, 18 Wis. .337), and that he pre- vailed therein ; Murray v. Long, 1 Wend. (N. Y.) 140 ; Wiggin v. Coffin, 3 Story (U. S.) 1. The declaration or com- plaint must, by proper avennents, show that the prosecution is at an end, that the defendant acted maliciously and "without probable cause, and the da- mages resulting' to tho plainti£P ; as, un- less damages are alleg^ and proved, the action cannot be maintained. An allegation that he was put to trouble, labour and expense in preparing for or conducting the trial, or that he was im- prisoned, or sustained damages to his reputation by the scandal, is sufficient. A client who employs an attorney to collect a debt is renponsible for the act of such attorney in causing tlie arrest of the debtor to compel payment : Guillamme V. Rome, 94 N. Y. 268. (A) Austin V. Dowling, L. R., 5 C. P. 534; 39 L. J., C. P. 260. (») Girlingtott v. Pitjield, I Ventr. 47. {k) Eager v. Lyott, 5 C. & P. 6. imii^^ho"tii9mm»i " ^' uisvm.t'mviry.-v-'M. "fvft^wm SECT. II.] MALICIOUS PROSECUTION. 227 judgment of the mngistrato nnd the acts consequent thereupon (/). But, if there is no reasonable or probable cause for a charge of felony, and a charge of felony is made, the party preferring the charge will bo responsible for it, though he acted i nder the advice of the magistrate, and preferred the charge at his suggestion. It is not necessary, in order to maintain an action against a person for having made a false and. unfounded, charge of felony against another before a magistrate, to show that the charge was taken down in writing, and acted upon by the magistrate. But it is necessary that the jury should be satisfied that it was made to 221 the magistrate with a view of inducing him to entertain it us a charge of felony 'vt).. If it appears that the defendant laid his case before a magistrate, that the magistrate issued a summons, which was served on the plaintiff, requiring him to appear and. answer the complaint, and that the plaintiff chose to take no notice of the summons, whereupon the magistrate directed a warrant to issue, upon which the plaintiff was arrested, the defendant will not be responsible for the arrest, as it was caused by the plaintiff's own negligence and misconduct, rather than by the complaint made against him by the defendant («) . (() Lcighv. Webb, 3 Esp. 1G5. Wi/att V. White, 6 H. & N. 371 ; 29 L. J., Ex. 193. («i) Clarke v. rostun, C C. & T. 423. The 11 & 12 Vict. c. 42, s. 17, requires all nmjifistrutcs before whom any person shall appear, or bo brought, charged with any indictable offence, to take the state- nicut on oath or affirmation of 'hose wlio know the facts and circumsta),,cs of the case, and to put the same into wri;>ing, and cause them to be read over to, and signed by, the witnesses, before they commit the accused person for trial, or admit him to bail. Where the charge or complaint, or the examination, is by law required to be taken down in witiiig, it is alwy.y8 to be presumed that tiis was done, although the party was discharged on the ground that no case was made out against him. Unless, therefore, positive evidence is given that the examinations were not taken down, oral evidence can- not bo given of what took place before magistrates, I'lirsvim v. Jirowii, 3 C. & K. 29G ; for, where mutters are required by statute to be reduced into writing for the purpose of evidence, the writing is con- sidered to be the best evidence, and must be produced, imless it can bo shown to have been lost or destroyed. If it is proved that no depositions were taken, or that they were taken but not signed, then oral evidence of what took place before the magistrates is admissible, Jtanii V. Whecdon, 2 M. & Rob. 480. See R. V. Eeed, M. & M. 403. Oral evidence ia admissible to add to or ex- plain the examination of the defendant before a mngistrato, although it r 'as taken down in writing, Vfiiafra v. John- son, 1 M. & Rob. 31G; for "what a party says is evidence against himself, whether another person took it down or not," Alder.-on, B., JtobiiinoH v. Vaiit/h/oii, 8 C. & P. 255. In order, therefore, to prove the proceedings before magistrates, it is in general necessary to servo the magistrate's clerk with a siibparna duces tecum, if the procetJings are in his cus- tody ; but, if they hr,ve beeu returned to the clerk of the peace, or his dejjuty, or to the clerk of the arraigns, then the officer who has the custody of them is the proper person to bo simimoned to prodtice them. If the officer in whoso custody they ought to be, if they exist, has searched for them and cannot find them, secondary evidence may be given of their contents, Freeman v. Arkdl, 2 3. & C. 494 ; 3 D. & R. G71. The oath and handwriting of the defendant should be proved, and the issue of the warrant on the strength of the information. If the charge was dismissed and was not taken down in writing, or if it was of such a nature, or made under such cir- cumstances, that there was no obligation imposed by law upon the justices to take it down in writing, the nature of it may bo proved by any person who was pre- HOLit and heard the charge male, Ctarka V. I'oUan, 6 C. & P. 423. («) rhWips v. Naylor, 4 H. & N. 615 ; 28 L. J., Ex. 225. U2 T^jnip «wn%mmp' 'W««iJPWl»WWI»(ii m.f. « « 'IMiMK 228 INJURIES TO REPUTATION. [CIJAP. VII. I Malicioua pvoacrution — Rcasouahlv and pvohuhk cause. — In doter- mlning whether or not there is an absence of reasonable and probable cause, the judge has to ask himself, whether a reasonable man, in the position of the defendant, and having the knowledge which the defendant in fact had or could and ought to have had, would have Bui)posed at the time of the prosecution that the prisoner was guilty ? If this question is answered in the afRrraa- tivo there is no cause of action. If it is answered in the negative, there ihen arises another question, which is for the jury, viz., whether the defendant was actuated by some indirect motive, some motive other than an honest desire to bring the guilty to justice ? 222 If this question is answered in the afFirmati ve, the verdict should he for the plaintiff ; if otherwise, it should be for the defendant. The question of probable cause is a mixed proposition of law and fact. Whether the circumstances alleged to show it probable, or not probable, are true and existed, is a question of fact ; but whether, supposing them to bo true, they amount to probable cause, is a question of law for the decision of the judge (o). Tho rule is that, however complicated tho facts may be on which the question of reasonable and probable cause may depend, the judge must leave the facts to the jury, and on the facts found by them determine for himself whether there is reasonable or probable cause or not{p). "There have been some cases," observes Tindal, C. J., "which appear at first sight to have somewhat relaxed the application of the rule; but there has been no real departure from it. In some cases the reasonableness and proba- bility of the ground for the prosecution have depended, not merely upon the proof of certain facts, but upon the question whether other facts which furnished an answer to the prosecution were known to the defendant at the time it was instituted. In other cases the question has turned upon the inquiry, whether the facts stated to the defendant at the time, and which formed the ground of the prosecution, were believed by him or not. In other cases the inquiry has been whether, from the conduct of the defendant himself, the jury will infer that he was conscious he had no reasonable aud probable cause. But in these and many other cases which might be suggested, it is obvious that the knowledge, the belief, and the conduct, of the defendant, are so many additional facts for the consideration of the jury, so that, in effect, lothing is left L Ihe jury but the truth of the facts proved and the justice of the inference to be drawn from sucli facts, the (o) Johmtone v. Sutton, 1 T. B. 545. I'antm v. Williams, 2 Q. B. 193. James V. Phelps, 11 Ad. & E. 488. Clements v. Ohrhj, 2 C. & K. 689. JUtcMl v. Jen- kins, 5 B. & Ad. 694. Busst v. Gibbons, 30 L. J., Ex. 75. (p) Doitfflas V. Corbet I, 6 El. & Bl. 515. "I iy»iui»iw^!9sn[^pmif^iufwpw)i».*""ii-"*»»"^'*<»»w»w SECT. II.] MALICIOUS PKOSKCIJTION. 2l>!) judge dotorraining, as matter of law, according as the jury find the facts proved or not proved, and the inferences wiUTanted or not, whotlior there was reasonable and probable ground for the prose- cution, or the reverse" (y). In an action for malicious prosecution the burden of proof as to all the issues arising therein lies npon the plaintiff ; and although the plaintiff proves that ho was innocent of the charge laid against him, and although the judge, in order to enable him- self to determine the issue of reasonable and probable cause, leaves subsidiary questions of fact to the jury, novei-theloss the onus of 223 proving the existence of such facts as tend to establish the want of reasonable and probable cause on the part of the defendant,rests upon the plaintiff. The plaintiff, a surgeon, had attended one M for bodily injuries alleged to have been sustained in a collision upon the defendants' railway. J/ brought an action against the defendants, which was compromised by the payment of a large sum by the defendants for damages and costs. Subsequojitly the defendants, having received certain information, caused the state- ment of certain persons to be taken by a solicitor ; their statements tended to show that the injuries of which M complained were not caused at the collision, but were produced wilfully by the plaintiff, with the consent of M, for the purpose of defrauding the defen- dants. These statements were laid before counsel, Avho advised that there was good ground for prosecuting the plaintiff and M for conspiracy. The defendants accordingly prosecuted the plain- tiff, but he was acquitted. In an action for malicious prosecution, the judge directed the jury to find whether the defendants had taken reasonable care to inform themselves of the true state of the case, and whether they honestly believed the case which they laid before the magistrates ; the jury having answered these questions in the affirmative, the judge entered judgment for the defendants ; and it was held that the direc'.ion to the jury was correct, that upon the facts and the findings of the jury, the defendants had reasonable and probable cause for prosecuting the plaintiff, and that the judge had rightly entered the judgment for the defen- dants (/•). If the defendant did not believe in the truth of the charge preferred by him against the plaintiff, and in the plaintiff's guilt, there is a want of reasonable and probable cause («). In an action for a malicious prosecution of the plaintiff by the defendant {q) Faiilony. Williams, 2 Q. iJ. 194. Taylor v. Willans, 2 B. & Ad. 856. Jiroad V. Ham, 5 Bing. N. C. 722 ; 8 3c. 48. (r) Abrath v. North Eastern Bail. Co., 11 Q. B. D. 440; 02 L. J., Q. B. 620 ; 11 App. Ca8. 247. (s) Cohen v. Morgan, 6 D. & R. 8. Carratt v. Morky, 1 Q. B. 18, 230 INJUKIES TO KKPUTATION. [cilAr. VII. for obtiiiuing goods from tho defendant by false pretences, it appeared ilwit tho pliiiiitilF, wlio had been insolvent, went to tho shop of tho defendant in his absence, and obtained five shillings' worth roferH an indirtiiicrit, or sets the criminal law in motion, knowiuf^ at the limn lie docH ho that ho has no rcaHonable ground for it, that alone is evidence* of nuilice on his part, liy tlie term " malieo " is meant any imlirect wrong motive. "Any n)otlvo other than that of simply instituting a prosecution for the purpose of bringing a person to justice, is a nuilicious motive on the part of the person who acts under the inlluenco of it." If a case* is trumpecl ui» out of very weak ami ilimsy materials, *' for the purpose of frightening other peoi)le, and thereby deterring them from committing depre- dations " upon piivate projjcrty, tl* is no legitimate founda- 226 tion for a criminal prosocut vnd persons who put the criminal law in motion under such circumstances lay themselves open to a charge of being inlluenccd by malice (//). I'roof of the absence of belief in the truth of the charge by the person making it and putting the criminal law in motion, is almost always involved in the proof of malice. AVhere the plaintiff com- plained, of a prosecution for perjury, which the defendant had instituted, against him for the purpose, as the plaintiff alleged, of suppressing evidence, and it was proved that the defendant, on being told that there was not sufficient ground for the indictment, declared that It was no matter, and that it would tie up the mouth of the plaintiff in a proceeding in which ho would bo likely to give evidence against the defendant, it Avas held that the judge was right in asking the jury whether the prosecutor believed at the time he preferred the indictment that the defendant had really been guilty of perjury, and whether ho instituted the prosecution bond fide under such a belief or from an improper motive, and in telling them that, if the defendant had acted from an improper motive, they might infer malice (//). If a person has been assaulted and prefers an indictment, with a consciousness that, by his own misconduct, he provoked the assault and has no reasonable ground to complain of it, and the plaintiff is tried and acquitted, there is a total absence of reasonable and probable cause for it, and evi- dence from which malice may fairly be inferred (/). If the defendant appears to have put the criminal law in motion for the purpose of enforcing payment of a debt, or obtaining the restitu- tion of goods unlawfully detained, without having any reasonable ground for preferring a criminal charge, there is evidence of m (/) Busst V. Gibbons, 30 L. J., Ex. 76. {ci) Stevtm V. Midland Rait. Co., 10 Exch. 35C ; 23 L. J., Ex. 32«. [h) Jladdiick v. Heiilop, 12 Q. B. 267. Broad v. Uam, 6 Bing. N. C. 722 ; 8 Sc. ao. (i) Iliiiton V. Heather, 14 M. & W. 131. SECT. II.] MALICIOUS rUOSLCUTION. 2aa mnlioo, and of wnut of rcasonublo and probablo oaxiso for tlio prosecution (^•). S('!ii»dal()U8 clifirgoH ond accusal ions mado by tho defendant aguiiiHt lh(» jibiinlilF in connexion with tbo jjrosccution are evidence of malice. Whore llio defendant jiut an advortisonient in the newspapers of tho finding of llie indiclnieiit by the grand jury, the advertisement was hehl to be acbnissibh* in evidence to prove tho malice of tho defendant, altliough an information hud been granted for it as a libel; but tho jury were directed not to consider it in estimating the damages (/). Any statemouts or declarations made by tli(> defendant tending to show that ho was actuated by spite and il-will in instituting the prosecution are, of course, evidence 227 of malice {iii). " When a person says to the prosecutor of an indictment for perjury that there really is no case against tho man ho has indicted, and the prosecutor answers ' I indict him to stop his mouth,' there is roasonablo oviibnco from •which a jury may infer that tho prosecutor knows that tho man is not guilty, but only indicts him for tho purpose ho has mentioned" (ii). Tho fact that overseers of tho poor have taken out a summons before justices, and have caused a warrant of distrc^ss and ii, warrant of arrest to issue ogainst tho plaintiff for tho non-pay- ment of poor-rates, thoy knowing at tho timo that tho plaintiff was bankrupt and had obtained his protection, is no evidence of malice to support an action for a malicious prosecution against tho overseers (o). "A i)rosecution," observes Cockburn, C. J., "though in the outset not malicious, may nevertheless become malicious in any of the stages through which it has to pass, if tho prosecutor, having acquired positive knowledge of tho innocence of the accused, perseveres niah auiiiio in the prosecution, with the intention of procuring per nr/us a conviction" (p). In order to show bona Jides on tho part of the defendant, it is competent to him to prove any communication that may have been made to him prior to tho commission of tho grievance, to show the impression made on his mind, and the materials lie had before him for forming an opinion. If the plaintiff had previously been guilty of felony, and the defendant was present at the trial, or had seen a record of tho conviction, which induced him to act in the matter of the complaint, these facts are receivable as evidence of bona fides {q). (/•) Broohs V. Wtirnifk, 2 Stark. 303. M'Jhnald v. Jtooke, 2 Bing. N. C. 219. (/) Clambers v. I'obiinoti, 2 Str. C'Jl. . (m) Mic/icllv. U'Uliam.i, 11 M. & W. 217. (m) Maulo, J., during the argument in Ifeshp v. Chapman, 23 L. J., Q. B. 49. («) ritillipa V. Xaylor, 4 II. & N. 565 ; 27 L. J., Ex. 222. {p) Fitz John V. Mnckindci; 9 C. B., N. S. 505 ; 30 L. J., C. P. 204. (y) Thomaa v. ItuawH, Exch. 764. - '"^P^PWPPJ^W^WW'^^ 234 INJUKIES TO REPUTATION. [CHAP. VII. I' if lj Counsel's opinion is of no avail to a man wlio has instituted ar unfounded and malicious prosecution. "It would be a most pernicious practice," observes Ileath, J., " if we were to introduce the principle that a men, by obtaining the opinion of counsel, by applying to a weak man or an ignorant man, may shelter his malice in bringing an unfounded prosecution " (r). It is no answer to an action for a malicious prosecution to show that the defendant was bound over by recognizance to prosecute and give evidence, if it appears that the prosecution originated in malice, and that the recognizance was the result of prior malicious proceedings instigated by the defendant. In an action for a malicious prosecution it appeared that the defendant had sued 228 the plaintiff in the county court, who pleaded a set-ofF, and the defendant, in order to get rid of the set-off, forged a receii)t of the plaintiff for a sum of money, and swore before the county court judge that the handwriting to that receipt was the hand- writing of the plaintiff. The plaintiff denied it ; but the county court judge, believing the plaintiff to have been guilty of perjury, committed him for trial, and bound over the defendant to prosecute. Tlie defendant proceeded to the assizes, went before the grand jury and procured a bill of indictment to be found against the plaintiff, and stuck to the charge at the trial, and endeavoured to maintain it by perjured evidence; cut the plaintiff was acquitted. The plaintiff tlien brought an action against the defendant for a malicious prosecution, and, having satisfied a jury that the defendant preferred the charge with the knowledge of its falsehood, recovered 200/. ; and it was held that the action was maintainable, because the defendant persisted to the last in the false charge, having no reasonable or probable cause for the charge, but preferring it with knowledge of its falsehood, and endeavouring at the trial to maintain it with further and perjured evidence (s). " But for the order of the county court judge," said Willes, J., " the action would, beyond all doubt, have been maintainable. But that order ought not to aid the defendant ; first, because it was occasioned by his own contrivance and wrong; and, secondly, because, as a judicial act, it is void, having been obtained by fraud on the court" (0. Although the defendant was compelled to prosecute, there was no compulsion upon him to persist in a false charge, lie might have discharged his recognizances by appearing and telling the truth. "It is supposed," observed Lord Denman, "that a charge cannot be (r) Hewlett v. Cvuchley, 6 Taunt. 283. (») Fitz John V. Mac'kwder, 9 C. B., N. S. 605 ; 3Q L. J., 0. P. 267, («) Fitz John y. Macliinder, 29 L. J., C, P. 170. SECT. II.] MALICIOUS TKOSECUTION. 235 preferred before a grand jury maliciously, if the party be bound to prefer it, though the recognizance be obtained iu consequence of his malicious proceeding. I have not the smallest doubt that a recognizance so obtained does not justify a party, or prevent his subsequent conduct from being malicious." " If an unwilling party," said Littledale, J., " were bound over by recognizance to prosecute, the recognizance would furnish an answer for this reason only, that in such a case the plaintiff could not prove that the defendant was actuated by a malicious motive" («)• It is no answer to an action for a malicious prosecution to show that the indictment preferred against the plaintiff was not sus- tainable in point of law; "for a bad indictment serves all the 229 purposes of malice; by putting the party to expense and exposing him, but no purpose of justice, in bringing the party to punishment if he were guilty " {x). Termination of the prosecution. — To establish a cause of action for a malicious prosecution it must be shown that the prosecution has terminated ; otherwise the plaintiff might recover in the action, and yet be afterwards convicted on the original prosecution (//). It must also be shown that the proceedings terminated in favour of the plaintiff, if from their nature they are capable of such a termination ; and it is not sufficient to show that the plaintiff was convicted, and that there was by law no appeal against such con- viction (s). If an indictment preferred by the defendant contains several charges against the plaintiff, aiid he is convicted on some and acquitted on others, this does not prevent the plaintiff from maintaining an action for a malicious prosecution in respect of the charges of which he was acquitted («). The question whetner there was or was not probable cause for some parts of the charge will affect the amount of the damages recoverable, but not the plaintiff's right to a verdict {b). A conviction of the plaintiff by a magistrate, so long as it has not been reversed on appeal, affords a conclusive answer to the charge that the complaint or informa- tion which led to it was founded in malice, and was prefen-ed without reasonable or probable cause (c). i' ill) Dubois V. Keats, 11 Ad. & E. 332. (a) Wicks V. IhULam, 4 T. R. 248. Tippet V. Ueani, o B. & A. 034 ; 1 D. & R. 271. (y) Fisher v. Btistow, 1 Doug. 215. AriimkUx Tivffoiio, Yclv. 116. (z) Jltisi'bc V. MatlhcKs, L. R., 2 C. P. 684; 30 L. J., M. C. 93. («) liecd V. Taylor, 4 Taunt. 017. (V;) Ihlisser V. Toicne, 1 Q. B. 343. Ltlis V. Abrahams, 8 Q. B. 713. [e) Miliar v. Baddeley, 2 Cr. & M. 678. Tho 14 & 15 Vict. c. 99, enacts Is. 13), that in ordc to prove tho trial and acquittal of anj person charged with any indictable oft'once, it shall not be neocs-' sary to produce the (original) record of the trial and acquittal, or a copy thereof, but it shall be sufficient that it be cer- tified, or purport to be certified, under tho hand of tho clerk of the court, or other officer having the custody of the records of the court, where the acquittal took place, or by the deputy of such clerk or other officer, that the paper produced is a copjr of the record of the indictment, "^^ '"'p- 2.30 INJURIES TO REPUTATION. [CHAP. VII; 1? I'i: I :ii I If Maliri'otis pros^rcutlon — Remedies — Action for dnmagcH. — The mere fact of a criminal information being pending against tlie defendant on the prosecution of the plaintiff, for the same subject-matter, is no ground for staying the proceedings in the action ; but, if the plaintiff has resorted to his private remedy by way of action, the court will not in general allow him to proceed with the criminal information until the action has been discontinued (7). 230 Ma/icioiis proneciifioii — Damages. — In order to recover damages in an action for a malicious prosecution, the plaintiff must show that he has suffered either in person, reputation, or pocket. If, therefore, an indictment is prepared for a common assault, and is ignored by the grand jur}', and the party indicted brings his action for a malicious prosecution, he must give some proof of actual damage (e), and must show that he was forced to expend his money in necessary charges to acquit binisolf of the misdemeanour of which he was accused ; for, if if/iioramas is returned where the indictment neither contains matter of scandal nor cause for imprisonment or loss of life or limb, no action will lie ; but, if there is scandal, or loss of liberty, &c., an action will lie. " There are," observes Holt, C. J., " three sorts of damages resulting from a malicious and unfounded indictment, any of which would be sufficient to support an action : the damage to a man's fame, as if the matter whereof he is accused is scandalous : where a man is put in danger to lose his life, limb, or liberty : the damage to a man's property, as where he is forced to expend his money In necessary charges to acquit himself of the crime of which he is accused" (/). In an action for a malicious prosecution, where the jury gave the plaintiff 10,000/, damages, the court refused a new trial, say- ing they would not interpose on account of the largeness of the damages, unless they were so flagrantly excessive as to afford internal evidence of prejudice and partiality on the part of the jury; that is, iinless they were most outrageciislj'- disproportion- ate, either to the wrong received, or to the situation and circum- stances of either the plaintiff or the defendant (g). trial, and acquittal, omitting the formal f.Hrts thereof. Ilitnter v. French, Willca, 617. Caddy v. Barlow, 1 M. & Ry. 277. It has been declared by Willes, C. J., that "every prisoner, upon hi^ acquittal, has an undoubted right and title to a copy of the record of such acquittal, for any use he may think fit to make of it, and that, after a demand of it has been made, the proper officer may be punished for refusing to make it outi R. V. Brangan, 1 LeacI),. C. C. 27. And see the 46 Edw. 3, cited Taj'lor on Evidence, \ 1340, p. 1265, n. 4, 4th ed., and printed in the appen- dix to the 9th vol. of the Statutes at Larp^e, p. 45, 4to ed. (rf) Caddi/ V. liarhu; 1 M. & Ry. 278. E. V. Sparrow, 2 T. R. 198. (f) Freeman v. Arkell, 2 B. fr C. 494 ; 3 D . & R. 07 1 . Si/ne v. Moore, 5 Taunt. 191. (/) Savile v. Hobetts, 1 Ld. Raym. 378. Q) leith V. Pope, 2 W. Bl. 1326. r SECT. II.] MALICIOUS PROSECUTION. 237 Every expense that the plaintiff has necessarily incurred in order to defend himself from the false and malicious charge brought against him is recoverable as part of the damages (//). If two persons are indicted without reasonable and piobablo cause for a conspiracy, and one employs a solicitor to defend tliem, and pays him the costs of the defence, and both are acquitted, and an action is brought for a malicious prosecution, and a verdict is given for the plaintiff, he is entitled to recover the amount of tho solicitor's bill as part of the damages, unless each had a distinct uofence and the costs thereof Avere severable (i). Malicioufi prosecution — Mitigation of damages. — Where the plaintiff avers that up to the time of the prosecution he had borne a good character, and claims damages for injury to his character, it 231 may be shown on cross-examination of the plaintiff's witnesses, that he was at the time a man of notoriously bad character (/•) . But, where the plaintiff does not expressly claim damages in respect of injury to reputation, general evidence as to liis character is inadmissible (/). Malicious prosecution — The tort-fea•). If a solicitor ap- pears on behalf of a railway company to prosecute for an assault made upon one of the company's servants, and the prosecution falls, and an action for a malicious prosecution is subsequently brought, it will be assumed, until the contrary is shown, that the depositions of the witnesses were taken by or known to the solicitor, and therefore to the company, before the prosecution was undertaken ; and, there- fore, if the depositions disclose a reasonable and probable cause for the prosecution, the company will not be liable, the onus of proving that there was no reasonable or probable cause lying upon t'le plaintiff (s). Maliciously causing a search warrant to issue. — If a person, without reasonable and probable cause, and from malicious or corrupt motives, causes a search warrant to issue, he is liable to an action for damages at the suit of the narty who has been damnified by the execution of tho warrant ; but, if a person goes before a magistrate, and lays before him fair grounds of suspicion for tho magistrate to exercise his judgment upon, and the magistrate thinks fit, in the exercise of the functions of his office, to issue the warrant, the person so attending before the magistrate is not then responsible for the issue of the warrant, unless he has knowingly or recklessly, and without due inquiry, swora to what was false {t). If a defendant goes before a magistrate and states that he has just cause to suspect that the plaintiff has robbed him, {p) Westnn V. Beeman, supra. {q) Eager v. Di/ott, 6 C. & P. 4. (»■) Stevens v. Midland Rail. Co., 10 Exch. 352 ; 23 L. J., Ex. 328. See also per Lord Bramwell in Abrath v. N. E. Mail. Co., 11 App. Cas. 247. (*) Waller v. South Eastern Hail. Co., L. R., 5 C. P. 640 ; 39 L. J., C. P. 316. (t) Cooper y. Booth, 3 Esp. 144; cited 1 T. R. 535. PhiUips V. Nayhr, 4 H. & N. 605 ; 27 L. J., Ex. 222 ; 28 L. J., Ex. 225. Wijatt y. White, 5 H. & N. 371 ; 29 L. J., Ex. 193. Hope v. Evered, 17 Q. B. D. .''38. ■ ||"•^J^'JM»«i^^lH^|u™>»JJ^J>ll>«W'^^lf!!PI ! SECT. II.] MALICIOUS PROSECUTION. 230 and upon that representation a warrant is granted, it does not lie in his mouth to say that the ningistrato ought not to have granted the warrant (h). MuUciom exhibition of articles of the peace against another, sup- ported by a false oath of threats having been used, may be made the foundation of an action for damages, notwithstanding that the accused person has been required to find sureties, and been imprisoned for default; for the truth of tlie articles cannot be controvorifcd befoi'e the court, which has no discretion, and can pronounce no judgment on the truth of the facts, but is bound to act upon the statement sworn to before it. Where, therefore, the plaintiff's declaration of his cause of action set forth that the defendant falsely and maliciously, and without any reasonable or probable cause, made information on oath before a magistrate 233 that the plaintiff had used certain specified threatening lan- guage to him, whereby the defendant went in fear of bodily harm, and then caused the plaintiff to bo arrested and brought before justices of the poace, and required to find sureties, and to be imprisoned, it was held that the declaration disclosed a good cause of action, although it appeared that the proceeding terminated against the accused, it being founded upon a statement on oath, which the person charged was not at liberty to controvert {x). Malicious proceedings in bankniptci/. — An action will lie against persons who petition for an adjudication in bankruptcy, without reasonable or probable cause, and knowingly and wilfully, or recklessly, swear to depositions fn,lse in fact (i/). In order, however, to prove a want of reasonable or probable cause, the proceedings must be superseded or set aside before the commencement of the action ; for the very existence of a commission of bankruptcy has been held to be evidence of probable cause (s). The mere fact, however, of the proceedings having been superseded or set aside, does not of itself establish the fact of the want of probable cause for them ; and the plaintiff must give some prima facie evidence of want of probable cause, in order to put the defendant upon proof of the existence of probable cause (a). t (u) Elsee v. Smith, 1 D. & R. 105. \x) B. V. Boherty, 13 East, 171. Venafni v. Johnson, 10 Bing. 301 ; 3 M. & So. 847. Steward v. Gromctt, 7 C. B., N. S. 191 , 29 L. J., C. P. 170. But by tho Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), 8. 25, tho power of a court of summary juris- diction, upon complaint of any person, to adjudge a person to enter into a recognizance and find sureties to keep the peace or to be of good behaviour, is to be exercised by an order upon com- plaint; and the Summary Jurisdiction Acts are to apply ; and the complainant and defendant and witnesses may be called and examined and cross-examined ; and the complainant and defendant are to be subject to costs, as in the case of any other complaint. {//) FaHci/ V. Banks, 4 EI. & Bl. 499 ; 24 L. J., Q. B. 244. Brown v. Chap- man, 1 W. BI. 427. (z) Whitworth v. HaU, 2 B. & Ad. 698. Metropolitan Bank v. rooky, 10 App. Cas. 210. (n) Hay v. Weakley, 5 C. Cotton V. Jams, 1 B. & Ad. 134 P. .361. John- I 240 INJURIES TO UEI'UTATION'. [chap. VII. Maifin'oiin presdifdtion of a niinUiKj-up pctilioii. — An action for malicious prosecution will Ho against a person for falsely and maliciously, and Avitliout reasonable or probable cause, presenting a petition to winu up a trading company under tlio Companies Acts, IcSGvi and 180", even although no pecuniary loss or special damage to tlio company can bo proved, as the presentation of the petition is calculated to injure the credit of the company [b). 11 iii mi V. J'hmrsiiii, L. R., G Ex. 329 ; 40 L. J., Ex. 201. Qmrt: Jlifl Mining Co. V. T'l/rc, infra. {/>) (Jiinrtz l/i/l (I'dhl Miiiino Co. v, i:>/re, 11 Q. B. 1). (iU ; 52 L. J., Q. B. 488. II .i 24 1 234 CHAPTER VIII. INJURIES TO RIGHTS OF PROPERTY. SECTION I. i OF EIGHTS OF PKOPERTY GENERALLY. Kinds of rights of jn'ojwrti/. — Rights of property belong to the class of private rights. They are iu their nature capable of being transferred from one person to another, and possess a pecuniary value by reason of such capability. Of these rights some have a corporeal object, as in the instance of rights to land or chattels, which confer on their possessors the right to the use and enjoy- ment of the land or chattel to the exclusion of the world at large ; while others have no corporeal object, but consist in the right to do a class of acts to the exclusion of other persons, such as the right to carry travellers over r .erry, or to take tolls from persons frequenting a market, or to vend a patented article, or to multiply copies of a book. Each of these rights will hereafter be dealt with separately; but it will bo convenient here to consider certain modes of acquiring rights of property which are more or less common to all these ditt'erent rights, or at any rate to two great divisions of them, the right of property in immovables, and the right of property in movables. Transfer of rights of j)ropcrti/. — Rights of property may be transferred by the act of the parties, or by death, marriage, bank- ruptcy, or other legal process. It will be convenient here to con- sider transfer by marriage or bankruptcy. Transfer hi/ marriage — Immovables — Marriages before January 1st, 1883. — The husband of a woman, married before January 1st, 1883, and seised in fee of certain lands and tenements, gained a freehold interest therein in right of his wife ; and, if he is the actual occupier of them, he is, of course, entitled to sue for all damage done to his beneficial occupation and enjoyment of the property. If the wife, on her marriage, was possessed of chattels real, such as leasehold interests, estates by statute merchant, statute staple, &o., A. R rTf i^W "i"^.'!!?*. |IJi?i,i i.P! II iWPi.ii." »p?H"»f^PW'"i'i!H iii.-PKJPWKU 242 INJURIES TO RIGHTS OP PROPERTY. [ciIAP. VIII. m 235 tbo husLancl is entitled to thorn as a gift In law, and may, during the marriage, deal with them as the absolute owner of them ; but, if ho fails to make any transfer or disposition of them in his lifetime, and his wile survives him, she will then take them by Burvivorship. Tb j husband cannot devise them ; but he may transfer them by deed («). If the wifo's estates have, prior to tho marriage, been conveyed to tnxstees, tho husband will then have no legal interest in the property, ond no right to maintain an action for any damage that may be done to it. If the husband, having an interest in the wife's real estate, grants leases thereof during their joint lives, reserving rent to himself and making his wife no party to the lease, then, as the reversion is in the husband, he is the proper person to sue for damage done to his reversionary estate (i). If afe»ic sole had a right to have common for life, and she married, and the husband is hindered in his enjoyment of the right of common, he alone may have an action for damages {c). A woman married before January Ist, 1883, is, however, entitled to the absolute disposal and possession (as her separate property) of all real property " her title to which, whether vested or contingent, and whether in possession, reversion, or remainder, shall accrue " (d) after January 1 st, 1883. Tramfer hij marriage — Immovables — Marriages since January \st, 1883. — But since January Ist, 1883, every woman who marries is entitled to hold as her separate property all real and personal property which belongs to her at the time of her marriage, or which is acquired by or devolves upon her after marriage (r), and to dispose of it absolutely, either by will or otherwise, without the intervention of any trustee (/). The power to make settlements is, however, reserved {g). Transfer hy marriage — Movables — Marriages before January \st, 1883. — In the case of marriages before 1883, the marriage operates as an absolute gift in law to the h-sband of all the goods and chattels and personal property of the wife. The husband, there- fore, after the marriage, may demand possession of th« chattels of the wife in the hands of a stranger ; and, if the latter has no lien upon them or right to detain *hem, and refuses or neglects to give them up to the husband, the husband may maintain an action for the detention or conversion of ihem without joining the wife, as the tort is to the husband : but, if the action is brought for the conversion of deeds and securities relating to property and chosea (a) Bao. Abr., Babok and Feue, C. (J) Walli* v. Harrison, 6 M. & W. 142. (c) Baker v. , 2 Bulatr. 14. ((/) 46 & 46 Vict. 0. 75, s. 5. As to the meaning of the words "shall accrue," see Reid t. Beid, 31 Ch. D. 402; 65 L. J., Ch. 294. {e) 46 & 46 Vict. c. 75, s. 2. (/) Sect. 1, sub-sect. 1. Q) Sect. 19. imium.i^iup iLpiPiiwiijiiii. SECT. I.] RiailTS OF PROPERTY GENERALLY. 243 236 in action which would survive to the wife in case of the death of the husband, the wife would be properly joined with the husband for conformity (h). So absolute is the husband's right to all chattels and personal property which come to his wife's hands after marriage, and beforg 1883, that, if the wife bought wearing apparel out of money settled to her separate use, and received by her from her trustees, such wearing apparel vested by law in the husband as the legal owner thereof; and the eame rule prevails with regard to money and all kinds of personalty, as soon as it is placed by the trustees in the hands of the wife in the execution of the trusts (/) ; and, although the coiirts, acting on the established doctrine of equity that the sprout savours of the root (A), will interfere to protect the savings from, or income of, the separate estate from the husband or his creditors (/), and, whore the wife has the Jua disponendi over her separate estate, will recognize the same power over the accumulations of it, yet, if the wife dies without having exercised her jus disponendi, the undisposed-of profits vest in the husband in his own right (m). A woman married before January 1st, 1883, is entitled to the absolute disposal and possession as her separate property of all pertjonal property, "her title to which, whether vested or con- tingent, and whether in possession, reversion, or remainder, shall accrue " (h) after January 1st, 1883. Transfer hif marriage — Movables — Marriages since January Ist, 1883. — In the case, however, of marriages since January Ist, 1883, the wife is absolutely entitled, as has been said before, to all real and personal property which belongs to her at the time of mar- riage, or which is acquired by or devolves upon her after mar- riage (o). Transfer by marriage — Fruits of the tcife's labour. — Formerly the husband was entitled to the fruits of the wife's labotu", unless he had agreed with her to the contrary (^>) ; but by the Married Women's Property Act, 1870 {q), sect. 1, the fruits of her labour were reserved to her independently of her husband. That Act was repealed by the Married Women's Property Act, 1882 {r^ wMch provided that after the commencement of the Act (.■'), all wa earnings, money, and property gained and acquired by [h) A^ g V. IFhicher, 6 Ad. & E. 259. (•) Came v. Brice, 7 M. & W. 183. £i)-dv. Peagrum, 13 C. B. 649. (k) Fettiplan t. Gorges, 1 Ves. jun, 46. {I) Denman v. Cashire, L. R., 10 C. P. 564. Aa to enforcing judgment under 8. 5 of the Debtors Act, see Lraycolt v. Harrison, 17 Q. B. D. 147. (/h) Moloiieg v. Ketmedy, 10 Sim. 264. (w) 45 & 46 Vict. c. 75, s. 5. Ab to tho meaning of "shall accrue," see Reid v. Held, supra. (o) 45 & 46 Vict. c. 75, s. 2. (p) Ashworth v. Outram, 5 Ch. D. 923. {q) 33 & 34 Vict. c. 03. (»•) 45 & 46 Vict. 0. 76. (*) January Ist, 1883. r2 244 INJURIES TO RIGHTS OV PROPERTY. [c'lIAP. VIII. il 237 a wifo in any employment, trade, or occupation in which slio is engaged, or which she carries on separately from her hnsband, or by the exercise of any literary, artistic, or scientific skill (/), should be the separate property of the wifo, an), although ho moy have taken possession of it or endeavoured to sell it or oxoroised acts of ownership. Such disclaimer shall operate from tho date of tho disclaimer (7). Under this Act the bankrupt's leaseholds vest absolutely in tho trustee subject to the power to disclaim (r). After tho trustee had executed a disclaimer of a lease, ho was not entitled, oven though ho was in possession of tho promises, to remove the tenant's fixtures : for tho effect of tho disclaimer was to give the landlord an absolute title to the fixtures as from tho date of tho order of adjudication («). Tho disclaimer, in fact, placed the trustee in the position of never having had any estate in tho leasehold property ; and any severance of tho fixtures by him after the adjudication and before tho disclaimer became by force of tho disclaimer a ^vrongful act ; and tho lessor was upon the disclaimer entitled to recover the value of tho fixtures from tho trustee (O- The effect of a disclaimer is, as regards the liankrupt and his property, that it determines his rights and liabilities as froK . tho date of the disclaimer. As regards tho trustee personally his rights and liabilities aro determined by it as from the date when the property vested in him. As regards third persons their rights and liabilities aro only affected so far as may bo necessary in order to release tho bankrupt and the trustee from liability («). Appli- cation may bo made to tho trustee to decide whether he will disclaim or not, and he must do so within twenty-eight days, or such extended period as may be allowed (x), otherwise he cannot disclaim, and in case of a contract ho will bo deemed to have adopted it (i/), and he will be liable for rent and broaches of J i i (0) A di.sflaimcr in writing signed by tho truHtce'H Holicitor is not siifflfient. Ifihun V. If'allani, 6 Ex. D. 155 ; -19 L. J., Exch. 437 ; and seo tho words of tlie Bcction of the new Act, supra. Tho dis- claimcr must bo made within three months of the trustee's appointment, or within two months after the property came to his knowledge. (Sect. 65.) {]/) See Xx parte Lli/nvi Coal S; Iron Co., L. R., 7 Ch. 28 ; 41 L. J., Bk. 5. Jn re JFilson, L. R., 13 Eq. 186. A disclaimer was not inoperative, although the leave of the court had not been ob- tained. Jieed V. Jlarvey, 6 Q. B. D. 1 84 ; 49 L. J., Q. B. 295 ; but sec now Rule 320, post, p. 241. (q) But this does not apply to rent due between the date of the adjudication and the disclaimer by the trustee in bankniptcy; and it scomsthat, as between the lessor and the lessee, the latter is fitill liable for tho rent, fimi/th v. Xorlli, L. R., 7 Ex. 242; 41 L. J., Ex. 103. In re Clarke, 17 Ch. D. 759. East and West India Dock Co. v. mil, 22 Ch. D. 14 ; 9 App. Cus. 488. Harding v. Preece, 9 Q. B. D. 281. Provision is generally made for this in giving leave to disclabu under Rule 320, post, p. 241. (;•) Wihon v. Wallaiti, 5 Ex. D. 155 ; 49 L. J., Exch. 437. (s) Ex parte Stephens, 7 Ch. D. 127 ; 47 L. J., Bk. 22. (<) Ex parte Brook, 10 Ch. D. 100. (h) Smyth V. North, and other cases in noto (7), supra. (x) See In re Price, 13 Q. B. D. 466. (tj) Sect. 55 (4), and in case of a con- tract it may be rescinded on terms (5). i; is 248 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. 241 covenants from the date of his appointment (s), unless he assign the lease to a pauper («). He may disclaim a lease which has been determined between his appointment and his disclaimer (b), and in general the disclaimer puts an end to the lease, and deprives both landlord and tenant of the benefits of the covenants and clauses coutained in it (c). The landlord cannot upon disclaimer eject a sub-lessee of the bankrupt (^/), but lie is entitled to distrain for rent reserved, and to re-enter for breach of covenants and non-payment of rent [e). The trustee should not disclaim a lease without leave of the court, which may impose such conditions as it thinks fit (/). The court may make an order for vesting any disclaimed pro- perty in any person applying on such terras as it thinks fit, and such property will vest accordingly without any conveyance or assignment (5'). Any person injured by disclaimer is a creditor to the extent of the injury, and may prove for it under the bankruptcy {//). The right of disclaimer is not limited to property under sect. 44, but extends to any property under sect. 168, from which no benefit can accrue to the bankrupt's estate («). By the Bankruptcy Rules, 188G, r. 320, ** A lease may be dis- claimed without the leave of the court in any of the following cases, namely, where the bankrupt has not sub-let or assigned the lease, or creuted any mortgage or charge thereon ; and *' (a) The rent reserved and real value of the property leased, as ascertained by the property tax assessment, are less than 20/. per annum ; or " (b) The estate is administered under the provisions of sect. 121 of the Act ; or " (c) The trustee serves the lessor with notice of his intention to disclaim, and the lessor does not within seven days after the receipt of such notice give notice to the trustee requiring the matter to be brought before the court. i^ '' (;) Wilson V, Wallaiii, supra. Ex parte Dressier, 9 Ch. D. 252. Titterton v. Cooper, 9 Q. B. D. 473 ; 51 L. J., Q. B. 472. fa'^ Hopkimon ,'. Loveriiig, 11 Q. B. D. 92';'52L. J., Q. B. 391. (A) Ex parte Hart Dyke, 22 Ch. D. 410; 52 L. J., Ch. 570. {e) Ex parte Hart Di/ke, supra. Ex parte Glea-, 19 Ch. D. 7; 51 L. J., Ch. 367. Ex parte Allen, 20 Ch. D. 341 ; 51 L. J., Ch. 724. Li/bbe v. JIart, 29 Ch. D. 8; 64 L. J., Ch. 8G0. (rf) SmaUeii v. Ilardwrje, 7 Q. B. D. 524; 50 L. J., Q. B. 367. (() Ex parte Walton, 17 Ch. D. 746 ; SOL. J., Ch. 657. (/) Sect. 55 (;i) ; soe Re Clarke, 17 Ch. D. 759 ; 50 L. J., Ch. 789. Ex parte Jiuxton, 15 Ch. D.289. Ex parte Ladbury, 17 Ch. D. 532. Ex parte Isherwood, 22 Ch. D. 384; 52 L. J., Ch. 370. Ex parte Arnal, 24 Ch. D. 26 ; 53 L. J., Ch. 134. Ex parte Good, 13 Q. B. D. 731 ; 54 L. J., Q. B. 96. //) re Page Brothers, 14 Q. B. D. 401. in) Sect. 65 (6). (h) Sect. 56 (7). Ex parte Zli/nvi Coal Co., L. R. 7 Ch. 28 ; 41 L. J., Bank. 5. Ex parte Blake, 11 Ch. D. 672. Ex parte Corbctt, 14 Ch. D. 122 ; 49 L. J., Bank. 74. (0 Li re Maiighaii, 14 Q. B. D. 956. SECT. I.] RIGHTS OF PEOrERTY GENERALLY. 249 242 " Except as provided by this rule, the disclaimer of a lease without the leave of the court shall be void." The court has no jurisdiction upon disclaimer, under llule 320, ■without any application to give any oompensatior. to +he landlord out of the bankrupt's estate for the use and ^i; . tion by the tnisteo of the leasehold premises for the put j. -sen oi the bank- ruptcy, even though a benefit has resulted to the Jiate (A). The trustc3 does not upon disclaiming become personally liable to the lessor, either upon an implied contract of tenancy, or as a trespasser, in respect of the period between the time when his actual occupation ceases, and the date when the disclaimer is executed (/). The effect of sect. 55 (3), giving the court power to impose terms before allowing a disclaimer and r.uking such orders as to fixtures, tenants' improvements, and other matters arising out of the tenancy as the court thinks just, is to do away with any hardship which the old law may have caused. Where the trustee applies for leave to disclaim the landlord will be required either to take over the fixtures at a valuation, or the trustee will be allowed a reasonable time before disclaiming in which to sever and remove them (»/). Transfer by haukrHptcij — Contracts or dealings with the bankrupt without notice. — The title of the trustee to the property of the bankrupt has relation back to the act of bankruptcy, so that the property ceases to be his, and becomes the property of his trustee from the time of the commission of the act of bankruptcy (n). A person having notice of any act of bankruptcy available (o) against the debtor shall not prove under the order for any debt or liability contracted by the debtor subsequently to the date of his so having notice (/)). With some exceptions (q) all debts and liabili- ties present or future, certain or contingent, to which the debtor is subject at the date of the receiving order, or to which he may become subject before his discharge by reason of any obligation incurred before the date of the receiving order, shall be deemed to be debts provable in bankruptcy (>•). By sect. 49, " Subject to the foregoing provisions of this Act with respect to the effect of bankruptcy on an execution or attach- ment, and with respect to the avoidance of certain settlements and (k) In re Sanduell, 14 Q. B. D. 960 ; 64 L. J., Q. B. 323. (/) Lownj V. Harkei; 5 Ex. D. 170. [m) In re Moaer, 13 Q. B. D. 738. (m) Sect. 43. (o) Available act of bankniptcy means any act of bankruptcy available for a bankruptcy petition at the date of the presentation of the petition on which the receiving order is made. (Sect. 168.) (/;) Sect. 37 (2). ('/) I.e., save unliqui Jilted damages (sect. 67 (1)), and cases witliin sect. 67 (/•) Sect. 37 (3). " Debt provable in bankruptcy" or "provable debt" in- cludes any debt or liability by this Act made provable in bankruptcy. (Sect 168.) ." •' ^ • * I 250 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. H 243 preferences («), nothing in this Act shall invalidate, in the case of a bankruptcy — " (a) Any payment by the bankrupt to any of his creditors ; " (b) Any payment or delivery to the bankrupt ; ** (c) Any conveyance or assignment by the bankrupt for valuable consideration ; " (d) Any contract, dealing, or transaction (i), by or with the bankrupt for valuable consideration ; " Provided that both the following conditions are complied with, namely, — " (1.) The payment, delivery, conveyance, assignment, contract, dealing, or transaction, ns the case may be, takes place before the date of the receiving order ; and " (2.) The person (other than the debtor) to, by, or with whom the payment, delivery, conveyance, assignment, contract, dealing or transaction, was made, executed, or entered into, has not at the time of the payment, delivery, conveyance, assignment, contract, dealing or transaction, notice of any available act of bankruptcy (x) committed by the bankrupt before that time." Wheio a guarantee society, in pursuance of an agreement between them and the bankrupt, entered into his house and seized his goods, without any knowledge of his having committed an act of bankruptcy, it was held that this was a "transaction" protected by the 13!Jrd section of the repealed Act (.r), and that the assignees could not maintain an action against the guarantee company for the entrance and seizure (y). So, where a building club, Avithout any notice of an act of bankruptcy, and in pursuance of a stipula- tion with the contractor employed to build some houses for tliem, on his failing to proceed with the works, took possession of the materials, implements, and plant, he had brought on the ground, it was held that this was a protected transaction (s). Subject to the provisions of the 87th section of the Act of 1869, giving to the trustee the proceeds of an execution for a sura exceeding 50/. levied on the goods of a trader, any execution against the bankrupt's land or goods, executed in good faith, by seizure in case of land, and by seizure and sale in case of goods, before the adjudication, and without notice of any previous act of (s) See post, p. 256. (<) As to the meaning of these words, Bee Krehlv. Great Central Gas Co., L. R., 6 Ex. 289. Ex parte rUlers, 17 Ch. D. 653 ; 50 L. J., Ch. 691. See sect. 45 (1). (m) See supra, as to these words, and see Hood v. Keubij, 21 Ch. D. 605 ; 52 L. J., Ch. 204. (x) 12 & 13 Vict. c. 106. (y) Krehl v. Great Central Gas Co., L. R., 5 Ex. 298; 39 L. J., Ex. 197. As to the sufiBcicucy of a seizure in such a case, see Breicin v. HJiort, 5 El. k Bl. 237. (-') In re Waugh, 4 Ch. D. 524: 46 L. J., Bk. 26. SECT. I.] RIGHTS OF PKOrERTY GENERALLY. 251 m 244 bankruptcy, was valid (l). But these sections had no opera- tion as regards a transaction void by tbo Bills of Sale Act (w). Sects. 95 and 87 of the Act of 1869 are reproduced, with certain variations, by sects. 45 and 46 of the new Act («). By sect. 45 (1), " Where n creditor has issued execution against the goods or lands of a debtor, or has attachec"" any debt due to hira, he shall not be entitled to retain the benefit of the execution or attachment against the trustee in bankruptcy of the debtor, unless he has completed the execution or attachment before the date of the receiving order, and before notice of the presentation of any bankruptcy petition by or against the debtor, or of the commission of any available act of bankruptcy by the debtor. " (2) For the purposes of this Act, an execution against goods is completed by seizure (uii) and sale ; an attachment of a debt is com- pleted by receipt of the debt; and an execution against land is completed by seizure, or, in the case of an equitable interest, by the appointment of a receiver. *' 46. (1) Where the goods of a debtor are taken in execution, and before the sale thereof notice is served on the sheriff that a receiving order has been made ap^ainst the debtor, the sheriff shall, on request, deliver the goods co the official receiver or trustee under the order, but the costs of the execution shall be a charge on the goods so delivered, and the official receiver or trustee may sell the goods, or an adequate part thereof, for the purpose of satisfying the charge. " (2) Where the goods of a debtor are sold under an execution in respect of a judgment for a sum exceeding twenty pounds, the sheriff shall deduct the costs of the execution from the proceeds of sale, and reiain the balance for fourteen days, ai d if within that time notice is served on him of a bankruptcy petition having been presented against or by the debtor, and the debtor is adjudged bankrupt thereon or on any other petition of which the sheriff has notice, the sheriff shall pay the balance to the trustee in the bank- ruptcy, who shall be entitled to retain the same as against the execution creditor, but otherwise he shall deal with it as if no notice of the presentation of a bankruptcy petilion had been served on him. " (3) An execution levied by seizure and sale on the goods of a debtor is not invalid by reason only of its being an act of bank- ruptcy, and a person vvho purchases the goods in good faith under a sale by the sheriff sliull in all cases acquire a good title to them against the trustee in bankruptcy." 5 ■ i (I) See post, p. 483. (m) Tost, p. 461, note (i). («) 46 & 47 Vict. c. 62. (nil) Delivery of land under an ekgii is a seizure. In re Hobson, 33 Ch. D. 493. 2o2 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. m. 245 If ft mftn buys goods of a bankrupt, and pays over the price to the latter "vitli knowledge of the act of bankruptcy, he will have no title to the goods as against the trustee ; but, if he had no notice of the act of bankruptcy at the time he paid the money, the transaction will bo protected by the above sections. A trustee in bankruptcy does not, by sending in a bill of parcels or invoice of goods purchased, necessarily ratify a dealing between the bankrupt and a third person as a sale. It may amount only to a qualified offer on his part to adopt the transaction as a sale, provided the defendant will pay for the goods, so as to leave it open to him to maintain an action for the conversion of the property, if the defendant will not pay the money demanded (o) . But, if the trustee imreservedly adopts the transaction as a valid contract of sale, he cannot afterwards treat a refusal to re-deliver the goods as a conversion ( /)) . Transfer hif Ixinliritpfcij — After-acquired properti/. — Property coming to the bankrupt after adjudication and before ho has obtained his discharge passes to the trustee (y). But property coming to a liquidating debtor, after he has obtained his discharge, does not pass to the trustee, although the bankruptcy or liquidation may not have been closed (r). But damages in an action for a personal tort recovered by an undischarged bankrupt do not pass to his trustee, although, if the bankrupt accumulates the money and invests it, the trustee may be entitled to the fund (s). Money received by an undischarged bankrupt and paid away for value cannot be followed by the trustee, though the person to whom the money was paid had notice of the bankruptcy (/). Where a bankrupt trades without the knowledge of his trustee, anj' property which he may acquire by so trading will pass to the trustee for i\ a benefit of the creditors under the bankruptcy ; but, if the trustee permits him to trade, and knowingly allows him to deal with new creditors, who, in ignorance of his circumstances, deal with him upon the faith of his ability to contract— especially where he has changed his trade or the place of carrying it on — the new creditors have a right to be paid out of the newly-acquired assets before the creditors under the first bankruptcy («). The creditors of an und'scharged bankrupt under the Act of 18G9 have no rights against property acquired by him after the close of the i F ■! t (o) Valpi/ V. Sanders, 5 C. B. 893 ; 17 L. J., C. P. 249. (;<) Edwards v. Hooper, 11 M. «& W. 363. (7) 46 & 47 Vict. c. 52, s. 44. (>•) FMs V. Jloiihiois, L. -R., 10 Ch. 479 ; 44 L. J., Ch. 691. In re BtnucWs Trusts, L. R., 10 Ch. 490 ; 44 L. J., Ch. 244. [k) Ex parte Vine, 8 Ch. D. 364 ; 47 L. J., Bk. 110. [t) Ex parte Dcu hurst, L. R.,7Ch.l85; 41 L. J., Bk. 18. (/() Troaghton v. Gitteij, Ami). 629. Englcbark v. Xixon, L. R.! 10 C. P. 646 ; 44 L. J., C. P. 396. SECT. ••] RIGHTS OF rUorERTY GENERALLY. 253 246 bankruptcy except such rights as are given to tliem by sect. 54, and those rights cannot be enforced after the death of the bankrupt («»). After the close of a bankruptcy, property falling in to the bankrupt belongs to him, and not to the trustee in bankruptcy, although the bankrupt has not obtained an order of discharge (^). Tranufvv by haitkriiptcij — Annidmcut of adjudication. — By sect, 35 (2) of the Bankruptcy Act of 1883, when an adjudication is annulled, all sales and dispositions of property and payments duly made, and all acts theretofore done by the official receiver, the trustee or the court, will be valid; but the property of the debtor will vest in such person as the court may appoint, or in default of appointment will revert to the bankrupt for all his estate or interest therein, upon such terms as the court may order (//). The corresponding section of the Act of 1869 was held to apply to the case of a bankruptcy being annulled by whatever means, and to operate, not only on the goods and chattels of the bankrupt taken possession of by the trustee and remaining in specie, but also on cash taken ])ossession of by him, and paid into a banking account, or which formed the proceeds of the sale of goods by the trustee (z). If the trustee permits a claim to be barred by the Statute of Limitations, the claim will continue to be barred after the bankruptcy is annulled {a). Voidable tramfers. — Transfers are not infrequently voidable as against one or more classes of persons. Thus, every transfer which constitutes an act of bankruptcy, or amounts to a frau- dulent preference, is voidable as against the trustee in bank- ruptcy ; a fraudulent transfer is voidable as against a creditor who is delayed by it ; and a transfer without consideration is voidable as against a subsequent purchaser for valuable consideration. These transfers are, however, as a general rule, good as between the parties to them, and so far as regards all other persons, except those who are entitled to avoid them. Thus, if a transfer of property has been actually effected either hy deed of transfer or by actual delivery, it is not competent to either of the parties to the transfer to set up or show that it was done for the purpose of effecting a fraud on third persons. Acts done may be valid as between the parties, though void as to others. Thiis, an assign- ment made for the purpose of defeating one of several creditors is (««) Green v. Smith, infra. {x) In re Fettifs Estate, 1 Ch. D. 478 ; 46 L. J., Bk. 63. Oreen v. Smit/i, 24 Ch. D. 672 ; 52 L. J., Ch. 411. (y) As to the effect of this section upon the right of an execution creditor who has been restrained from selling under the bankruptcy, see Crew v. Terri/, 2 C. P. D. 403; 46 L. J., C. P. 787. A copy of the order annulling the adjudi- cation must be forthwith gazetted and published in a local paper. (;) liaileij v. Johnson, L. R., 7 Ex. 263; 41 L. J., Ex. 211. [a) Markwickv. Hardingham, 15 Ch. D. 339. I id T fmw^iw 11^, twiiuf .|iv« 'jpwvjw*"*'^*^ i ftm.iwufv^fiWt 254 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. 247 a good deed as between the parties, but void as against credi- tors ; but, if there has beeii no actual transfer of the property, but only a deposit of chattels in tho hands of a bailee, for the purpose of defeating a creditor, the depositary cannot set up the fraudulent character of tho deposit in order to deprive the plaintiff of goods wliicl). are his property, and to which the depositary has no semblance of title (b). But, if goods are delivered or money is paid for an illegal purpose, as, for instance, to defraud creditors, the person who has so delivered the goods or paid tho money may recover them back before the illegal purpose is canied out (c). Voidable traiin/ers — Fraiidukiit transfers. — By the 13th Eliz. c. 5 {d)j for the avoiding of feigned and fraudulent grants and alienations, devised to delay or defraud creditors or others of their just and lawful actions, debts, &c., it is enacted (sect. 2), that every gift, grant, «&.c., of land, tenements, &c., goods and chattels, or of any profit or charge out of the same, shall bo from thenceforth deemed and taken, as against the person whose actions, debts, &c., shall be in anywise disturbed, hindered or defrauded, to be void and of no effect. But nothing in the Act is to invalidate (sect. 6) a conveyance made bond fide for a valuable consideration by persons having no notice of the fraud, &c. In considering whether an assignment is void under this statute, tho question is, whether it was intended to have operation in favour of the claimant under it, and to confer upon him all the rights of ownership, or whether it was contrived and intended to be used for the benefit of the grantor (e). The mere intention to defeat an execution creditor does not in itself constitute a fraud ; the question is, whether there was a bond fide intention on the part of both parties to transfer tho property in reality, or whether the transaction was only colourable, and it was secretly intended that the grantor should preserve his dominion over the property, using the assignment as a mere pretext to keep off creditors (./'). An ante-nuptial settlement devised for the purpose of defeating the husband's creditors will not bo supported when the wife is a party to the fraud (•] RIGHTS OF PROPERTY GENERALLY. 265 248 and is for the benefit of some of the creditors to the exclu- sion of others (A). Fraudulent transfers — Absence of n valuation or appraisement.— If there has been no proper valuation or appraisement of tlio property prior to the assignment, this is a circumstance from which it may be inferred that the transfer was not meant to be " real one (/). Fraudulent transfers — Inadequacy of price. — If the purchase- money, or consideration for the transfer, appears to be wholly inadequate, this is a badge of fraud (/») ; but a sale at a low price is not on that account alone necessarily fraudulent (/). Where the defendant was indebted to Twyne in 400/., and to the plaintiff in 200/., and, pending the plaintiff's action, the defendant made a general deed of gift of all his goods and chattels to Twyne in satisfaction of his debt, but, nevertheless, continued in possession of the said goods and chattels, and dealt with them as his own, and the plaintiff afterwards recovered judgment against the defendant and issued execution, and the question was, whether the deed was fraudulent imder the statute of 13 Eliz. c. 6, it was resolved that it had signs and marks of fraud: — 1. Because it was a general grant of all his chattels without excepting wearing apparel or things of necessity ; for it is commonly said quod dolosus rersaiur in generalibus. 2. The grantor continued in possession and used the goods as his own, and by reason thereof traded and trafficked with others (wj). 3. It was made in secret; et dona clandestina sunt semper suspiciosa. 4. It was made pending the writ. 5. There was a trust between the parties ; for the donor possessed all, and used them as his proper goods ; and trust is the cover of fraud. Secondly, it was resolved that, notwithstanding there was a true debt due to Twyne, and a good consideration for the gift, yet it was not within the proviso of the Act of Elizabeth, saying that the Act shall not extend to any estate or interest in goods and chattels made on good consideration and bond Jidc ; for, although it is on a true and good consideration, yet it is not bona fide ; for no grant shall be deemed bond fide within the said proviso which is accompanied with a trust. As, if a man be indebted to five several persons in the several sums of 20/. and hath goods of the value of 20/., and makes a gift of all his goods to one of them in satisfaction of his debt, but there is a trust between them that the grantee shall deal favourably with him in regard of his poor estate, either to permit the grantor, or some other person for him or for his benefit, to use {h) Alton V. Harrisoti, L. R., 4 Ch. 622. Boldero v. London and Westminster Discount Co., 6 Ex. D. 47. (i) Twynt't case, infra. {k) Bewey v. Bayntim, 6 Exch. 281. (/) Lee V. Hart, 10 Exch. 560. (;«) Paget v. Terchard, 1 Esp. 201. 256 INJURIES TO RIGHTS OF PROrERTY. [ciIAP. VIII. ill 249 or have possession of them, and is contented that he shall pay him his debt when he is able, this shall not be called bondjide within the said proviso; and so a good consideration does not suffice, if it be not nlso bond Jide, And, therefore, when any grant of goods is made in satisfaction of a debt by one who is indebted to others, it should be made in the presence of witnesses, and tlie goods should be appraised to their full value, and possession taken of them after the execution of the deed of grant {it), Fi'umhtlfiit (raihs/ers — Tranx/er of poKHomon. — Where there is no assignment in writing, the fact that the debtor remains in possession of the goods is a strong mark of fraud, unless the transfer of the property is so notorious as to rebut the presumption of fraud {o) ; for, where the transaction is perfectly notorious, so that the continuance of possession of the property does not create any false credit in the neighbourhood, the mere continuance of possession is not necessarily fraudulent {}>). Voluniarii fran>ifcrs — Tramfci'H void aciuimt creditors. — A voluntary settlement is void as against creditors, if the settlor was largely indebted at the time when it was made (7), or made it with a view to a state of things in which he might become indebted, as, for instance, on the eve of engaging in trade of a hazardous character (r). But, if a voluntary settlement is impeached by a subsequent creditor, whose debt was not contracted at the date of the settlement, it must be shown that the necessary result of the settlement was to delay, hinder, and defraud the creditors, in which case it is a probable presumption of fact that the settlement was made with that intent (s) ; and, in the case of a post-nuptial settle- ment, although the husband may not be in debt at the time he makes the settlement, yet, if the settlement is made long after the marriage, and not in pursuance of any agreement to make a settle- ment prior to the marriage, nor in consequence of an accession to the wife's fortune, and the husband becomes indebted to any con- siderable extent immediately afterwards, the settlement will be considered fraudulent. But it will be othermse, if the husband received property from the wife at the time of the marriage, and made the post-nuptial settlement as a fair and equitable provision («) Twy>ic''a case, 3 Co. 80 ; 1 Sinitli's L. C. 1. («) Latimer v. liaison, 4 B. & C. 054 ; 1 Smith's Lead. Caa., 6th cd. 12, 13. {p) Leonard v. Baker, 1 M. & S. 254. Kidd V. Rawlinson, 2 B. & P. 60. Wat- kins V. Birch, 4 Taunt. 822. Jezeph v. Ingram, 8 lb. 843. (7) Took V. Tuck, 12 Moore, 435. Townsend v. Windham, 2 Ves. sen. 11. Yowiij V. Fletcher, 3 H. & C. 732 ; 34 L. J., Ex. 154. As to fraudulent settle- ment by iicrsons who become bankrupts, see post, p. 252. ()•) Muckai) V. Douglas, L. R., 14 Eq. 106; 41 L. J., Ch. 539. (v) Freeman v. Pope, L. R., 5 Ch. 538 ; 39 L. J., Ch. 689. Taylor v. Voenen, 1 Ch. D. 636. See Ex parte Mercer, 17 Q. B. D. 290. SIX'T. I.] RIGHTS OF rUOPKUTV GKNKUALLY. 2.> )t 250 for her, he being at the time in solvent circumstances (/) ; or if the settlement contains a provision for the payment of the husLand's debts out of the settled property (it) . If the husband, after marriage, conveys his furniture, stock, and movables to trustees for the uso of his wife and children, and remains, notwithstanding sucli con- veyance, the apparent possessor and owner of the property, the cf)n- veyance so made is prima fucie a fraud as regards creditors (.r). But the possession by the husband and wife of property, stock-in-trade, and furniture, limited to the separate use of the wife before marriage, is no badge of fraud, and does not render it liable to be seized for the husband's debts (//). A marriage settlement, so far as it is made in favour of collaterals, is voluntary (s). Where a solicitor, being in insolvent circumstances, assigned the good-will of his business in consideration of a sum of money paid down and an annuity, secured by bond, to be paid to his wife for life, with remainder to himself for life, it was held that the settlement of the annuity was void as against creditors. '* This," observed Wood, V.-C, " is, in effect, a contract by which the debtor is making sale of his property by means of a covenant that ho will abstain from carrying on business, and taking a settlement upon his wife for life for her separate use, witli the immediate remainder to him- self for life, the whole object plainly being to obtain the benefit of the entire property for his own use and advantage" («). A creditor under a voluntary post-obii bond is as much entitled to the benefit of the statute as any other creditor (6). Vohintaru transfers — Avoidance by subsequent purchasers. — Voluntary conveyances, gifts, and transfers, defrauding subse- quent purchasers, are made void by the 27 Eliz. c. 4, s. 2 ; and penalties are imposed (s. 3) upon all persons who are parties or privies to such conveyances, &c. ; but any conveyance, lease, &o., made bond fide upon good consideration, is not invalidated. This statute is to a great extent declaratory only of the common law, which invalidates every voluntary conveyance or gift and voluntary settlement of property made without valuable consideration as against a subsequent purchaser for value of the same property, even though he had notice of the prior voluntary conveyance or settle- ment ; for, whenever the question is between one who has paid a il !i U) Lush V. WUkinson, 6 Ves. 384. Battcnbee v. Farrington, 1 Swanst. lOG. JloUouayy. Milhrd, 1 Mad. 419. Kiinn V. Wilsmore, 8 T. R. 629. («) Gorge v. Milhank, 9 Ves. 194. \x\ Arundel v. Fltipps, 10 Ves. 139. (V) Jarman v. Woolloton, 3 T. R. 618. Cadogan v. Keniiett, 2 Cowp. 436. Ilasel- A. xutou V. GUI, 3 T. R. 620, n. ; 3 Doug. 415. (--) Smith V. Chervil/, L. R., 4 Eq. 390. (a) Neale v. Lay, 28 L. J., Ch. 46. Fnuch V. Fnmh, 6 Do G. M. & G. 102. (b) Adamea v. Mallet t, L. R., 6 Eq. 468. f IP 'I K';-: ■: ::r. 258 INJURIES TO RIGHTS OF PROPERTY. [CIIAP. VIII. 261 vnlua1)lo considorntion for an ostnto and another who has givon nothing for it, it is a just presumption of law that suoh vohintary conveyance founded only on considerations of affection and regard, if coupled with a subsequent sale, was made to defraud those who should afterwards become purchasers for a valuable consideration ; and it is more fit that a voluntary grantee should be disappointed than that a fair purchaser should bo defrauded (/■). If, therefore, after marriage, either the husband or wife make a conveyance of lands to the use of themselves or their children, such conveyance is absolutely null and void against a subsequent purchaser for value, although he bought with notice of the settlement (d), unless it was made ] iiant to an agreement in writing entered into prior to the marriage [n) ; but, if husband and wife, each of them having inte- rests, no matter how much, or of what degree, or of what quality, come to an agreement which is afterwards embodied in a settle- ment, that is a bargain between husband and wife, which is not a transaction without valuable consideration (./'). A deed cannot bo set aside merely because it is a voluntary conveyance ; and one voluntary conveyance cannot defeat another. It has also been held that, if there are two voluntary conveyances or gifts of land by deed, the first voluntary conveyance is not annulled by the second, and that a purchaser from the second voluntary grantee or donee cannot avoid the estate created by the first gift ; so that, if a man makes a voluntary conveyance or gift of land to A, and then de- vises the same land to B, and B sells to C for value, C has no title to such land, and cannot defeat the gift to A {g). A husband acquiring an estate by marriage, or under a post-nuptial settlement not made in pursuance of articles entered into before marriage, is not a purchaser within the meaning of the statute, and is not entitled to avoid a previous voluntary conveyance [h). In con- sidering the operation of the statute, the court only considers whether the transaction is one purely voluntary, or whether it is one of bargain ; and the mere quantum of consideration is not material (t). Evidence is admissible to show valuable considera- tion beyond what appears on the face of the deed {k) . A conveyance, 252 though voluntary upon the face of it, and at first void against [c) Doev. JI/rt«)iiH7, OEast, 59. Clarke V. Wright, 6 H. & N. 849 ; 30 L. J., Ex. 113. {d) Goftch's case, 5 Co. 60 a. Evch/n V. Templar, 2 Br. C. C. 148. rulvertoft V. Pidvertoft, 18 Ves. 84. Buckle v. Mitchell, ib. 110. Johnson v. Legard, C M. & S. 60. Feter v. Nieolk, L. R., 11 Eq. 391. (e) Goldinett v. Toxcnsend, 28 Beav. 445. (/) Teaadale v. Braithtvaite, 4 Ch. D. 85; 6 Ch. D. 630; 46 L. J., Ch. 725. In re Foster and Lister, C Cli. D. 87 ; 46 L. J., Ch. 480. (g) Doe V. Rusham, 21 L. J., Q. B. 139; lO.Jur. 359. (/)) Douglas v. Ward, 1 Ch. C. 99, Doc V. Lewis, 20 L. J., C. P. 180. (i) Tounend v. Toker, L. R., 1 Ch. 446 ; 35 L. J., Ch. 608. liayspoole v. Collins, L. R., 6 Ch. 228 ; 40 L. J., Ch. 289. {k) Tounend v. Tokcr, supra. SECT. I.] RIGHTS OF PUOPERTY GENERALLY. 2o<) a purchase for value, may yot become valid by force of subsoquout events (/) . If a general power of revocation is reserved in a settlement of realty, or if the exercise of such a power is made to depend upon the consent of persons under the influence and control of the settlor, the settlement cannot be supported against creditors, nor against subsequent purchasers. If tlm settlor reserves to himself the power of charging the land to " tlie full value," this reserva- tion is tantamoimt to a general power of revocation, and defeats the settlement («<). Vohintdvif transfers — Avoidance hy trust ecu in bankruptcy. — By the Bankruptcy Act, 188.'{, sect. 47 («), it is further pro- vided that any settlement (conveyance, or transfer of property), shall be void against the trustee, if the settlor becomes bankrupt within two years from the date of the settlement, and shall also bo void if the settlor becomes bankrupt within ten years, unless the parties claiming under the setth^ment can prove that at the date of the settlement the settlor was able to pay all his debts without the aid of the property comprised in it, and that the interest of the settlor had passed to the trustee on the execution of it. But this section does not apply to settlements made before, and in conside- ration of, marriage, nor to a purchaser (o) or incumbrancer in good faith and for valuable consideration, nor to settlements, &c,, made on the settlor's wife or children, of property which has accrued to him in right of his wife after marriage. Any covenant or contract made in consideration of marriage for the future settlement of pro- perty in which he had not at the time of the marriage any interest vested or contingent, is also void against the trustee, if the pro- perty has not been transferred, or money, &c., paid, before the bankruptcy ; but this does not apply to property to which tlio bankrupt becomes entitled in right of his wife (^>). The similar section of the Act of 1869 was held to apply to settlements made before, as well as after, that Act came into operation (). ('/) Ex parte Dawson, L. R., 19 Eq. 433; 41 L. J., Bk. 40. ((•) hx part,' Itasidl, 19 Ch. D. 5S8 ; 61 L. J., Ch. 5il. (.■<) //( re ]'!.,>/er, 15 Q. B. D. 082 ; 54 L. J., Q. B. 533. S2 200 INJURIES TO KIUIIT8 OF PROPKRTY. [riUP. VIII. Voidable tinuftfci'H — Act of haiikniptoy — Tmnxfo'H to ti'mtveH for cretcy. A transfer is fraudulent within the meaning of this section when it is a fraudulent transfer at common law, or under the 13 Eliz. e. 5, or when it is a transfer of the whole of a debtor's property in favour of one or more creditors, to the exclusion of the others, or Avhen it is a voluntary transfer of part of a debtor's property in contemplation of bankruptcy. The 4th section, sub-Koot. (c) also enacts that tlio debtor com- mits an act of bankruptcy, if in England or elsewhere he makes any conveyance or transfer of his proi)orty, or any part thereof, or creates any charge thereon which woidd under this or any other Act be void as a fraudulent preference if ho were adjudged bank- rupt («). Voidnhk trdiisfrrs — Act of hdidinipfvi/ — TrauKfcrn void an against creditors. — We have already seen that a transfer is void against creditors, either when it is fraudulently devised to delay or defraud them of their actions {j'), or when it is a voluntary transfer by a person who is so largely indebted at the time that the necessary result of it is to delay or defraud the creditors (//). Voidable tramfcrn — Act of bankruptcy — Transfers of all the debtor^s property. — A transfer need not necessarily bo fraudulent in fact, or voluntary, to make it an act of bankniptcy. An assign- ment by a debtor of his property to a trustee for the benefit of some creditors to the exclusion of others, notwithstanding any amount of pressure, is an act of bankruptcy ; for any scheme or arrangement made by a person on the eve of bankruptcy for the distribution of his assets otherwise than according to the provisions of the bankruptcy laws is a plain and palpable fraud on those laws(s). An assignment, even under pressure, of all a debtor's 264 property for a past debt is an act of bankruptcy (a), whethor it is made by a trader or by a non-trader (i) ; and so is a mortgage by a trader of the whole of his property to secure an antecedent debt, (0 46 & 47 Vict. c. 52. (tt) This pro^^8ion was not contained in the older Htatutcs, rnd it was doubted whether a fraudulent pieference was an act of bankruptcy. Ex parte IlaUiday, L.R.,8Ch.283. £ji- parte StiibbiHs, 17 Ch. D. 68 ; 50 L. J., Ch. 547. As to what is a fraudulent preference, see post, p. 266. {x) Ante, p. 247. (//) Jute, p. 249. (z) Tomkws V. Safferii, L. R., 3 App. Cas. 213; 47 L. J., Bk. 11. (fl) Johnson v. Fescnmeyer, 25 Beav. 88; 3DoG. & J. 13. if,) In re Wood, L. R., 7 Ch. 302; 41 L. J., Bk. 21. SECT. I.] niailTS OF I'KOl'KUTV OlCNKIfALLV. ','01 although it hns not tho ofToct of Htopping his trado, and nltliough, when tho trusts of tho niortgago-deod aro carried out, then* Avill 1)0 a Riihstantial Burplus which may prevent tho deed from ulti- mately defeating tlio creditors (r) ; for it enables tho trader to continue his trado under a fnlso appearanco of a possossion of stook, property, and ofTeets, and to gain a dolusivo credit, when ho is in fact insolvent (,) J.'iiilvn V. Cnittudl, 1 EI. & Bl. 15; 22 L. J., Q. B. 28. («) Ex parte Wimhr, 1 Ch. D. 290; S. C. on app., nom. Ex parte Hheen, ib., 560; 45 L. J., Bk. 89. ( ») Ex parte King, 2 Ch. D. 256 ; 45 L. "J., Bk. 109. Ex paite Johnson, 26 Ch. D. 338 ; 53 L. J., Ch. 702. {q) Ex parte JJaun, 17 Ch. D. 26. Ex parte Wilkinson, 22 Ch. D. 788 ; 52 L. J., Ch. 657. ()•) Ex parte Reed, L. R., 14 Eq. 586. («) H'oodhouse v. Miirrai/, L. R., 2 Q. B. 634 ; 4 Q. B. 27 ; 38 L. J., Q. B. 28. Ex parte Cooper, 10 Ch. D. 313; 48 L. J., Bk. 54, disapproving of I'hilps V. Uornstedt, 1 Ex. D. 62. Ex parte l\njne, 11 Ch. D. 539. (0 Ex parte Eis/ier, L. R., 7 Ch. 636 ; 41 L. J., Bk. 02 Ex parte Jtiirtoii, 13 Ch. J). 102. (!<) Ex parte Kilner, 13 Ch. D. 245. Ex parte Jlaiixurll, 23 Ch. D. 626 ; 62 L. J. Ch. 737. lii SECT. I.] RIGHTS OF PROPERTY GENERALLY. 263 A sale by o debtor of tlae whole of his stock-in-trade to a bond file purchaser for a fair price {x), or a mortgage of the whole for a present advance (//), does not necessarily constitute an act of bankruptcy, although the creditors raav ultimately be delayed or defeated, and the misnpplif^?.tion of the proceeds was contemplated by the trader at the time of the sale or mortgage, because tlie trader gets a present equivalent. It would bo otlierwise, however, if the assignee had express or implied notice that the bankrupt was selling with a fraudulent intention (■;). Where there is no intention at the time on the part of the debtor or his creditor to convey away all the property, although it afterwards turns out that that is the effect of Avliat has been done, there is no fraudulent conveyance within the meaning of the Act (a). Voidcthic traiifi/crs — Acf of bffn/iri(j)fci/ — Framhilcnt preference. — It was doubtful ^\■hother a fraudulent preference would be void as an act of bankruptcy {h) ; but now by sect. 4, sub-sect. (c). a fraudulent preference is made an act of bankruptcy (c) . Where it cannot be avoided as au act of bankruptcy, it may .still be avoided under sect. 48, which enacts that every conveyance or transfci of property, or charge thereon made, every payment made, every obligation incurred, and every judicial proceeding taken or suffered, by any person unable to pay his debts as they become duo from his own money in favour of any creditor or any person in trust for any creditor, with a view of giving such creditor a preference over the other creditors, is (if the person making, taking, paying, or suffering tlie same is adjudged bank- rupt on a bankruptcy petition pret^^nted within three mouths aftc the date of making, taking, piiying, or suffering the same) to be deemed fraudulent and void as against the trustee in the bank- ruptcy ; but the section is not to affect the rights of any person making title in good faith and for valuable consideration through or under a creditor of the bankrupt. It was formerly held that the similar section of the Act of 18G9 had not altered the law with respect to fraudulent preferences, and that it was still necessary, in order to 257 constitute a fraudulent preference, that the conveyance ur transfer should bo made volimi rily and in contemplation of bank- ruptcy, and that, if made upon pressure, the intention of the bankrupt to prefer one creditor t ) an:)tl)er was not material (., Q. B. 08. Ex parte Jlnt/ii/ai/, L. It., 8 Ch. 283. l\x parte tiliiMiiis, 17 Ch. D. 58; SOL. J., Ch. 517. (c) Ante, p. 253. ((/) Ex parte Tempest, L. R., 10 Eq. 648; 6 Ch. 70; 40 L. J., Bk. 22. /,«• parte Topham, L. E., S Ch. Cll. (a) Baxter v. I'ritchard, 1 Ad. & E. 45(). JJ,/l V. Simp.svn. 2 H. k N. 410; 20 L. J. , E.x. 303. }!'/, itmore v. ( •Inridijr, 2 B. k S. 213 ; 33 L. .]., Q. B. 87. (v) In re Colmure, L. K., 1 Cli. 128; 35 L. J., Bk. 8. (;) Eraxer v. Levi/, C H. & N. 16. (n) 7'/Mr>,v V. Horiistedt, L. R., 8 Ex. 26 ; 1 Ex. D. 72. But sec Ex parte Cooptr, 10 Ch. D, 313, tupra, c X i \ PST n 2G4 INJURIES TO RIGHTS OF rROPERTY. [ciIAP. VIII. :i I , I ! i Tho moro modern cases go to sliow that there may bo a substantial fraudulent prefemnce, although coupled ■with a bona fide pressure of tho baukrupt, and that although tho old cases may serve as a guide to the interpretation of the ^vords of the statute, yet the decision will now turn on the construction of the statute and not on the consideration of tho old cases {c). If the payment is made without any view of ^jrefening one creditor to another, it is not a fraudulent preference, although made by a person unable to pay his debts as they become due (./'). If go /ds liave been delivered to a creditor by way of fraudulent preference, and have been sold by him before the bankruptcy, the ti'ustoe may, nevertheless, recover the proceeds from the credi- tor (j/). Payments in the ordinary course of trade, honouring bills of exchange presented at maturity, payments of debts which have become due in tho usual and customary manner, and payments made in fulfilment of a contract or engagement to pay in a parti- cular manner or at a particular time, although made witliout any express demand by the creditor are not voidable as fraudulent preferences (//). By sect. 25 (2), no payment or composition made, or security given, nfcer arrest under that section, is exempted from the pro- visions of the Act, rolatinj to fraudulent preferences. The creditor of an insolvent debtor, who dies williout luiving been adjudicated bankrupt, is entitled to the benofi< of any pay- ment or security made or given by the doltior, although such payment or security would, in case of bankruptcy, have been sot aside as a fraudulent preference (/). FkiiiiouH transfers. — By the 7 & 8 Wm. 3, c. 25, s. 7, it is enacted that all conveyances of any messuages, lands, tenements, &c., in order to multiply voices, or to split and divide the in- terest in any houses and lands among several persons to enable them to vote at elections, shall be "void and of none effect;" and the 10 Anne, c. 23, s. 1, enacts that all estates and convey- ances made to any person in any fraudulent or collusive manner, 258 on purpose to qualify him to give his vote at elections (sub- ject to conditions or agreements to defeat or determine such estate, or to re-convey tho same), shall be deemed and taken, against those persons who executed the eam^?, as free and absolute, and be holden o,nd enjoyed by such persons, discharged from nil manner {e) Ex parte Grlflith, 23 Ch. D. 69, IJj- parte Jlill, 23 Ch. D. GO.') ; 52 L. J., Ch. 903. j:jp'irt>' Hull, 19 Ch. D 580. ( f) E.r i>a:re Jlol!,ii>d, L. H., 7 Ch. 24 ; 3 41 L. J., Bk. 00. {(/) .Marks V. F'hlmmi, L. R., 5 Q. B. 276; 39 L. J., Q. B. 101. [k) Ex vnrte Jlt'.'eh\i>r>i, L. R., 12 Eq. 3f,'t; 40 L. J., Bk. 79. ('1 MMIetou V. I'olloik, 2 Ch. D. !01 ; 45 L. J., Ch. 293. ^rmmti^fimt * .'^ SECT. I.] RIGHTS OF rUOrEllTY GKNEEALLY. 2G5 of trusts, conditions, clauses of re-ontrj, powers of revocation, provisoes of redemption, or other defeasances whatsoever for defeating such estates or for the ro-conveying tliereof. A deed may bo void by statute, and yet it may not bo competent to tlio parties thereto to set up its invalidity : and it has boon held that the true construction of these two statutes is that, dealing only with tho subject of parliamentary law, they prevent a man from acquiring a riglit to vote which it was contrary to the policy of the law he should acquire, but that they leave the conveyance to operate upon the land freely and absolutely in all other respects (/■•). InJurk'H to riylitx of pvopcriij hij ivonh spohcn. — Where the injury to a right of property consists in an act done, the nature of the act depends so much on the nature of the property, that it is more convenient to consider the injuries of which different rights of property are susceptible after considering the resi)eetive rights; but, where the injury complained of consists in words spoken, the nature of the iuj ury is so similar, and it is followed by such similar consequences, in the ease of all kinds of property, that it will bo more convenient to consider injuries of that nature in this place. Injuries to riijhts of propei'tif — Slander of title. — If lands or chattels are about to be sold by auction, and a man declares in the auction-room, or elsewhere, that the vendor's title is defective, that the lands are mortgaged, or that the chattels are stolen property, and so deters people from buying, or causes th^ property to be sold for a less price than it would otlierwise ha'' e realized, this is a slander upon tho title of tho owner, and gives him a prima facie claim for compensation in damages (/). "An action for slander of title," observes Tindal, C. J., " is not properly an action for words spoken, or for a libel written and published, but an action on the case for special damage, sustained by reason of the speaking or publication of the slander of the plaintiff's title. It is ranged under that division of actions in tho Digests, and by other writers on the text law." The plaintiff, in order to sustain the action, must prove iipccial damage resulting from the slander. Where, therefore, a shareholder in a mining company complained of a I 8 (/•) rnupotiH V. ritUjM/tn, lo c. b. 85. J)ue V. Itobtyls, 2 B. A: Aid. 307. (/) (iirard v. JJic/iCHsuii, 4 Kt'p. 18 a. Cfo, Eliz. 196. OkUoIv v. Mathers, 1 M. & W. 501. Wnn v. Unid, L. R., 4 Q. B. 730; 38 L. J., Q. B. 327. Baikif V. Jkaii, 5 Biirb. (N. Y.) 297; In re MmHsoh Are. Jlupti-t Church, 20 Hu'W'. IV. (N. Y.) 72. uf coiiiMe, 'a\ onler to operate an a Hlander of title, t!te Bttttoment inu«t be fidse, for if tho title is affected with the iufinnity sug- gested, there is no aetioiiablo slauder, however malieious tho motive may have been whioli actuated it : Orijthii v. /■« Jt/iiiie, VI La An 5 ; 7/(7/ v, U'trtf, uiite. Therefore, the burden ih upon tJie i)lain- tift' to prove, not only the speaking of the words, but also their falsity, and the special damage resulting therefrom : h'rndti/l v. Uto/ie, ante ; LH': v. MeKin- istrij, ante. 26G INJUKIES TO KIGIITS OF rROPERTY. [cHAP. VIII. 259 paragraph in a newspaper, asserting that a bill had been filed in Chancery invalidating his title to his shares, Avhereby ho was injured in his riglits and his shares were depreciated in the market, and he was prevented from selling them, it Avas lickl that this was not such an allogation of special damage as the law required in such actions, and that the necessity for an allegation of sjiecial damage does not in anywise depend upon the medium through which the slander is disseminated ; that is, Avhother it is througli words, or writing, or print (m). " To support tlio action," observes Parke, 13., "it ought to bo shown that the false statement was made 7)i((l(i fido, and that the special damage ensues therefrom. If some portions of the statement are bona fide, the injured party cannot recover, unless he can distinctly trace tlio damage as resulting from that part which is mala fide " (//). To enable a party, moreover, to maintain an action for slander of title, the words spoken must go to defeat the plaintiff's title. If the words are spoken by a stranger who has no right or business to interfere, he is responsible in damages if he cannot show the truth of his assertion ; but, if he is himself interested in the matter, and announces the defect of title bona fide, either for the purpose of protecting his own interest or preventing the commission of a fraud, the plaintiff must show that there was no reasonable or probable ground for the statement (o). If the alleged slanderer of title is himself interested, or has fair and reasonable ground for believing himself to be interested, in the sale or disposition of the property the title to which is alleged to be slandered, and has acted bomX fide, though under the influence of prejudice or misconception, he is not responsible ii; damages, unless it is shown that he must have known that there was not the slightest pretence for his interference. *' The bo))a fides of the communication," observes Lord EUenborough, " and not whetlier a man of rational understanding would have made it, is the question to be canvassed" (jj). In an action for slandering the plaintiff 'r. title to a patent, therefore, it is not sufficient to show that the defendant wrote to peivv>rs m negotiation witli the plaintiff for the purchase cf ]^>f'B;.ned anJcu ^ from him, stating that such aiticles wer-i an irui,' j_ '7>ie: .1 ci a patent of his, the {in) Mnlachy v. Soper, 3 iiing. N. C. 871 ; 3 Sc. 737. («) Siovk V. Eau!, . Excli. 52 1. Tho •words mast not only have been spok:n mul'oiouMly, but ni>8t also liavo resulted, in a (^.ircct i:ic^ J.tfu'at the plaiiitilV's title : Jiijus V. 7 .1,.'. . tiii/i: ; and preventing a person froiL) riiiiing money upon i: mortga/^'o hill' bcca held si)f':>icnt spoeiitl dauiiige: Linden v. (jrn)i<'h., tiute. (w) Kanji'in v. Lc llrr!f»i, 4 Burr. 2l'2;i. k^mi'.h v. SpnoiKr, '.> ')V. aut. 2.");!. Stcuard v. iuiiiii;, L. 11., o C. P. 122 ; 39 L. S., V. r. 85. {p) I'il' V. Doiioian, 1 M. k S. 018. SECT. I.] RIGHTS OF rROl'KKTY OKNERALLY. 2 07 defendant's, and that he should claim royalties from tliem, if the defendant really had an existing patent for somewhat similar articles, and no evidence of mala Jidcn is given {q). But threats of 260 legal proooodings arc not justifiahle, whore they are made maid fide, and there is no bond fide incentif)n of following up the tlireats by taking proceedings. Thus a patentee is not entitled to publish statements of his intention to institute legal proceedings, in order to deter persons from purchasing alleged infringements of his patent, if lie has no baud fidr intention of following up his threats by taking sucli proceedings (r). "Slander of title," observes Maule, J., "ordinarily means a statement of something tending to cut down the extent of title, which is injurious only if it is false. It is ess^jutial to give a causo of action that the statement should be false. It is essential also that it should be malicious ; not, as Lord Ellenborough observes, malicious in the worst sense, but with intent to injure the plaintiff. If the statement is true — if there really is the infirmity of title that is suggested — no action will lie, however malicious the defen- dant's intention may bo. The jury may infer malice from the absence of probable cause ; but they are not bound to do so. The want of probable cause does not necessarily lead to an inference of malice; neither does the existence of probable cause afford any answer to the action" (s). Where a defendant, knowing that there had been no agreement between him and the plaintiff for a lien on the plaintiff's goods, lalsely pretended that he was entitled to a lien on them, .nd made the representation without any reasonable foundation for it, and from improper and ma.icious motives, and damage resulted therefrom to the plaintiff, it was hold that the defendant was bound to make compensation to the plaintiff for the wrong done to him (/). SECTION II. INJURIES TO RIGHTS OF PROPERTY IN LAND. .Rights o/propcrfi/ in land {jenerally. — Rights to land form the mosl important branch of the rights of property, and differ in many respects from other rights of property having a corporeal object. " Land, which is immovable and indestructible, is evi- dently a different species of property from a cow or a sheep, which i'l) Wren V. Weild, L. R., 4 Q. B. 730; 38 L. J., Q. r.. 327. lliilxfi/ v. lirothfr- hood, 15 Cli. D. 514 ; 49 L. J., Ch. 7«G. (»•) ItoUins V. Iliiiki, L. R., la Eq. 355; 41 L. J., Ch. 368. Auminn v. Lund, L. R., 18 Eq. 330; 43 L. J., Ch. 655. (a) rater v. Baker, 3 C. B. 868. (<) Green v. Mutton, 2 C. M. v'c R. 710. t \^w 208 IN.TURIKS TO KIOFITS OF PROPERTY. [CIIAP. VIII. P I I m i 261 mny l»o stolfn, killed, nnd eat on, or from a chair or a table, wliicli may bo broken up or burnt. No man, be lie over so feloniously disposed, can run away with an acre of land. The owner may be ejected ; but the land remains where it was : and ho who has been wrongfully turned out of possession may bo reiuftatod in the identical portion of land from which ho has boon removed " (u). The highest riMit to land known to the law is that of the /•enant ir f . ^iM ij' in possession, Avho is entitled to use and enjoy "Valand ' ii " /i tvhich is not inconsistent with the rights of ;^e pul^" ,-^v -liih' r A adjoining landowners, as those rights are Jofinod .iUu 1 -rv;! i .' by the law. The tenant in foe simple may alienate Uh iiji'ts either wholly or partially during his lifetime, and at ' ■ 1 ^.th ' ay by his will designate, within certain limits, tiio pers. J ■ Ii are to euccccd to the rights which ho has not disposed of w' « living. The ownership of the land carries with it everything both above and below tlio surface, according to the maxim of our law, oijin^ rsf m/iini, cjiix est usque w] avium. Title and seisin may bo proved by proof of the pernancy of the rents and profits of land, and of the exercise of acts of ownership over land ; and the exercise of acts of ownershii) may bo established by the production of expired and ancient letises, or counterparts of leases, executed by deceased persons or their deceased lessees (/) : and. declarations of deceased occupiers of land, as to the parties under whom they held, an; admissible in evidence to show who was the owner of Ijic iiiju'ritanco in their timof//). Entries by a deceased agent of the plainfifF charging himself wilh llic receipt of money as ri'ilt (ire admissible for the same jmrpose, nllhoiigli llli' (|efi'||(|(ifi( does not claim through the tierxon -o proved to have |i(lld rejJt (:;). itiijhh uf propevtii in /dliif /jrguinitioii of fif/c hi/ orcupaiioti. — l\issos6Joi) Is pvim(\ fucii' evldeilee of a seisin in fee, and is good against all tlie world excepi I lie person who can show a better till(!. h person who has a title by occupation only may devise his Interest i and the devisee will have a good title against every one lull Iho truG own(U', and may maintain an ejectment against a person who has entered upon the land, and cannot show title or l>o66e88ion in any one prior to the testator {a). Occupation, if Ciintinued for a suthciently long time, would formerly by prescrip- tion, and will now under the Statutes of Limitation, confer a good title «'ven {igainsl the true owner. A title by prescription may bo {») Williain-'s Prinniples of tho Law of Real Pnipi 'ty, p. 1. (x) !>m V. J'lifiimii, 3 Q. B. (V2J. And sec, Its to Ifiiid-fax ii»ti, V. C. GO, ()8. lu tills couutry a titli- ciimiot 1)0 iicqiiirt'd by lulverNO pcjssoH.siou ; see Wood on Limitation of Actiouis, p. 498. (f) The 3 & 4\Vni. 4, c. '27, amUhe37 & 3S Vict. c. •')7. (rf) 37 & 3S Vict. c. .07, s. 1. (<■) Istof Juu. I87y. (./') Under the former Aet (3 & 4 Wm. 4, c. 21), tho time wan twenty yvars. ((/) Urassiiiyton v. Lleuctlyii, 27 L. J., E.\. 297. (h) 3 & 4 Win. 4, c. 27, s. 3. (i) CKlhi/ V. TuyUinuii, H Ad. & E. 1008. ■J \ If 270 INJURIES TO RiaHT8 OV rROPERTY. [CIIAP. VIII. kl 263 surface to A, and (ho minerals and a right of entry to got tliom to Ji, tho title and right of entry of Ji and those claiming under him are not barred hy simple non-user for more than forty years, no other person having worked or been in possession of tho mines (/.•). Title hy occupation — Poor vclationa or scrrfdifx. — A landowner who accommodates a poor relation with a cottage and garden, does not necessarily part with the i>os.session of tho property occupied by such poor relation. Tho latter may have the mere custody of the property ; his possession, such as it is, may bo the possession of the landowner : and the latter may retain and continue to exercise his proprietary and possessory rights, so as to rebut tho pre- sumption that ho has parted with the possession f)f tho property, and prevent tho operation of tho Statute of Limitations (/). If a landowner allows his gardener, or servant, or workman employed upon his estate, to live in a cottage thereon rent-free, the possession of the servant is tho possession of the master, and the servant has no greater interest in the land than a coachman who occupies part of his master's coach-house, or sleeps over his master's stables ; ond no title can be gained by such an occupation and enjoyment of the master's projierty, however long it may be continued. A society, also, wliich allows its agent to live on its premises rent- free, does not confer any estate or interest in the land upon the latter, but the occupation is merely the occupation of a servant (/»). Title hy occupation — Tcnanf-af-will. — When any person is in possession or receipt of tlie profits of land or rent as tenant-at-will, the right of tho person entitled subjf'ct thereto, or of the person through whom he claims, to make an entry or distress, or bring an action to recover such land or rent, is to be deemed to liavo first accrued either at the determination of such tenancy or at tho expiration of one year next after the commencement thereof, at which time such tenancy shall be deemed to have determined (n) ; BO that at the ond of twenty-ono years from tho commencement of the tenancy, the right of tlio landlord will bo determined (o). But it is provided that no mortgagor or ceslid que triid sball bo deemed to be a tenant-at-will to his mortgagee or trustee within the meaning of that clause {j}). This proviso is applicable only k [k] Smith V. Lloyd, 9 ExcJi. 571; 23 L. J., Ex. 194. And see M'Jioiiiiell v. M'Khitii, 10 Irish Law Rep. 510. (/) Iteitie V. llraiiiiioiit, 16 East, 33. Ifunt V. Colmi, 3 M. & Ho. 791. Doc v. Stantun, 2 B. & Aid. 371. Mtii/hcw v. Buttle, 4 El. & Bl. 363. Turner v. Doe, OM. & W. 645. (w) White V. liaileii, 10 C. B., N. S. 227 ; 30 L. J., C. P. 253. (/I) 3 & 4 Wm. 4, c. 27, 8. 7. Doe v. Mimvc, 9 Q. B. 561. M Day v. Day, L. R., 3 P. C. 751 ; 40 L. J., P. C. 35. (y.) Thorp v. Facey, 35 L. J., C. P. W). I SECT. II.] RIGHTS OF PllOPKRTV IN LAND. 271 264 to cases of actual, direct trusts (q) ; so tliat a person lot into possession of and holding lands under an agreement to purchase, is not a cesfid que tntnt within this proviso (r). A cv>itiii quo tnixt may, in a certain sense, ho tenant-at-will to his trustee, if ho has heen let into possession of the trust estate by the latter, although ho is not a tonant-at-will capable of acquiring a title by reason of liis possession, within the tliird section of the statute. Tho posses- sion of the ccntui que truxt 1 , in fact, tho possession of tho trustee; and the time of limitation will not run against tho latter, so long as tho relationship of trustee and cestui que tntst subsists (.v). But this applies only to the case where tho eesfiii que trust is tho actual occupant. If he is merely allowed to receive the rents or other- wise deal with tho estate in tho hands of tho occupying tenants, he stands in tho relation only of an agent or bailiff of the trustees, who choose to allow him to act for them in the management of the estate ; and, if the actual occupier is, under such circumstances, permitted to occupy for more than the twelve years prescribed by the statute, without paying rent, tho trustees lose their title, and tlie actual occupier gains the title, exactly as in an ordinary case of landlord and tenant {t). But, if the cestui que trust has been let into possession by the trustees, the tenancy between him and his trustees will not be determined by his underletting the premises, unless the trustees have notice of such underletting ; for, though the general rule is that a tenaney-at-will is not assignable, because the transfer determines the tenancy, yet the rule is subject to the qualification that a tenant-at-will cannot at common law determine his tenancy by transferring his interest to a third party, without notice to his landlord («). Where there is an occupation under a voidable lease, tho statute begins to run from the earliest time at which the lease can be avoided, and not from the time when the lessor actually elects to avoid it (.<■). Title ly occupation — Tennnts from year to year. — When any person is in possession or receipt of the profits of any land or rent, as tenant from year to year, or other period, without any lease in writing, iho right of the person entitled subject thereto, or of the person through whom he claims, is to be deemed to have first accrued at the determination of the first of such years or other periods, or at the last time when any rent, payable in respect of {q) I)nimmoiid v. Snnt, L. II., 6 Q. B. 763; 41 L. J.,Q. B. 21. (;•) J)oe\. Ruck, 1 M. & G. 31. (»■) Garrm-d v. Turk, 8 C. B. 252 ; 18 L. J., C. P. 338. Drummoiid v. Sunt, supra. (I.) Melling v. Leak, 10 C. B. C69 ; 21 L. J., C. P. 187. J)oe V. l'hillij)i, 10 Q. B. 134. (u) Carpenter v. Collins, Tolv. 73. I'inhorn v. Sousfer, 8 Exch. 7G3. Mel- linij V. Leak, supra. [x] Governors of Magdalen HoipUal v. Knott, 8 Ch. D. 709; 47 L. J., Ch. 726. pa Mil llll^piv I ^ii|,aii|ip). A landlord is entitled at tho determination of tho tenancy to recover from tho tenant, not only tho land orip;inally demised, but also any land which tho tenant may have added to it by encroach- ment from the waste, 8U(!h encroachment being doomed to havo been made by him as tenant as an addition to his holding, and consoqtiently for tho benefit of his landloid, uidess it is made under circumstances which show an intention to hold it for his own benefit alone, and not as part of his holding under the land- lord ((-'). This rule is not confined to cases whore tho encroachment is upon land to which tho landlord is entitled, but applies to cases whore tho land encroached upon does not belong to tho landlord. It is hold in such cases that, as between tho landlord md the tenant, the tenant must priiiiu facie be deemed to havo taken in the additional land as part of his tenancy and for the benefit of his landlord ('/). It is not necessary that the encroachment slioidd be conterminous with the holding ; it is enough, if it is so near that by nature of its nearness tho tenant gained tho opportunity of making it (^), nor is it material whether the encroachment was made with the consent of the landlord or not. In either case the Statute of Limitations does not begin to run until the termination of the tenancy ((^/), But one who occupies, aa his ov*n, land belonging to another, and, before he has acquired a titk by the Statutes of Limitation, becomes tenant to the latter of land adjacent to the land so occupied, does not thereby change the character of his possession, but can, whilst he remains tenant, acquire, as against his landlord, a prescriptive title to the land first occupied by him (./'). Title hy occupation — Wrongful receipt of rent. — It is also enacted s ■ 1 ; 1 i 1 \ L ■■••k (i/) 3 & 4 Wm. 4, c. 27, s. 8. (;) Doc V. Boihain, 7 Q. B. 982. I)oe V. BiUett, ib. 983. Doe v. Jliude, 2 M. &Rob. 441. (a) Doe V. Goiier, 17 Q. B. 589; 21 L. J., Q. B. 57. (A) Doe V. liecMt, 4 Q. B. 605 ; L. J., Q. B. 236. 12 ((') TJliitmore v. Ilnmphrlcs, L. R., 7 C. r. 1; 41 L. J., C. P. 43. id) jr/iitiiiore v. Hiimplincii, L. R., 7 C. P. 1 ; 41 L. J., C. P. 43. Atlonieu- General v. Tumline, 6 Ch. D. 760; 46 L. J., Ch. 654. ((■) Lishiifne, Earl of \. Davies, L. R., 1 C. P. 259 ; 35 L. J., C. P. 193. (/) Dixon V. Ball/, L. R., 1 Ex. 259. '" i*.'""'f '«««ppilpifpaiupsi.i«lM. ;t 8r:cT. if,] lurjiiTs of pfiorKiMY in land. 27.'} I f 266 that, whon any person shall bo in possession or receipt of tho profits of any land, or in recoi[»t of any rent, l»y virtue of a loaso in writing' by wbicli a rent of 20.v. or npwards shall bo rcHorv»'(l, and tho rent shall havo boon rucfivod by somo person wrongfully elain.ing to bo ontiili.d to Miioh land or rent in reversion innncdi- ately cxpoflanl n the determination of suoh lease, and no payment in respect of tho rent reserved by sucli loaso shall afterwards havo been nuido to the person rightfully out il led thereto, the right of the person entitled to such land or rent, subjoet to such lease, or of tlio person through whom ho claims, to make an entry or distress, or bring an action, after tho detorrainatinn of such lease, shall bo deemed to havo first acc^rued at tho tim at wliicli tho rent was first so received by tho person wrongfully claiming ; and no sucli right shall bo deemed to have first accrued upon tho determina- tion of such lease to tho person rightfully entitled {[/). Tho Avord "wrongfully" in this section means "without any title," not wrongfully in tho sense of an improper intention to deprive others of their property. AVhere, therefore, the person really entitled to an estate is in possession but as agent for another, to whom ho, under a mistake, accounts for tho rents, ho has no right of entry without giving up his agency ; tho person in receipt of the rents, therefore, may Require a title by long possession as against him (/i). Tifk hi/ occupation — Fosscsnion of a coparcener, joint-tenant, or tenant-in-coninion. — When any one or more of several persons entitled to any land or rent as co-parceners, joint-tenants, or tenants-in-common, shall have been in possession or receipt of tho entirety, or more than his or their undivided share, for his or their own benefit, or for the benefit of any person other than the persona entitled to tho other shares of the land or rent, such possession or recei])t is not to be deemed to have been the possession or receipt of or by such last-mentioned persons, or any of them (/). Title hi/ occupation — Possession of a i/oungcr hrother or relation. — When a younger brother or other relation of a person entitled as heir to the possession or receipt of the profits of land, or to tho receipt of rent, enters into the possession or receipt thereof, such possession or receipt is not to be deemed to be the possession or receipt of the heir (A). Title hij occupation — Bond fide jmrchascrs of trust estates. — When any land is vested in a trustee upon any express trust, the right of the cestui que trust, or any person claiming through him, to bring a suit against the trustee, or any person claiming through him, to { XS^'V^'^ 23 WEST MAIN STREET WBtSTBR,N.Y. 14SM (716) 172-4303 •■':*' ;i'i I M ft \ t ; x-f ^ 280 INJURIES TO KIGIITS OF PKOrEKTY. [ciIAP. VIII. -•il :l 273 and the proprietor on tlie banks of the natural stream will have no right of action for the diversion of that water (r). So, con- versely, where a canal company has for many years diverted water from a stream above the plaintiff's land, and has subsequently restored it, the plaintiff cannot complain of damage resulting from a flood caused by such restoration (s). In the case of casual and intermittent surface waters not running in any defined channel, but spreading themselves over the surface of the land, there is nothing to prevent the landowner from dealing with them as he pleases (i); but he must not divert the perennial supply of water from a spring-head, or prevent it from flowing by a natural channel to the lands below (»). He has no right by any system of artificial drninage to cut off the natural, visible supply of surface-water from ancient water-courses uud rivulets ; and he ought so to arrange his drains as to restore the water at the boundary of his estate to its ancient channels, that the lands situate on a lower level may not be deprived of their natiu-al supply of the precious element; for a man has no right to make improvements on his land which produce injury to his neighbour {x). Whenever a spring rises from the ground in one man's land, and flows therefrom into another's land, and the supply of water from the spring is constant, the court will prevent a landowner through whose land the water flows, from cutting off the supply of water to the land lower down, although the spring may flow through boggy land, and not follow any defined channel or water- course ; but, if the supply is casual and intermittent, and depen- dent upon the rainfall, and is mere common surface-water, the court will not interfere (//). ■.: ()■) JFvod V. JfuKd, 3 Exch. 779 ; 18 L. J., Ex. 3U. («) Mason V. ShrcivshKrij and Hereford Hail. Co., L. R., 6 Q. B. 578 ; 40 L. J., Q. B. 293. {!) Jiroadbent X . Ramshotham, 11 Exch. 617; 25 L. J., Ex. 115. («) Eniior V. Baricell, ?. Giff. 4. i. Urouii V. Best, 1 Wils. 174. Diidden v. Guardians of Clutton Union, 1 H. Ac N. C27 ; 26 L. J., Ex. 146. (x) Britroe v. Drought, 11 Ir. C. L. R. 250. Hilliard on Torts, p. 105 et scq. By tho French law, the proprietor of a field in which a spring rises or through which it flows, is not entitled to take and appropriate to his own use the whole of the water, or divert it from other pro- prietors of lower fields through which the water flows. He cannot change tho course of the stream, or materially diminish the ancient supply of water; but every proprietor of land bordering on a running stream may use it for the purpose of irrigating his land, and, when his estate is intersected by such water, he may divert it for purposes of irrigation, on condition that he restores it at the boundary of his property to its ordinary channel ; and in all disputes respecting tho right to take water from running streams, tho courts are enjoined to recdiicilo as much as pos.siblo the in- terests of agriculture with the respect due to property and tho rights of in- dividuals. Cod. Nap. liv. 2, No. 640— 645. [y) Ennor v. liartccll, 2 Giff. 424. Itobinaon v. Lord Byron, 1 Bro. C. C. 588. Holkcr V. Poritt, L. R., 8 Ex. 107 ; 10 Ex. 69 ; 44 L. J., Ex. 52. The rule may bo said to be, that no prescriptive right can be acquired to water that squanders itself over tho surface of the ground, even though in tho natural course of things it would flow upon the land of another, or even though, during a con- siderable portion of the year each sea- son, it flows thus, it having acquired no definite channel, and being subject to the ever varying fluctuations of the season, and arising only from falling SECT. II.] KI0HT8 OF PROPERTY IN LAND. 281 A right to the use and enjoyment of a natural water-course 274 and water is not affected by reason of the supply of water being uncertain and precarious, and dependent upon the dryness or humidity of the season. The intervention of a single dry season, or of a series of dry seasons, cutting off all the ^vator for a shorter or a longer period, cannot deprive a person of his right to the water when it re-appears again in its ancient channel. Where a natural stream, which had its rise in land of the defendant, whence it flowed by an underground channel to a lane dividing the defen- dant's land from the plaintiff's, meandered a little way down the lane before it entered the plaintiff's land, and the plaintiff slightly varied the ancient channel, by making a straight cut across the lane from the spout under the defendant's hedge to his own pre- mises, it was hold tliat his right to the water was not affected by so slight an alteration of the natural channel (z). Where a man is entitled to have a stream of water flowing through his land, he may maintain an action for the diversion or pollution of the water, although he has not used, and does not want to use, the water (a). Natural sen'ifiides — Water — Rigid of drainage (b). — Lands through which a natural stream flows are burthoned with the servitude of receiving and transmitting the waters of the stream to the lower land (c). Land, moreover, cannot be cultivated or enjoyed, unless the springs which rise on the surface and the rains that fall thereon are allowed to make their escape through the adjoining and neighbouring lands. All lands, therefore, are of rains or the melting of snow : Ashlei/ v. If'olcott, 11 Cush. (Mass.) 192; Oooilale V. Tuttle, 29 N. Y. 459. But where a natural stream of water that is not the result of spasmodic causes, runs in a deiinito channel for a distance so as to acquire the legal character and attributes of a watercourse, suddenly departs from all limits and spreads itself over a wide tract, and, after passing thus for a distance, again assumes a definite chan- nel, this is such a watercourse as gives to all persons below the right to have the water go to them, and therefore a right of action for any unreasonable diversion thereof : Macomber v. Godfrey, 108 Mass. 219 ; Gillctt v. Johnson, 30 Conn. 180. See Wood on Nuisances, Chap. X. on Surface Waters. (z) Hall V. Swift, 4 Bing. N. C. 381 ; 1 Sc. 169. Dig. lib. 8, tit. 3, 1. 3.5. (a) Embreij v. Uwen, 6 Exch. 333 ; 20 L. J., Ex. 212. Rochdale Cannl Co. v. King, 14 Q. B. 135. Webb v. Foittaiid Manufacturing Co., 3 Sumner's Amer. Rep. 197. Bower v. Hill, 1 Bing. N. C. 649 ; 1 Scott, 535 ; ante, p. 39. Ciosslcy V. Lightowler, post, p. 275. {b) Aa to rights of drainage under tublic Health Act, see 33 & 39 Vict. c. 65, as. 13 — 26, and as to pollution of water, ss. 68—70. {(■) In the Roman law, we find that every proprietor of land is enjoined to refrain from doing anything on his land to impede the natural flow of water from the high land to the land below, whilst the proprietor of the higher land is prohibited from sending, by means of artificial contrivances, larger quantities of water on to the lower land than would naturally flow there, or altering the course of streams and giving a new direction to the surface water, to the prejudice of the proprietor of the lower land. Pardessus, part 2, ch. i. s. 1, Obligations qui concernent lex eau.v. Dig. lib. 8, De Servitutibus. In the Code Napoleon, under the head of " Servitudes derived from the Situation of riaces," wo read, that "all lower lands are subjected, us regards those which are higher, to receive the waters which flow naturally therefrom, to which the hand of man has not contributed. The proprietor of the lower ground cannot raise a bank which shall prevent such flowing ; nor can the superior proprietor of the higher lands do anything to increase the servitude of the lower lands." Cod. Nap. No. 640—642, I \ \ \ X 2ft2 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. I; iliJ: , t necessity burtlioned with the servitude of receiving and discharging all waters which naturally flow down to them from lands on a higher level ; and, if the owner or occupier of the lower lands interposes artificial impediments in the way of the natural flow of the water through or across his lands, and by so doing causes the 276 higher lands to be flooded, he is responsible in damages for infringing the natural right of the possessor of such higher lands to the natural outfall and drainage of the soil, unless he has gained a right to pen back water by express grant, or undisputed enjoyment, in the manner presently pointed out {(I). So, if the proprietor of the higher lands alters the natural condition of his property, and collects the surface and rain-water together at the boundary of his estute, and pours it in a concentrated form and in unnatural quantities upon the land below, he will be responsible for all damage thereby caused to the possessor of the lower landb (e). A riparian proprietor cannot deteriorate the quality of the water which would otherwise descend, if by so doing he deprives another riparian proprietor of the beneficial use of the water, unless he has gained a title by grant or prescription so to use the water (/). Every riparian proprietor has a right to the flow of the stream through his land in its natural purity; and, if a riparian proprietor higher up the stream throws dirt and ashes or gas refuse into it, so as to defile the water and render it unfit for use, to the damage of another riparian proprietor who has been in the habit of using the water, an action is maintainable for the injury (g), unless an adverse right has become vested in the other by grant or prescription. It would seem that an action may be maintained without proving actual damage; for such pollution Avould, if allowed to continue, become a right (//). Naftiral scnihtdes — Water — Navigable rivers. — ^A riparian owner on a navigable river has, superadded to his riparian rights, the right of navigation over every part of the river ; and, on the other hand, his riparian rights are limited in this respect, that, whereas in a non-navigable river all the riparian owners might combine to divert, pollute, or diminish the stream, in a navigable river, the public right of navigation would intervene, and would prevent this being done. The soil of a navigable river may be the private property of the riparian owners ; but, even where the soil is in the Crown, the riparian owner has the right to have the river come to (d) Shunj V. Tiggot, 3 BuUtr. 340. Chaaemore v. Eichards, 7 H. L. C. 349 ; 29 L. J., Ex. 81. Dig. lib. 39, tit. 3. 1*081, p. 328. (e) Sharpe v. Hancock, 7 M. & G. 354 ; 8 So. N. R. 46. See Harrison v. Great Northern Bail. Co., 3 H. & 0. 231 ; 33 L. J., Ex. 267. Ante,Tp.U. . (/) Etnhrey v. Owen, 6 Exch. 370 ; 20 L. J., Ex. 212. Mason v. Hill, 6 B. & Ad. 13. Chnsemore v. Riehardu, 7 H. L. C. 349 ; 29 L. J., Ex. 81. Seo Wood on Nuisances, Chap. XIII. on Pollution of Waters. (ff) Murgatroyd ▼. JRobinson, 7 El. & Bl. 391 ; 26 L. J., Q. B. 233. (A) Crotsley v. Lightowler, L. R., 2 Ch. 478 ; 36 L. J., Ch. 584. SECT. II.] RIGHTS OP TROPERTY IN LAND. 283 him in its natural stnto, in flow, quantity, and quality, and to go from him without obstruction, just as ho is entitled to tlio support of his neighbour's soil for his own in its natural state (/). 276 The owner of a wharf on a river bank has, like every other subject of the realm, the right of navigating the river as one of tho public. This, however, is not a riglit coming to him qiid owner or occupier of any lands on the bank ; nor is it a right which, per hi; ho enjoys in a manner different from any other member of tho public. But, when tliis right of navigation is connected with on exclusive access to and from a particular wharf, it ceases to bo a right hold in common with tho rest of the public, for other members of the public have no access to or from tho river at the particular place ; and it becomes a form of enjoyment of tho land, and of the river in connection with the land, tho disturbance of which may bo vindicated in damages, or restrained by an injunction (/.). Natural neri-ifiidcs — JFafcr — 0/ (he right of hiiidowucrs to nrll- miter. — The right to the enjoyment of tho water of a stream flowing in its natural course over tlio surface of land, and the right to underground water and springs beneath the surface, are not governed by the same rules of law. It has been held that a landowner has a right to sink o well in his own land, and get as much water as he pleases, although he thereby seriously diminishes the supply of water to the springs and wells in his vicinity, or even drains them dry. The only remedy for the adjoining landowner consists in sinking deeper wells, and using pumps and mechanical appliances on his own land to enable him to get back the water (/). A landowner who has sunk a well on his own land, and thereby enjoyed the benefit of underground water, has no right of action sgainst a neighbouring proprietor who, in sinking for and getting coals from his soil in the usual and proper manner, causes the well to become dry ; and it makes no difference, whether the damage arises by the water percolating away, so that it ceases to flow along channels through which it previously found its way to tho spring or well, or whether, having found its way to the spring or well, it ceases to be retained there (m). The same rule prevails between the owner of the surface and the owner of the minerals («). debet habere ; si iion animo vieini noccndi. (i) Li/ou V. Fishmongm'' Co., L. R., 1 App. Cua. G62 ; 16 L. J., Ch. 68. See Wood on Nuisances, Chap. XIV. on Navigable Streams. (k) Lyon v. Fishmongers' Co., L. R., 1 App. Cas. 662; 46 L. J., Ch. 68. (/) Chasemore v. liichards, 7 H. L. C. 349; 29 L. J., Ex. 81. Iteg. v. Metro- poUtan Board, ijc, 3 B. & S. 710; 32 L. J., Q. B. 105. (»i) Acton V. lUimdeU, 12 M. & W. 324. So by the Pandects, " Cum co qui, in suo fodient, vieini fontem avertil, nihil posse agi ; ncc de dolo actionem ft sane non sed smtm agriim meliorem facicndi, id J)eit."—lAh. 39, tit. 3, 1. 12. Domat, Liv. 2, tit. 8, s. 1. Chatjield v. Wilson, 28 Vt. 49 ; Wheatly v. Bough, 25 Tenn. St. 528 ; Bliss v. Greeley, 4o N. Y. 671 ; Frazier v. Broun, 12 Ohio St. 294 ; Roath V. l)riscoU, 20 Conn. 533 ; Chase v. SUccrstone, 62 Me. 175. See Wood on Nuisances, p. 120, n. 1. («) Ballacorkish Silver, Lead, and Copper Mining Co. v. Harrison, L. E.. 6 P. C. 49 ; 43 L. J., P. C. 19. S f f I It L>Hi IN.IUKIKH TO JJIGHTS OF rilOl'EKTY. [criAP. VIK. ■) 'i ■fir' Tlie right to iiso and consume the water from wellB is not confined to the rcnsonablo wants of tlie oooupior of the lands in wliieh the well is sunk, nor restrained hy any consideration for tlio wants nud necessities of others. Where the defendant sank a well 277 seventy-four feet in depth in his own land, adjoining the source of nil important rivor, whieli supplied water to various mills and manufactories, and pumped water from this well for the supply of a neighbouring town, at the rate of half-a-million of gallons a-day aiul upwards, and by this moans obviously interrui)ted a great deal of water which woiild have otherwise found its way into the rivor, and so diminished the volume of Avater in the river, and prevented the millowners from working their mills full time, it was held that the landowner had not exceeded his natural rights, and that the millowners had no remedy for the injury they had sustained (o). But a landowner will bo restrained from drawing off the subterranean water in the adjoining land, if in so doing ho draws off water which has once Howed in a defined surface channel through such land. "If you cannot get at the underground water without touching the water in a defined surface channel, you cannot get at it at all " {p). If a man, by sinking a pit, intercepts the percolations of under- ground water, which would have flowed to his neighbour's land, ho may still discharge it on such land, provided that ho does not affect that land in any way '^ther than that in which it had been affected before (q). Natural ncrvifudcs — liiff/tt of .support from adjoining lauds. — Every proprietor of land is entitled of common right to such an amount of lateral support from the adjoining land of his neigh- bour as is necessary to sustain his own land in its natural state, not weighted by walls or buildings (r). If the land has been weighted by superstructures, the landowner who has thus weighted his land is not entitled, ex Jure iiaturo', to the additional support from his neighbour's soil necessary for the maintenance of the buildings : for one landowner cannot, by altering the • ^ural condition of his land by erecting buildings thereon, deprive his neighbour of the privilege of using his land as he might have done before (.s). But, where the additional support required by the buildings has been enjoyed for twenty years, the owner will, in general, have (o) Chanemore v. Richards, ante, p. 276. The doctrine on tlio subject of Hubtcr- ranean water ia still iinHettled in the United States. See Hilliard on Tortn, 4th ed. p. 622. (jb) Grand Jiinrtion Canal Co. v. Shtiffar, L. R., 6 Ch. 483. (17) ireal Cumberland Iron if- Steel Co. V. Kent/on, 11 Ch. D. 782 ; 48 L. J., Ch. 793. ()•) iriimp/irien v. Brogden, 12 Q. B. 744. Solomon v. Vintnem' Compani/, 4 II. & N. 585 ; 28 L. J., Ex. 370. As to the power of a landowner to release this natural right of support, see Miirehie v. lilaek, 19 C. B., N. S. 190; 34 L. J., C. P. 337. Post, p. 280. See Wood on Nuisances, Chap. V. on Lateral and Subjacent Support of Lands. (,«) Wyatt V. Harrison, 3 B. k Ad. 875. rartridffcv. Seott, 3 M. & W. 220. SECT. ...] uiGiiTs OF riJOPKury in lanu. 285 } acquired tho right to tlio contiimoil enjoyment of such additional support (/). 278 Tho right to support of land and tho right to support of building.s stand upon different footings as to tho mode of acquiring them, tho former being prima /tide a right of property analogous to the How of a natural river, or of air, though there may ho cares in wliioh it would bo sustained as matter of grant {>() ; whilst tho latter must bo founded upon pre3('rii)ti()n or jrant, express or implied ; but the character of tho right, when acquired, is in each case the same (x). This riglit to lateral support is not an absolute right ; and the infringement of it is not a cause of action without apj)reciablo damage. Tlioreforo, where A dug a well near B's land, which sank in consequence, and a building erected on it within twenty years fell, and it was proved that, if tho building had not been on iy's land, tho land would still have sunk, but the damage to Ji would have been inappreciable, it was held that Ji had no right of action against yi (//). A right of support fror he adjoining land will be implied where land has been granted for the purposes of building (c). In an old case in Rolle's " Abridgement," it is said that, " if A be seised in fee of copyhold land closely adjoining tho land of JJ, and yi erect a new house upon his copyhold land, and any part of his house is erected on tho confines of his land adjoining tho land of /?, if Ji afterwards dig his laud so near to the foundation of the house of A, but not in tha land of A, that by it the foun- dation of the messuage, and the messuage itself, fall into the pit, still no action lies by A against Ji, inasmuch as it was the fault of A himself that he built his house so near the land of Ji ; for he cannot by his own act prevent Ji from making the best uso of his land that he can. But it seems, that a man who has land closely ad- joining my land, cannot dig his land so near mine that mine would fall into his pit ; and an action brought for such an act would lie " (a) . The support to which a landowner is entitled from the adja- cent land is confined to such an extent of adjacent land as in its natural, undisturbed state is sufficient to afford the requisite sup- port. Where between the land of the plaintiffs and that of the defendants there was such an extent of intermediate land as S 5 {() Dallun T. Angus, G App. Cas. 740; 50 L. J., Q. B. 089. la tho Roman law, under tho head of legal restrictions upon rights of property, wo find that no proprietor of land was per- mitted to excavate on his own land so as to endanger his neighbour's building ; but every man erecting a now building was bound to ^>Iaco the new structure a certain distance from his neighbour's boundary. (k) See Cukdonian Itnil. Co, v. Sprot, 2 Macq. 449. (.!•) Willes, J., Bonomi v. Backhouse, 1 E. B. & E. 655. The right to support of buildings by buildings arises from au implied grant or reservation. See post, p. 305. (y) Smith V. Thackerah, L. R., 1 C. P. 564 ; 35 L. J., C. P. 276. {z) Ru/hif V. Bennett, post, p. 305. («) V'ildy. .W«.v^pr/r//, 2RolI. Abr.5C5. 286 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. • : 4 a^ 1 :i:! would, if undisturbed, have auffioed to afford the requisite support 279 to the plaintiff's land, but the cool under such intermediate land had been worked out before by some liiird party, in consequence whereof, when the defendants worked the coal under theii own land, subsidence was caused in the surface of the plaintiff's land, it was held that the plaintiffs had no right of action against the defendants (b). An own3r of land has no right at common law to the support of subtoixanean water; and, therefore, one, who by draining his own land withdraws from an adjoining owner the support of water theretofore beneath the land of that owner, and thereby causes the surface of that land to subside, is not liable for the injury inflicted (e). If a mar digs a well on his own land so close to the soil of his neighbour as to require the support of a rib of clay or stone in his neighbour'r land to retain the water in the well, no action will he against the owner of the rib of clay or stone for di;;jging it away, and thereby letting out the water, unless a right to the support has been gained by iininten apted enjoyment for a suffi- cient period {d). Trannfei' of natural servitudes, — Natural servitu'^es derived from the situation of places are regarded as appurtenant to the lands for whose benefit they exist, so that they cannot be alienated from the land, and cannot be transferred from one person to another as benefits and privileges in gross. Being annexed to the land itself, the right t'^ exercise +hem passes Avith the land to every owner and possessor of the dominant tenement. A riparian proprietor cannot grant his right to the flow of water to a person who is not a riparian proprietoi, so as to give such grantee a right of action against a proprietor higher up the stream for the diversion or fouling of the water {c). And a riparian owner cannot, except as against himself, confer on any one who is not a riparian owner, any right to use the water of the stream ; and any user by a non-riparian owner, even imder such a grant, is wrongful, if it affects the flow of water by the lands of other riparian owners (/). But two adjoining riparian proprietor's may clearly agree to divide the stream into two channels in tl i land of the higher owner by making an artificial cut, by which the water reaches a mill situate on the land of the lower owner, and after turning the mill is then returned into the original channel {g). (i) Mayor, ^-c, of Birmingham v. Allen, 6 Ch. D. 284 ;" 46 L. J., Ch. 673 (c) Popphtvill V. llodkinson, L. R., 4 Ex. 248 ; 38 L. J., Ex. 126. {d) Tindal, C. J., Aclon v. Blundell, 12 M. & W. 353. Meg. v. Metropolitan Board, 3 B. & S. 710 ; :i2 L. J., Q. B. 105. bee post, p. 331. (') Stockport Waterworks Co. v. Potter, 3 H & C. 300. Jlolkery. Poritt, L. R., 10 Ex. 59; 44 L. J., Ex. 52. Ormerod V. Todmorden Mill Co., 11 Q. B. D. 155 ; 52 L. J., Q. B. 445. (/■) Ormerodv. Todmorden Mill Co., 11 Q. B. D. 156 ; 52 L. J., Q. B. 445. (jr) Nuttall V. Bracewell, L. R., 2 Ex. 1 ; 36 L. J., Ex. 1. SECT. II.] RIGHTS OP PROPERTY IN LAND. 287 280 Extinction of natural servitudes. — ^Natural servitudes may be extinguished by express contract. Thus, where a man sells a portion of his land or the whole of his land in several lots, he may by express stipulation deprive himself, or his vendee, as the case may be, of the right to lateral support from the adjoining land (A). But, where a man sold land adjoining his own, and the vendee covenanted by a separate deed that the vendor should not be liable for any subhidonce of tht land sold, created by the vendor working the mines under his own land adjoining, it was held that the vendor wa?, nevertheless, liable for such subsidence to persons who had purchased the land from the original vendee without any notice of the deed (i). Conventional servitudes. — The servitudes naturally incident to the ownership and occupation of land, and the legal restrictions upon the proprietary rights of landowners, may, within certain limits, be enlarged or extinguished by grant, and in certain cases by custom or prescription (/;). But "incidents of a novel kind cannot be devised and attached to property at the fancy or caprice of any owner. It is inconvenient to the public weal that such a latitude should be given. There can be no harm in allowing the fullest latitude to men in binding themselves and their representa- tives, that is, their assets, real and personal, to answer in damages for breach of their obligations ; but great detriment would arise, and much confusion of rights, if parties were allowed to invent new modes of holding and enjoying real property, and to impress upon their lands and tenements a peculiar character, which should follow them into all hands, however remote. Every close, every messuage, might ihus be held in a several fashion ; and it would hardly be possible to know what right the acquisition of any parcel of land conferred, or what obligations it imposed" (I). A grant to a man and his heirs of woods, underwoods, com^ (/») MiD-chie V. Black, 19 C. B., N. S. 190; 34 L. J., C. P. 337. (i) Richards \. Harper, L. R., 1 Ex. 199 ; 35 L. J., Ex. 130. In this case the land wtts copyhold, and the deed of cove- nant was not entered oa the court rolls ; but the court would it seems (diss. Pol- lock, C. B.) have decided in the same way had the land been freehold. (A) Fitth V. llawUng, 2 H. Bl. 394. (/) Ld. Brougham, Kcppel v. Bailey, 2 Myl. & K. 638. The Roman law dis- couraged thedi vision or ^lilution, amongst a number of separate ] roprietors, of the rights of ownership of an estate. The Romans framed their laws with the view of preserving the freedom of the right of property for all times and all future per- Bons. They provided that an estate should have, at one and the same time, only one domhim over it, and that his dominion should constantly remain as lilJc circumscribed as possible, and not be diminished by dividing his powers and prerogatives amongst several per- sons. "The onljr true restrictions on property recognized by the Roman lawyers were the servitudes." Mack- eldy's Civil Law, by Kaufman, bk. 1, ch. 4, § 293. By the French civil code, it is declared to be lawful for pro- prietors to establish over their estates, or in favour of their estates, such servi- tudes as seem good to them, provided th'' services established are not imposed cither on a person, or La favour of a person, but only en an estate, and for the benefit of aL estate. Cod. Civ. No. 686. 288 INJURIES TO RIGHTS OF PROPERTY. [cHAP. VIII. im III t ; i 5 ■ 1 ! P ,1 , ' 'i ■ i ; 3 ■ ) ■ 1 t I i i 281 and produce, which may hereafter grow on the land of the grantor (m), conveys to the grantee and his heirs a profit d prendre, exerciseable against the grantor and his heirs, so long as the ownership of the soil remains in them («) ; hut no specific property in anything vests in the grantee, until it has been severed from the inheritance, and reduced into possession (o). A grant of this description amounts to a mere personal contract, operative only between the immediate parties to it and their heirs, and does not bind tl\o land in the hands of persons to whom it may be subse- quently conveyed, and who were no parties to the deed of grant {p). There are cases, indeed, where the right to the future produce and profits of the soil exists as an assignable and inheritable inte- rest, burthening the land in the hands of subsequent purchasers : but these are cases where the relationship of landlord and tenant existed between the grantor and the grantee of the right, and the grant constitutes, or is accompanied by, a covenant which runs with the land, and is binding upon both the assignee of the rever- sion and the assignee of the term (5'). Thus, where a lessor granted and covenanted in a lease, that the lessee, his executors and assigns, should take and carry away such corn as should be growing upon the ground at the end of the term, and the lessor sold and conveyed away his reversion, and the executor of the lessee, having sown the corn, sold it, it was held that the property in the growing crop vested in the purchaser, who might enter upon the land and take it, for there was both a covenant and a grant, and the covenant ran witli the land, and bound both the assignee of the reversion and the assignee of the term (r). Such an interest running with the land, and binding the assignee of tho reversion and the assignee of the term, will pass under a general assignment of a lessee's " tenant-right " (s). There are also, as we shall presently see, certain rights of common in gross, and certain customary rights of sole and several pasturage, which exist in various manors as inheritable and trans- ferable estates; but these are rights vested in tho customary tenants of the manor, of depasturing cattle upon open uninclosed downs and moors and waste places belonging to the lord of the manor, and depend upon the custom of the manor, and cannot be (m) DcBcribed as "a fee simple in a profit A prendre,'* — "an odd sort of estate." Erie, C. J., 12 C. B., N. S. 103. («) Harrington'' s ease, 8 Co. 136b. (0) Holroyd v. Marshall, 10 H. L. C. 191 ; 33 L. J., Ch. 193. Lunn v. Thorn- ton, 1 C. B. 379. {p) Keppci V. Bailey, 2 Myl. & K. 535. Ld. Wensleydale, lioiclotham v. Wilson, 8 H. L. C. 369; 30 L. J., Q. B. 965. Malone v. Harris, 1 1 Ir. Ch. R. 39. (7) Addison on Contracts, bk. 5, eh. 4, sect. 1, sub-seot. 1, p. 1273, 8th ed. (r) Grantham \. Ilawley, Hob. 132. Martyn v. Williams, 1 H. & N. 827 ; 26 L. J., ■^x. 121. (.'.) Fetch V. Tutin, 15 M. & W. 116. tfmv^x^jmi imi(»w;hj'j«h)?(1'- SECT. II.] RIGHTS OF PROPERTY IN LAND. 28^ 282 relied upon as aiithorities for ascertaining the rights of persons in ordinary cases. It is a principle of law that no man shall derogate from his own grant (^). If, therefore, a man lias granted to another estovers, or a right to cut and carry away wood for burning, or a right to fish for his own use aud consumption, and he destroys all the wood out of which the estovers were to be taken, or draws all the water away from the pond or stream, and destroys the fish, the party grieved shall have his remedy by action ; for these are wilful acts of the grantor, and it is a misfeazance in him to annul or avoid his own grant (ii). But a landowner who has demised for a terra of years the right of shooting over his land is not thereby prevented from cutting timber as he thinks fit in the ordinary management of his land, although injurious to the shooting (x) . In accordance with the maxim, " QikiihIo a/iquis aliquid con- ccdit, conccikre ridctur et id, sine quo res conccssa iiti non potest^^ it has been held that by the grant of the use of a pump the grantee has a right to enter upon the grantor's land to repair the pump, although neither the soil nor the pump is granted to him ; and that, if a man grants me the right to lay pipes of lead in his land to convey water to my cistern, I may afterwards enter and dig the land to mend the pipes, though the soil belongs to another, and not to me (y). If one man grants to another the privilege or easement of making and maintaining a covered sewer or watercourse, of cer- tain specified dimensions, through the land of the grantor, for the purpose of carrying off v.'aste and refuse water from the land of the grantee, the grantor has ;o right to use the sewer, and pour water into it, without the licence and permission of the grantee (s). Acquired or conventional servitudes are either annexed to some land for t!ie more convenient enjoyment thereof, in which case they are said to be appurtenant (or, as in the case of certain rights of common, appendant), or they are independent of the enjoyment of any land, in which case they are said to be in gross. (<) Ellis V. Mayor of Byidgnorth, 15 C. B., N. S. 52 ; 32 L. J., C. P. 273. («) Twysden, J., romfret v. Ricrofl, 1 Saund. 322. (.r) Gearm v. Itaker, L. E., 10 Ch. 355 ; 44 L. J., Ch. 334. (jf) romfret v. lUcroft, 1 Saund. 322 e, 323. Liford's case, 11 Co. 52 a. By the French law, " he to -whom a servitudo is due has u right to form aU the works necessary to make use of and preserve the servitude. These works are at hia own expense, and not at that of the pro- prietor of the estate subjected to the servitude, unless the deed establishing the servitude declares the contrary." Cod. Civ. liv. 2, tit. 4, art. 697, 698. [z) Lees. Stevenson, El. Bl. & El. 612; 27 L. J., Q. B. 266. U 'r "ffw'' 290 INJURIES TO RIOnTS OP PROPERTY. [CRAP. VIII. !!! 283 Kimh of conventional seri'lfudeii. — Bracton, in his book of the laws and customs of England, cnuroeratos tho different acquired or conventional servitudes with which the estate of one proprietor may bo burthened for the benefit and convenience of another, such as rights of depasturing cattle ; rights of common ; rights of estover, or of cutting wood for burning in the dwelling-house, or for building, or repairs ; of cutting and carrying away turf ; of digging for and gathering minerals, stones or sand ; rights of hunting ; rights of way ; rights of drawing water from a neighbouring well ; rights of watercourse, or of a passage for water through another's land ; all of which servitudes, he tells us, were originally imposed upon land by the will, or ordering, or consent of the lord, or have grown up, and have become appurtenant to property, without having been expressly con- stituted, through long- continued, peaceable, and uninterrupted enjoyment. Acquired servitudes are divided into profits d prendre and easements. Conventional servitudes — Profits a prendre. — A profit d prendre is a right vested in one man of entering upon the land of another, and taking therefrom a profit of the soil. Such is the right of depasturing cattle on another's land ; the right to cut therefrom and carry away turf or wood for burning within the dwelling- house ; the right to dig for and carry away stone, slate, coal, and minerals; the right to shoot and sport over another's land, and carry away and consume the game killed ; or the right to fish in the waters of an estate or of a manor, and carry away and consume the fish taken. Conventional servitudes — Commons — Rights of common. — A right of common is either appendant, appurtenant, or in gross. When it is appendant or appurtenant to a messuage or land, it passes, by a grant of th? messuage or land, to the successive owners and occupiers thereof (a). Conventional se'dtudes — Commons. — Common appendant is a right annexed to arable land of depasturing on the lord's waste beasts that serve the plough, such as horses and oxen, or which manure the land, such as kine and sheep. This right exists at common law independently of any grant, prescription or custom, and applies equally to both freehold and copyhold tenants of a manor (b). "The reason for common appendant," observes Willes, C. J., "appears to be this, that, as the tenant would necessarily have occasion for cattle, not only to plough, but likewise to manure (a) Sacheverell v. Torter, 2 Roll. Abr. (ft) Warrick v. Queen's College, Oxford, 60, pi. 4 L. B., 6 Oh. 71G ; 40 L. J., Ch. 780. Ti;7"'''P''''l''*'l»"'~'''''''*T'f'^^ SECT. II.] RIGHTS OF PROPERTY IN LANH. 291 284 his own land, he must have some place to keep such cattle in whilst the corn is growing on his own arable land ; and, therefore, of common right, if the lord had any waste, he might put his cattle there, when they could not go on his own arable land. This right is so necessarily incident to the land, that it cannot be severed therefrom ; and, therefore, if the land is divided never so often, every little parcel is entitled to common appendant. But the tenant can only have the right of common for such cattle as are levant and couchant on his estate; that is, for such and so many as he has occasion for to plough and manure his land, in proportion to the quantity thereof ; and it is plain that he cannot have the right for cattle which he borrows, unless he makes use of them all the year to plough or manure his land" (c). Although this kind of common is regularly appendant only to arrble land, yet it may be claimed as appendant to a manor or farm containing pasture, meadow, and wood : for it shall be presimied to have been all originally arable land, though afterwards converted into meadow, pasture, &c. {d). The lord has rights of his own reserved upon the waste, not subservient to, but concurrent with, the rights of the commoners. He has a right to stock the common, and to every benefit to be derived from the soil not inconsistent with the rights of the com- moners (c). Thus the lord may take gravel, marl, loam, and the like, in the waste, so long as he does not infringe upon the com- moner's rights, his right to do so being quite independent of the right of approvement under the Statute of Merton or at common law, and existing by reason oi his ownership of the soil, subject only to the interest of the commoners (/). Moreover, when there is more common than is necessary for the cattle of the commoners, the lord may take the excess for his own pm-poses ((t). The lord, by his grant of common, gives everything accessorial to the enjoyment of the right, such as ingress, egress, &o., and thereby authorizes the commoner to remove every obstruction to his cattle grazing there. But the lord still remains owner of the soil; and a commoner who has a mere right of common of pasture has no power to meddle with the soil, and cannot cut even a trench or a ditch to let the water ofE the common, (f) Zf«i»e«v. iJme, Willes, 231. Biic. Abr. Common A. 1. (rf) Bac. Abr. Common A. 1. (e) Bayley, J., ArMt v. Ellis, 7 B. & C. 369. (/) Lord Kenyon, C. J., Bateson v. Green, 6 T. R. 416. Hall v. Bijroii, 4 Ch. D. 667 ; 46 L. J., Ch. 297. The onus of proving that thoir rights aro interfered with is on the tenants. Ibid. See also Robiusoti v. Ditkep Singh, H Ch. D. 798; 48 L. J., Ch. 768. («/) Bayley, J., Arlett v. Ellis, TB. & C. 369. The onus of proving this lies on the lord. Betts v. Thompson, L. R., 6 Ch. 732. 1)2 292 INJURIES TO RIGHTS OF TROPERTY. [citAP. VlII. -I 285 without first obtaining the licence of the lord (h) . If the lord chooses to encourage the growth of beasts of warren, such as hares and rabbits, upon the common, and to make rabbit-bur- rows, the commoner has no right to destroy either the hares, the rabbits, or the burrows. If they increase so us to destroy the herbage and deprive the commoners of the pastire, this may be a surcharge of the common by the lord ; but the commoner must pursue the appropriate remedy by action, and cannot lawfully kill the conies ; for, as long as they are in the lord's own land, the lord has property in them; but, when they go out, he has no longer property in them (/). Conventional servitudes — Commons. — Common appttrtenrtnt is a right, derived from the possession or occupation of land, of depas- turing a limited number of beasts upon the lord's waste, or upon the unenclosed land of an adjoining proprietor, and is claimable by grant or prescription (/.). The right is limited to boasts levant and couchant upon the land to which the right is appurtenant, so that a claim to a right of common appurtenant " sfiiis number" is bad. The number of cattle which can be "levant and couchant" upon the estate is the number which the produce of the land is capable of maintaining throughout the winter, if cultivated for that purpose ; it is not necessary that they should, in fact, have been actually so maintained, if the land, properly cultivated for that purpose, could have maintained them (/). " If my land, to which I claim common belonging can yield me stover to find a hundred cattle in winter, then shall I have common in summer for a hundred cattle in the land out of which I claim common ; and so for more or fewer proportionably" (ni). If the commoner has turned more cattle upon the common than the winter eatage of his ancient tenement, together Avith the hay and other produce obtained from it during the summer, is capable of maintaining, he has exceeded his legal rights, and is liable to an action (»). Conventional servitudes — Commons. — *' Common of s/iacl>," ob- serves Bayley, J., " is a right of persons occupying arable land unenclosed to turn out their cattle at certain seasons to feed promiscuously over the whole open field. If there were no common right of this sort, every man would be bound to keep his . (h) Cooper v. Marshall, 1 Burr. 226 ; 1 RoU. Abr. 406. (i) Hadesdenv. Gryasell, Cro. Jac. 195. Hcllew V. Langdon, Cro. Eliz. 876. Car- rill V. Pack, 2 Bulfltr. 115. Iloddesdon V. Gresil, Yelv. 104. (k) Cowlam v. Slack, 15 East, 107. (0 Carry. Lambert, L. R., 1 Ex. 168 ; 34 L. J., Ex. 66; 35 ib., 121. If the land had been built upon or turned into a reservoir, qtieere. S. C, Morley v. Clifford, 20 Ch. D. 763 ; 51 L. J., Ch. 687. A copyholder can only claim according to the custom of the manor. Ibid. (mi) Smith v. BoHsall, Golds. l±i. Cole V. Foxman, Noy's B. 30. Cheesman v. Bardham, 1 B. & Aid. 711. («) Tfhitelock v. Hutchinson, 2 Mood. & Rob. 205. SFX'T. il.] UI0IIT8 OF rUOPEUTY IN LAND. 21)3 286 cattle upon bis own land, which would bo productive of great inconvouienco, and in many instances would be impossible. In order to obviate this, every man's cattle are allowed the full range of the whole field ; but the number which each man is at liberty to turn out is limited to tlmt which the Innd of each individual is capable of supporting" (o). Coinriifioiial sern'ttidcs — Commons — Jiiy/it of common pur cause de vicinage. — Common j^'H' cause dc riciiuif/e is where the inhabit- ants of two townships which lie contiguous to each other have usually intercommoned with one another. The beasts of the one stray mutually into the other's fields without any molestation from either (p). If there are three vills, A, B, and C, each of which has a common, and vill li lies between A and C, vill B may inter- common either witli A or C, but A cannot intercommon with C. Neitlier party can put on the common more beasts than his own common will maintain, so that, if there is a vill with a large com- mon, and a vill with a small common, the owner of land in the vill with the small common cannot put on the entire common more beasts than the small common will maintain [q). This right is not a profit « prcmlrc, nor strictly an easement, but rather an excuse for a trespass, and has its origin from a presumed mutual grant or covenant between the owners of each farm that neither of them or his tenants should sue the other or his tenants, or distrain, or perhaps even drive their cattle away, so long as the farms should respectively lie open to each other (/•) . It can be put an end to by enclosure. To establish a right of common ^;»>' cause de vicinage, it must be proved that the inhabitants have usually intercommoned with one another : the beasts of the one straying into the other's fields without any molestation on either side. There must not only be absence of fence, but mutual acquiescence, and an immemorial allowance of the straying of the cattle (s). Conventional servitudes — Commons. — Common in gross is a right of common of pasture not appertaining to any land, and is claim'!- able by grant or prescription {t). In prescribing, therefore, for common in gross, " one does not lay seizin of any land, but says that he and his ancestors, whose heir he is, &e., from time whereof, &e., have had common in the place where, &c., for all their cattle, without relation to any land, and without saying levant and couchant, because there is no land on which they can (o) Checsman v. Ilardham, 1 B. & Aid. 711. Sir Miles Corbet's case, 7 Rep. 67. {p) Blackstone's Comra. p. 33. (y) Commissioners of Sewers v. Glasse, L. B., 19 Eq. 134 ; 44 L. J., Ch. 129. ((•) Jones V. Jiobin, 10 Q. B. 635, per Ld. Wensleydale. (.«) Clarke v. Tinker, 10 Q. B. 618. (<) Co. Litt. 122a. 1 r 8 I I jiE^l^'i Kv«r !ff'*f?-«'- tjAi£r-. fr fi 11 Xi'*' >*• '•*r"»'w*r'^^; WTT—ITT-'-'Tfflf^HllfT^lf WT'** |i -r II I-: :Mi 294 INJURIES TO KIGUTS OF rKOPEUTY. [ciIAP. VIII. 287 be levant and couohant, or to which tlio common can bo api)urtenant, wherefore a prescription for common in gross without number is good" («). Common in gross, being a personal privi- lege, and not a right appendant or appurtenant to land, cannot bo granted over so as to burthen the land for all time in the hands of subsequent owners and occupiers of the land over which the right has been granted (x) . Conventional scrvitmks — Profits a prendre — Rights of sole and separate pasturage. — If a man claims by prescription any manner of common in another man's land, and that the owner of the land shall be excluded to have pasture, estovei's, or the like, this is a prescription or custom against the law, to exclude the owner of the soil ; for it is against the nature of this word " common." But a man may prescribe or allege a custom to have and enjoy solam vesturam terrw, from such a day till such a day ; and hereby the owner of the soil shall be excluded for the time to pasture or feed there. So, a man may prescribe to have separalem piscariam in such a water; and the owner of the soil shall not fish there {{/). The customary tenants in whom these exclusive rights, exercise- able during certain portions of the year, are vested, have merely a profit d prendre in alieno solo, and no estate in the soil itself (s) ; but the interest is capable of transfer by deed of assignment. '* Instances of solo pasttirage are to be found on the South Downs, in Sussex; and they are frequently transferred in gross. It is the same with the cattle-gates in the north of England" (a). A "fold-course" is a common of pasture, and not a several right (b). In some manors, the customary tenants of the customary tene- ments of the manor have a right to the sole and several pasturage for the whole year over the moors and downs and waste places of the manor, to the entire exclusion of the lord of the manor, and may by deed license strangers to put in their cattle (c), and sell and convey away their interest to another. These rights of sole and several pasturage are called cattle-gates and cow-grasses, and are customary estates of inheritance, translerable by deed. The owners of them have no right of property in the soil. They are held of the lord of the manor, according to the custom of the manor, as customary estates of inheritance, by payment of fine and customary rents, and under dues, duties, suits, and services, regulated by the custom. They are transferred by customary (k) Mcllor Saund. 346. V. Spatcman, 1 Wms. {x) Treby, 0. J., Weekly v. Wildman, 1 Ld. Hajrm. 407. (y) Co. Litt. r22b. North v. Cox, 1 Lev. 263. («) It. V. Churchill, 4 B. & C. 750. (rt) Ld. Abinger, Welcome v. Upton, 6 M. & W. 536. (*) Hobinsonv. Luleep Singh, 11 Ch. D. 798 ; 48 L. J., Ch. 758. {e) Uoakins v. Hobins, 2 Wms. Saund. 323. ( 'K!9:!i:,ym'f 'ff !»(^ i»ra»»T»»-^!»B7W"^wr'»T»^Ti SECT. II.] IIIGHTH OF PUOPEUTY IN LAND. 295 288 doods, followed by admittance at the next lord's court, or out of court by the steward of the manor ; and a fine is payable on ad ittance. These cattle-gates, therefore, are copyhold tene- ments (d). Conventional scnifiidcs — Profits il prendre. — Common of txrhdri/, or the liberty or privilege of cutting and carrying away turf, is appendant to an ancient dwelling-house ; and the right is limited to such a quantity as is sufHcient to burn in the ancient chimneys and fire-places of the house (e). Consequently a claim to cut and carry away turf for sale (./'), or to make grass-plots or paths, cannot be supported (g). Conventional servitudes — Profits d prendre. — Common of estovers, or the liberty or privilege of cutting down and carrying away trees, or loppings of trees, shrubs, and underwood, in another man's woods, coppices, or forests, for bm-ning, building, or en- closing, is also appendant to an ancient dwelling-house, and is claimable by grant or by prescription, except in the case of copy- holders, who may, it seems, claim by custom (//) . Consequently a claim to cut down and carry away trees for sale cannot bo claimed as common appendant (/). The nature and extent of the right, and the periods of the year for the exercise and enjoyment of it, are to a great extent defined and controlled by manorial or local custom and usage. According to Bracton, the right must be exercised with reason and moderation, according to the size of the wood or waste in which the right is to be exercised and the size of the tenement to which it is annexed (k). The estovers must be expended within or upon the house, and cannot lawfully be sold or exchanged ; nor can the right be enlarged or extended. A tenant having a right to estovers for the repair of his dwelling-house and farm-buildings, cannot " enlarge his house with the timber, nor board the sides of a bam which had muddle walls or the like before " (/). If a man has estovers belonging to his house, and ho builds new chimneys where there were no chimneys before, he cannot use the estovers in the new chimneys («»). But, if he sets up a new chimney where an old one was before, he shall have his estovers for the new chimney («). "If a man be seised of a house in right of his wife, and another grants to the husband and his heirs to have sufficient ((/) Jliffff V. £arl Lonsdale, 1 H. & N. 935; 25 L. J., Ex. 81. («) 6 Co. 36b, 37a. Dean, ^c, of Ely V. Warren, 2 Atk. 189. (/) Valentine V. Penny, Noy's R. 145. (y) JFihon V. JFillei, 7 East, 121. (A) Bract, fol. 231. 8elbi/y. Robinson, 2 T. R. 758. (i) Bailey v. Stevens, 12 C. B., N. S. 113; 31 L. J., C. P. 226. ik) Bract, fol. 231. (/) Earl of Pembroke's ease, Clayt. 47. (m) LuttreWs case, A Co. 87a. (») Costard y. Winyjield, 2 Leon. 44. I ■5| ?i ii'M't IH INJURIES TO U1GHT8 01' I'KOPKRTV. [CHAl'. VIII. '?i IMI 11 |): 289 estovors to bum in tho samo house, in that caso the estovers are appurtenant to tho house, and shall descpnd to the issue of the hushnnd and wife. So, if one have a house of tho part of his mother, and one grants to him that he and his heirs shall have corapolont house-boto to be burnt in tho same house, this is appurtenant to tho house ; and, although it be a new purchase, it shall go with the house to tho heir of tho part of the mother" (o). If a man lias granted to another estovers, and destroys all the wood out of which the estovers were to be taken, tho party grieved flhall have his remedy by action ; for it is a misfeasance in the grantor to annul his o^vn grant (;)). Convpntioiifd senitiKfcs — Profits a pvemtrc — Right to dig for and carry mmy minerals. — Where the grant is of a liberty, licence, power, or authority to dig, work, mine, and search for, raise and carry away, metals and minerals in certain land, and dispose of the ore that should be there found to the use of the grantee and his heirs, and is not a grant or demise of all the ores, metals, or minerals then existing on the land, or existing within certain limits, so as to exclude the grantor himself from searching for minerals in his own land, or within the limits specified, it is nothing more than a grant of a licence (irrevocable on account of its carrying an interest), to search for and get ore, with a grant of such of the ore only as can bo found and got, the grantor parting with no estate or interest in the rest. In this case the grantee has no estate or property in the land itself, or any parti- cular portion thereof, or in any part of the ore, metals, or minerals ungot therein ; but he has a right of property only in such part thereof, as, upon the liberty granted to him, should be dug and got ; /. c, no more than a mere right to a personal chattel when obtained in pursuance of incorporeal privileges, granted for the purpose of obtaining it (q). A licence of this description, however, granted to a man and his heirs, conveys an inheritable and assignable interest (r), so that the grantee may sell and assign the right, and his assignee will have a right to enter and search for, raise and carry away, minerals as against the grantor and his heirs. But, whenever a profit d prendre merely is granted, there is only a licence or covenant so long as no specific chattel has been severed from the inheritance, and taken possession of under it ; and such licence or covenant will not bind the land in the hands of subse- quent purchasers without notice («) ; for, " if a man grants a (o) Symii'a case, 8 Co. 54a. Ip) Twysden, J., Pom/ret v. Hicroft, 1 Saund. 322. (?) Doe r. Wowi, 2 B. & Aid. 738. Chetham v. Williamson, 4 East, 475. Mountjoi/'' s case, 4 Leon. 147 ; Godb, 18. Newby V. Harrisot*, 1 Johns. & Hem. 398. Carr v. Benson, L. R., 3 Ch. 524. Ir) Muskett v. Hill, 6 Bing. N. C. 694. («) Ld. Wensleydale, Bowbotham v. Wilson, 8 H. L. C. 359 ; 30 L. J., Q. B. 965. SKCT. n.] IMOHTH OV I'KOl'KKTY IN LAND. '2d7 290 licence, and then parts with the property over wliioh tho privilege is to bo exercised, tho licence in pono (/) ; for it is an authority only with respect to tho soil of the grantor ; and, if tho close ceases to bo his soil, tlio authority iH instantly at an end" («)• If, however, the grant is not merely of a profit d pirntfrc in alieno nolo, but a conveyance of the land itself, such as a grant to a man, his heirs and assigns, of oil the existing minerals {x), or a right to search for, raise, and carry away, all tho minerals to be found within certain prescribed limits, the property in tho minerals will then pass to the grantee, and the latter will be the sole owner of them, the grantor continuing the owner of the surface. If a landowner has granted to another a right to dig coal-pits in his land, and to take and carry away coal, all things necessary for tho exercise and enjoyment of tlxo right nass therewith to tho grantee. lie has a right, therefore, to erect sheds and steam- engines, and to fix such machinery as may be necessary to drain tho coal-pits, draw up tho coals and iron, and work the coal-field, although the grant of the incorporeal right may be silent as to any such erections (//). Conventional HcrcitudcH — Profitn a prendre — Iii(jlits of xportinrj. — The right of taking tho game is an ordinary incident of i)roperty ; but it may be severed from the ownership of tho soil, and granted as a separate tenement to another in fee (s). The right of shooting over tlie lands of another is a right to shoot over the lands as they may happen to be, the landlord not doing anything for the express purpose of injuring the right of shooting, nor being precluded from using his land in the ordinary and proper way. A land- owner, *^heTefore, who has demised for a term of years the right of shooting ever his lands, is not thereby prevented from cutting timber as he thinks fit in tho ordinary manogement of his land, although injurious to the shooting (r/). Where land is let to a tenant reserving the right of shooting, tho tenant may maintain an action for overstocking the land Avith game so as to cause damage to the tenant's crops (6). Conventional servitudes — Profits a prendre — Free uarren. — The term "warren" has not always the same precise and definite U) Pollock, 0. B., Coleman v. Foster, 1 H. & N. 40. Brown v. Metropolitan County Society, 1 El. & El. 832 ; 28 L. J., Q. B. 236. (m) Farko, B., Wallis v. Harrison, 4 M. & W. 644. Malone v. Harris, 11 Ir. Ch. R. 39. {x) Cardigan (Earl of) v. Armitage, 2 B. & 0. 197. (//) Band v. Kingscote, 6 M. & W. 190. {z) Wickham v. Hanker, 7 M. & W. 63. {a) Gearns v. Baker, L. R., 10 Ch. 355; 44 L. J., Ch. 334. (A) Farrer v. Nelson, 15 Q. B. D. 258 ; 64 L. J., Q. B. 385. See jrest v. Houghton, 4 0. P. D. 197. 208 iNJUiaiis TO itiairra of ntoriiiiTy. [chap. viii. 1*1 291 moauing. It may ho tlio oxprossion of a grant of a franoliiso only, or it nuiy import a ooiivoyanoo of tho soil (r). Conventional scrvitiutcH — Projitn a prcntlir. — JiiijfifH offiiihcnj aro dividod into sovoral flshory and common of fishery {tt). Conrrntional nrrvifndes — Projitn d prendre. — A several fxherif is a riglit to fiwh in certain water, to tho exclusion of all other persons (<■). A several fishery is Homotimes called a free flslu^ry, ■when tho word " free " is used in tho same senso in which it is used in tho words **freo warren "(_/'). It has been much debated whether tho ownf^rship of tho soil is included in a several fishery (//) . Convenfioniil sern't tides — Profits d prendre. — Common offinherij is a right to fish in tho water of another, but so that tho owner of tho soil is not excluded from fishing there (/d). The name of free fishery is also not unfrequently given to tho right more correctly described as common of fishery; and honco some confusion has arisen as to the meaning of a free fishery (/). There may bo a qualified right of fishery in a non-navigablo river. Thus, tho riparian owners on a stream mt.y grant to one of thom to have a weir for tho purpose of taking fish, at such times as the whole volume of water is not wanted for the purpose of a mill ; and such grant, of which enjoyment is evidence, will bo good (/.). The right to have a weir in the channel of a navigable river for tho purpose of catching fish, is a right founded on grant or prescription : and the right to ancient weirs has in some instances been legalised by statute, although they totally obstruct the navi- gation of the river (/). Tho right of the Crown to grant a several fishery in a tidal river to a subject is derived from the ownership of tho soil, which is in the Crown by the common law. Hence, if tho water per- manently changes its channel, and flows over land of another, a several fishery in the new channel cannot be claimed by the grantee of a several fishery ia the old, although tho public right of navigation will continue (>w). (c) Earl Beauchampy. Winn, L. R., H. L. 223. Jiohvmn v. Bulcep Singh, 11 Ch. D. 798 ; 48 L. J., Ch. 758. (rf) ^oepost, pp. 341, 616. (f) Co. Litt. 122iv. Keil v. Luke vf Devonshire, 8 App. Cas. 135. (/) Per Willes, J., Makolmson v. O'Lea, 10 H. L. C. 593, 619. ((/) Bloomjield v. Johnston, Ir. Rep., 8 C. L. 68. Marshall v. Uilfswatcr Navi- gation Co., 3 B. & S. 732; 32 L. J., Q. B. 139. {h) Co. Litt. 122a. (i) Per WiUes, J., Makolmson v. 0'7)m, 10 H. L. C. 693, 619. (A) Mollev. WhyU, L. R., 3 Q. B. 28G; 37 L. J., Q. B. 105. Lcconjlchl v. Lons. dale, L. R., 6 C. P. 657 ; 39 L. J., C. P. 305. (/) Williams v. Wilcox, 8 Ad. & E. 386. (»») Mayor, ^., of Carlisle v. Graham, L. R., 4Ex. 301; 38 L. J., Ex. 226. Seo Duke of Northumberland v. Houghton, (L. R., 6 Ex. 127 ; 39 L. J., Ex. 66), as to the merger of a several fishery, origi- nally granted by tho Crown previous to Magna Charta. ■A .nim, ui'.i.itli.di!£\i iriV^.::.f:.^-,!>-i'-:.i 8KGT. II.] iUOlllH OF ritOl'tUMY IN LAND. 209 292 If a man has granted to another a right to fish for his own U80 and conHuniption, and draws all the water away from the pond or Btroam, and destroys thu fish, the grantee shall have his remedy hy action («). Conventional Hci'vitudos — Etm'ments. — An easement is a privilege or honefit exereiwod or derived by one man over or from the soil of another, unaccompanied hy any profit or interest in the soil itself. Thus, one proprietor may acquire hy grant, or from long- continued and uninterrupted enjoyment, a right of wa}' ; or a righi to take ■wator from his neighbour's well, or to wash and water cattle at a neighbour's farm (o), or other rights of water; the right to hang and dry clothes on lines on a neighbour's land ( p) ; to hang and dry nets thereon (7) ; to turn the plough thereon in ploughing (r) ; to discharge water thereon from the roofs and eaves of houses (s) ; to have the benefit of a neighbour's foneo or hedge maintained and repaired at the expense of such neighbour {t) ; to have a hatch in a stream of Avater («) ; to have a pile fixed in the bod of a river (x) ; to have a sign-board upon a common ( //) ; or upon a neigh- bour's house (s). A privilege or benefit of this description, iinac- companied by any profit or interest in the soil itself, is called in our law an casement, and is claimable by custom, grant or prescription. Conventional servitudes — Easements — Eiyht of way. — When the right depends upon express grant, the nature and extent of the right are defined by the express terms of the grant {a) : and primA facie, the right of going to land, unrestricted as to purpose, is a right to go to it for any purpose whatever (Ji). When the right rests upon user and enjoyment, the extent of the right is defined and limited by the extent of the user and enjoyment ; and it is then, in general, a question of fact in each particular case as to whether the evidence of user shows a general right of way, both for horses and carriages, and for all reasonable and necessary purposes, or only a restricted and limited right for a particular purpose (c). But the immemorial user of a right of way for all (») Twysden, J., Pomffet v. Itkroft, 1 Saund. 322. (0) nace V. Ward, 4 El. & Bl. 702 ; 24 L. J., Q. B. 163. Munuing v. Wasdale, 5 Ad. & E. 768. (p) Dmcell V. TowUr, 3 B. & Ad. 735. \q) 7 Vin. Abr. p. 183, Custom, F. pi. 2. ()•) Vin. Abr. p. 174, Cpstom, P. pi. 4, F. pi. 1. (s) Thomas v. Thomas, 2 C. M. & R. 34. U) Boyle v. Tamhjn, C B. & C. 338 ; 9 D. & R. 437. Barber v. Whiteley, 34 L. J., Q. B. 212. (««) Wood V. Hewitt, 8 Q. B. 913. (x) Lancaster v. Hie, 6 C. B., N. S. 717. {ij) Iloarev. Metropolitan Board, L. R., 9 Ji. B. 290 ; 43 L. J., M. C. 05. (s) Woody V. Stiggles, 12 Ch. D. 201 ; 48 L. J., Ch. 039. (rt) Cousensv. Hall, L. R., 12 Eq. 300. (b) Henning v. Burnett, 8 Exch. 187. Williams v. James, L. R., 2 C. P. 677 ; 30 L. J., C. P. 250. (e) Ballard v. Dyson, 1 Taunt. 287. Boner v. Uill, 1 Bing. N. C. 649 ; 1 So. 636. Brunton v. Hall, 1 Q. B. 792 ; 1 G. & D. 207. See Wood on Nuisances, pp. 173—180. \ \ I s r \ t 800 INJURIES TO UIGIITS OF PUOrERTY. [CIIAP. VIH. ■.li! . 01: 293 purposes for which a road was wanted in the then condition of the property, does not establish a right of way for all purposes in an altered condition of the property, where that would impose a greater burden on the servient tenement {d). Where, however, the right of way is given by an Inclosuro award made under the axxthority of an Act of Parliament, the right is a general right of way for nil purposes for which the land may at any future time bo used (<•). Proof that a person has used a way for various ptirposos, when- ever he required it, for twenty years, is prima facie evidence of a right of way for all purposes, from which a jury may infer a general right ; but proof of user for one purpose, or for particular purposes, will not raise an infere;ico of l general right (/). Proof of the exercise of a right of way for twelve years for all purposes, and for twenty years for the only purposes for which the person using it required it, is sufficient to establish the existence of a general right {(j). If the plaintiff has a right to go backwards and forwards with carts and caniages, and ic io reasonable that ho should have room to turn round, he will have a right to go on the adjoining land if the road is not wide enough for the purpose. What is a reasonable exercise of a right of way ii a question of fact {li) ; and, therefore, where the jury found that the carting by A over another person's land of hay, grown partly on land, to which it was admitted there was a right of way over such other person's land, and also partly on land beyond, to which no such right was appurtenant, was a reasonable, bond fide exercise of his right by A, the coiu*t refused to interfere (/). If a gate is erected across a private foot way by the owner of the soil, so a^: to afford no actual obstruction to the use of the way by the grantee, an action will not bo maintainable against the land- owner so erecting the gate ; but in the case of tno grant of a way for horses and carriages, and the use of the way by the grantee free from gates, a gate cannot afterwarua be lawfully placed across the way (A-) . A plea of a right of way in the occupiers of certain premises may be established by proof that the defendant is seised of a freehold or copyhold estate in such premises, and that they are (d) Wimbledon S[ Putney Commmis Con- servators V. Dixon, 1 Ch. D. 362; d5 L. J., Cb. 363. Corporation of Loudon v. Itiggs, 13 Ch. D. 798 ; 49 L. J., Ch. 297. (e) Newfomenv. Couhon,&Ch.. D. 133; 46 L. J., Ch. 469. Finch v. G. IF. Rail. Co., 6 Ex. D. 264. (/) Cowling V. Iligginson, 4 M. & AV. 256. Hollins v. Vemey, 13 Q. B. D. 304 ; 53 L. J., Q. B. 430. {(7^ Bare v. Ilealhcote, 25 L. J., Ex. 246. (/() Hawkins v. Carbines, 24 L. J., Ex. 44. (t) Williams v. James, L. R., 2 C. P. 577 ; 36 L. J., C. P. 256. {k} James v. Ilaijicard, W. Jones, 221 ; Cro. Cai-. 184. SECT. II.] RIGHTS OF PROPERTY IN LAND. 301 294 in tho oociipation of a tenant to whom be has demised tliem ; for a landlord may be constructively an occupier so as to give him a right to use a way appurtenant to his own premises, although those premises are in the possession of a tenant. The landlord of a tenement to which a right of way is appurtenant, may, while the tenement is in the ocmpation of a tenant, lawfully use the way to remove an obstruction and to assert the right of way, or to view waste, or to demand rent, or for any other purpose connected with the exercise of his rights or duties as a landlord (/). Convcntioiml scrcitudcs — Easements — Itiyht of icay — Deviatious extra viam. — Y/hen a way has once been assigned, or a prescrip- tive right to go in any particular direction established, the course or direction of tho way cannot be altered by one party '.vithout the consent of the other. A grant of a right of way to and from a particular dwelling-house, coach-house, and stables, will not enable the defendant to go to and from an adjoining spot which he can reach from the same line of road. If there is a grant of a way to a particular corner of a held, the grantee can go to no other part(>«). Where T had a way over the close of //, and // ploughed and sowed his close, leaving a way in an unploughed place in the same close, it was held that T was not bound to use the new, unploughed way, but was entitled to go where the ancient way was. H may, however, use the new way as long as it lies open ; but, if the owner afterwards stops up tho new way, he has no right to remove the obstruction and pass along it (ji). In the case of a public highway out of repair, passengers have in general a right to go upon the adjoining land ; but this is not the case with a private way ; if the passenger deviates, he commits a trespass (o). If a man has a right of way to a close called A, he cannot justify using the way to go to A, and thence to another close of his own adjoining A (p). The grantee of a right of way which has been obstructed by the grantor has a right to deviate over the grantor's land as long as the obstruction exists, and is not bound to proceed against the grantor for the removal of the obstruction {q). Conventional servitudes — Easements — Right of way — Of the main' tenancc and repair of irai/s (r). — Every grantee of a right of way, to be exercised and enjoyed over or through the land of the grantor, I *■ 5 I (/) Proud V. Hollis, 1 B. & C. 9 ; 2D. kn. 31. (ill) Ilenning v. Biinictt, 8 Exch. 193. Skull V. Olmnister, 16 C. B., N. S. 81 ; 33 L. J., C. P. 186. (m) Home v. Widlake, Yelv. 141 ; Noy, 128. Rcignolds v. Edtvardu, Wille j, 283. (o) Taijlor v. Whitehead, 2 Doug. 747. Milliard V. SaniaoH, 4 M. & S. 393 ; see post, p. 612. (p) 1 Roll. Abr. 391, Chimin Private, cited Allan v. Gomme, 11 Ad. & E. 770. (q) Selby v. Nettlefold, L. R., 9 Ch. Ill; 43L. J.,Ch. 369. (r) The law is tho same as to water- courses, post, p. 296. 302 INJUKIES TO EIGHTS OF PROPERTY. [CHAP. VIII. I 295 must himself repair the way, if he desires to have it repaired and kept in repair for his nse, or if repairs are necessary to prevent the enjoyment of the right becoming an annoyance and nuisance to the owner of the sen'ient tenement, unless the grantor himself has expressly undortaken the performance of that duty. " If I grant a way over my land, I shall not be bound to repair it. If I stop it, an action lies against me for the misfeasance ; but for the bare nonfeasance, viz., in not repairing it when it is out of repair, no action at all lies" (s). Where a landowner is under an obligation to repair a road ratione tcnurw, it is doubtful whether an action can be maintained against him by a person who has sustained damage by reason of the road being out of repair ; but an action has been held maintainable by a lord of a manor, who relied on a pre- scription that he and all who had his estate had a right to have a bridge kept in repair by the owner of a mill {t). The grantee of a right of way has a right to go upon the land over which tho easement is enjoyed to do the necessary repairs {»). He has also a right to make an effective road for the purpc s for which the right is granted, Thus, if the grant is of a carriage-way, he may enter the field and make over it a carriage-way sufficient to support the ordinary traffic of a carriage-way (x) ; and a right of way for carrying coals from a co]\\Qry prima facie gives the grantee a right to lay down a railway for the purpose {y). Under x general grant of a right of way, with liberty to make and lay causeways, and use the same with waggons and carriages, and carry coals, it was held that the grantee had a right to construct and use framed waggon-ways, if they were reasonably necessary for the profitable conveyance of coals, but that he was not entitled to make a transverse road across the land for purposes foreign to the con- veyance of coals (s) ; and, where there was a grant of a right of way as a foot or carriage-way, with all liberties, powers, and authorities necessary to the enjoyment thereof, it was held that the grantee of the way might lay dofvn a flagstone upon the land in front of his house, over which the way passed, if the flagstone was reasonably necessary for his enjoyment of the way, and the laying of it down did not in anywise obstruct the carriage- road, or cause any injury or inconvenience to the grantor {a). («) Pomfret v. Bieroft, 1 Wins. Saund. 322. It) 11 Hen. 4, c. 28, p. 33. Young v. Davit, 7 H. & N. 760 ; 2 H. & 0. 197 ; 31 L. J., Ex. 264. {u) Taylor v. Whitehead, 2 Doug. 745. M'Swiney v. Haynes, 1 Ir. Eq. R. 322. So the giantees of the right to use a towing path have a right to repair the towing path. Winch v. The Conservators of the Thames, L. R., 7 C. P. 458 ; 9 0. P. 378 ; 43 L. J., C. P. 167. {x) Jessel, M. R., Newcomen v. Cotd- son, 5 Oh. D. 133, 143; 46 L. J.. Ch. 459. (y) Land v. Kingseote, 6 M. & W. 174. U) Senhotue v. Christian, 1 T. R. 569. (a) Gerrard v. Cooke, 2 B. & P., N. R. 115. By tho civil law, every owner who ^IP SECT. II.] RIGHTS OP PROPERTY IN LAND. 303 296 Conventional scrciimh's—EaHcnicuts — Rights of water {h) — Of the maintenance and repair of wafer-courses. — If I grant a right to a water-course through my land, the grantee is bound to keep the water-course in proper order and repair ; and, if it becomes ruinous and obstructed so that the water floods my lond, the grantee will be responsible for the nuisance (c). The grantee has a right to go upon the land over which the easement is enjoyed to do the necessary repairs (d). So, where the owners of a house had an easement for a supply of water by pipes through the adjoining land, and the owners of the adjoining land erected a building upon it, an injunction was granted to restrain the erection of the building, as it materially interfered with the plaintiff's access to the pipes for the purpose of repair (e). Conventional servitudes — Easements — Right to the benefit of a fence. — At common law the occupiers of adjoining closes are not bound to fence either against or for the benefit of each other ; but each occupier is bound to prevent his cattle from trespassing on his neighbour's premises. Lands may, however, be burthened by grant or prescription with the servitude of maintaining a wall, fence, hedge, or gate for the benefit of the adjoining land, in which case the occupier of the servient tenement will be responsible to the occupier of the dominant tenement if he allows the wall, fence, &o., to be ruinous and defective, so that cattle and sheep break through the fence and stray from one tenement to the other. "Where the liability to maintain a fence exists, the person liable is bound at his own risk, except in the case of vis major or the act of God, to have a sufficient fence always existing, and is liable notwithstanding that he has no notice that the fence is out of repair (/). The occupier of the dominant tenement is entitled to the benefit of his field for turning in other people's cattle as well as his own ^ 1 1 .1 i! 5 1 1*. ', \ was entitled to a way, or the free passage of running water, from his dominant tenement through an adjoining servient tenement, was entitled to enter upon the servient lands to repair the way or water- course when necessary, and bring thereon the materials necessary for the purpose, making compensation to the owner of the servient tenement for all damage done in the progress of the repairs. (Gale on Easements, 5th ed., 555.) {b) Local authorit'es have the same powers with respect to carrying water- mains as they have for carrying sewers by 38 & 39 Vict. c. 55, s. 54 ; but there is a saving of water rights generally by sect. 332. (f) Lord Egremmt v. Pidman, M. & If. !04, cited in Bell v. Txcentyman, 1 Q. B. 775. Hoare v. Dicl-enson, 2 Ld. Raym. 1668. M^Swiiiey v. Haijnes, 1 Jr. Eq. R. 322. So in the civil law: In omnibus servitutibus refcctio ad eum per- tinct qui sibi servitutem adterit, non ad eum cujus res scrvit. Gale on Easements, 5th ed. , p. 529. As to the repair of ways, see ante, p. 294. (rf) Taylor V. Whitehead, 2 Doug. 745. Goodhart v. Hyett, 25 Ch. D. 182; 53 L. J., Ch. 219. The grantee of a drain may under certain circumstances deepen the drain. Finlinson v. Porter, L. R., 10 Q. B. 188 ; 44 L. J., Q. B. 56. (e) Goodhart v. Hyett, 25 Ch. D. 182 ; 53 L. J., Ch. 219. (/) Lawrence V. Jenkins, L. R., 8 Q. B, 274 ; 42 L. J., Q. B. 147. f^, .304 INJURIES TO RIGHTS OP PROPERTY. [cHAP. VIII/ .>»! . m. ill 297 stock ; nnd, if he lukes in another man's horse, and the horse gets through a ruinous fence which the adjoining occupier ought to have repaired, and falls into a pit on the adjoining land and is killed, the occupier who ought to have repaired the fence is responsible for the full value of the horse to tha occupier of the field from which the horse strayed (//). An action for the non-repair of fences cannot be supported against the landlord when the land is in the possession of a tenant ; for it is the duty of the actual occupier to repair and maintain fences, and not the duty of the landlord (/<). If A is obliged to maintain a fence against B, and neglects his duty, whereby ii's cattle escape into -4's land, A cannot maintain an action against B for any injury the cattle may do ; and, if A^& servant is on A^% land, and is injured by i^'s cattle, he is in the same position as his master, and can maintain no action against B. Thus, where, from a defect in the fence, yl's cattle escaped on to the line of a railway company, and a servant of the com- pany, who was returaing from work along the line on a trolly pro- pelled by his feet, ran over the cattle and was upset and injured, it was held that, even assuming there was negligence in A in per- mitting the cattle to remain in the field after notice of the defect in the fence, the servant could not recover, as he was identified with the company by whose neglect to maintain a sufficient fence the accident was caused (/). Conventional servitudes — Easements — Sea-icalts. — An owner of land adjoining the sea or a tidal river is not liable at common law to maintain a sea-wall on his land to keep out high tides for the benefit of adjoining owners. He may, indeed, be liable by prescription; but the mere fact that such a wall has existed, and that he and his predecessors ha^e repaired it from time im- memorial, is not sufficiex^t evidence of such liability. The mere repair of a man's own sea-wall for his own benefit, however often done, and during however long a period of time, will not 2)er se, although the neighbours may in fact benefit by such repair, impose on a man the duty of continuing such repairs for his neighbour's benefit, when he ceases to care to do it for his own (k). But an owner of the foreshore must not remove the shingle there- from, if in so doing he exposes the land of others to the action of the sea by destroying the natural barrier ; for it is the duty of the Crown to protect the realm from the inroads of the sea by main- !3 (a) Booth V. Wilson, 1 B. & Aid. 69. Xm V. Eiley, 18 C. B., N. S. 722 ; 34 L. J., C. P. 212. See pout, p. 389. ^dre or easement must, in order to pass the legal estate, be made by deed (s). But it is apprehended that a contract to grant a profit d j^t'cndre or an easement will pass the equitable estate, and that such equitable estate will be protected against tort-feasors. Prima facie the grant of a profit a prendre or easement does not extend beyond the duration of the estate of the (/) Att.-Geii. V. Tomline, 14 Ch. D. 58 ; 49 L. J., Ch. 377. (»j) JJ. V. Commissioners of Sewers for Essex, 14 Q. B. D. 561; 11 App. Cas. 449. («) Leech v. Sehweder, L. R., 9 Ch. 463 ; 43 L. J., Ch. 487. (o) Potts V. Smith, L. R., 6 Eq. 311 ; 38 L. J.. Ch. 68. 230 {p) Eoberls v. Macord, 1 M. & Rob. (?) Webb V. Bird, 10 C. B., N. S. 268 ; 13 »*., 841 ; 31 L. J., C. P. 336. Bryant V. Lefever, 4 C. P. D. 172 ; 48 L. J., 0. P. 80. See, however, post, p. 306. (»•) Sturgesy.Bridgman, 11 Ch.D. 852; 40 L. J., Ch. 785. As to when a noifco is a nuisance, see post, p. 367. («) Bac. Abr. Gbaotb, E. Co. Litt. 9 a, 42 a. 14 Vin. Abr. Geant, G. (a). 2 Roll. Abr. Geant (g). Jones v. Bobin, 10 Q. B. 620. II III II i 306 INJURIES TO RIGHTS OP PROPERTY. [cHAP. VIII. 299 grantor. Thus, if a termor by general words grants a profit d prendre or easement to be exercised over the land included in the term, and afterward acquires the reversion expectant on the deter- mination of the term, the right to the profit d prendre or easement wir be extinguished at the time when the tenn would have expired, unless a contract or bargain to the contrary can be collected from the terms of the grant (/). The grant of a right of way in general terms is to bo construed with regard to the nature of the road over which it is granted and the purpose for which it is intended to bo used ; and both these circumstances may be legitimately called in aid in determining whether what is granted is a footway or a drift way or a carriage way (?<). A grant of a right of way will not fail in point of law because it does not point out the precise, definite track between the one terminus and the other in which the grantee is to go in using the right of way. If the owner of the servient tenement does not point out the line of way, the grantee must take the nearest way he can. If the owner of the servient tenement wishes to confine the grantee to a particular track, he must set out a reasonable way ; and in that case the grantee is not entitled to go out of the way merely because it is rough or there are ruts in it (x). Exclusive grants must be framed with words of an exclusive character, otherwise the grantor is not precluded from granting the same privilege to other persons (y). A mere licensee of a right of way, or of a right of passage with boats on a canal, who has no interests in the soil over which the privilege is exercised, has no right of action against a wrong- doer who exercises the same privilege, but does not obstruct the licensee in the enjoyment of his right (s). Conventional servitudes — Acquisition — Reservation of 2J)'ofits and easements amounting to an express grant. — Reservations, properly 80 called, are only of rents and services; and a reservation of an easement or privilege, whether to a stranger or not, operates as a fresh grant. When, therefore, in a deed of conveyance or an indenture of lease, there are words of exception and reservation of an easement or profit d prendre, they will operate as an express grant, which may be made to enure either in favour of the con- veying party, his heirs and assigns, or in favour of a stranger who (0 Booth V. Alcock, L. R., 8 Ch. 063 ; 42 L. J., Ch. 657. (m) Cannon v. Villars, 8 Ch. D. 416 ; 47 li. J., C3h. 697. (x) Mellish, L. J., Wimbledon and ^tnty Commont Coruervator* t. Dixon, 1 Ch. D. 362, 369 ; 46 L. J., Ch. 353. (y) Newby v. Harrison, 1 Johns. & Hem. 396. Carr v. Bentoii, L. R., 3 Ch. 524. («) JffiKv. Tupper, 2 H. & C. 121. u'i'i.,.V.*_:;a\i<.^T*t:'L=L..». SECT. II.] RIGHTS OF PROPERTY IN LAND. 307 300 was no party to the deed of conveyance. Thus, where a lord of a manor conveyed to one 17 and his heirs certain lands and pre- mises, parcel of the demesne of the manor, excepting and reserving to himself, and another, who was not a conveying party to the deed, their heirs and assigns, free liberty, Avith servants or otherwise, to come into and upon the lands so conveyed, and there to hawk, hunt, fish, and fowl, at any time thereafter, at their will and pleasure, it was held that the words of reservation or exception so used operated as an express grant of an incorporeal hereditament, that the liberty of hawking, hunting, fowling, and fishing, granted to a person, his heirs, executors, and assigns, amounted to a profit d prendre, authorising the grantee to take and carry away the fowl and the fish, and not to a mere license of pleasure, and that it con- ferred upon the grantee a right to send his servants to hawk, himt, fish, and fowl for him in his absence («). A right of way or of watercourse cannot in strictness be made the subject either of exception or reservation. It is neither parcel of the thing granted, nor is it issuing out of the thing granted, the former being essential to an exception, and the latter to a reser- vation. A right of way, therefore, reserved to a lessor on the making of a lease, is in strictness of law an easement newly created by way of grant from the grantee or lessee, in the same manner as a right of sporting or of fishing. Conventional servitudes — Acquisition — Distinction between the reservation of part of the land and the reservation of an easement. — When the owner grants a property excepting a certain part of it, there is no grant of the part excepted. Thus minerals excepted remain in the grantor: the grantee takes no interest or right whatever in them. If, on the other hand, the grantor reserves certain rights and interests, the rights and interests reserved must come by way of re-grant from the grantee (ft). If the grantor reserves an easement, he cannot use it for any other purpose than the particular purpose for which it was originally granted ; but, if he reserves the land itself, he can use it in any way consistent with the rights of the public at large and of adjoining landowners. Thus, if A^B park adjoins ^'s, and A has no access to his mansion- house except by a road through his neighbour ^'s park, over which he has acquired by grant a right of way for the purpose of enabling him, and all othc:.: persons coming to his house, to enjoy the privilege of driving along it, and so reaching a road in his own park and proceeding to the house, A cannot use the portion of road (o) Wichham v. Eawker, 7 M. & W. 100—116. See, aa to implied resorva- 63. Doe V. Lock, 2 Ad. & E. 743. Pan- tions, post, p. 301. nell V. Mill, 3 C. B. 636. Shep. Touch. (4) rroud v. Bates, 34 L. J., Ch. 406. X2 ! \ X l^^>.dV«K^t. IJEiu-*!, If ' r II \K{ p. i if hi; 308 INJURIES TO RiailTS OF PROPERTY. [CIIAP. VIII. 301 over which he has only a right of way for any other purpose than that of obtaining access to his own house ; but, as regards his own park, he may use the road there for any purpose ho thinks fit. If A sells to 2? his own park, reservir.g only his house, and a right of way over the road through his park to the house, he will only be able to use the road as a means of access for himself and his friends to his house, of v/]iich ho still retains possession. But, if, in order to have complete dominion over the road up to his house, instead of reserving a right of way over what he is selling, he reserves the road and the soil over which it passes, ho may do whatever he pleases with the road ; for instance, he may fence it off and prevent B from having any access to it, leaving li to make a new road for himself. A will still have the sole control and dominion over the property in the road, that property being his just as much after he has executed the conveyance as before (c). Conventional servitudes — Acquisition — Imjilied grant or reservation of easements. — On the grant by the owner of an entire heritage of part of that heritage, in the absence of any indication of a contrary intention, there will pass to the grantee all those continuous and apparent easements which have been and are, at the time of the grant, iised by the owners of the entirety for the benefit of the parcel granted (rf), and it is immaterial whether the entirety or the parcel granted is then in the occupation of the owner or of a tenant (p). If, therefore, a landed proprietor has annexed pecu- liar qualities and incidents to different parts of his estate, so that one portion of his land becomes visibly dependent upon another for the supply or escape of water, or for means of access, or for beneficial use and occupation, the qualities or incidents thus manifestly imprinted upon the property pass with the lands to which they are annexed to the grantee, as accessorial to the bene- ficial use and enjoyment of such lands (/). By apparent ease- ments must be understood, not only those which must necessarily be seen, but those which may be seen or known on a careful inspection by a person ordinarily conversant with the subject {g). But the mere fact of there being windows in an adjoining house, which overlook a purchased property, is not constructive notice of any agreement giving a right to the access of light to them (/«). (tf) Luke of Hamilton v. Graham, L. R., 2 So. App. 166. (d) Jiivart v. Cochrane, 4 Macq. 122. Hall-v. Lund, 1 H. & C. 676; 32 L. J., Ex. 113. Suffleld v. Broicn, 4 De G. J. & S. 185 ; 33 L. J., Gh. 258. As a general rule there ia no corresponding implication in favour of the grantor (JFheeldon v. Burrows, 12 Ch. D. 31 ; 48 li. J., Ch. 853), but there may be. Susscll V. Walts, 10 App. Gas. 590 ; 65 L. J., Gh. 158. W Barnes v. Loach, 4 Q. B. D. 494 ; 48 L. J., Q. B. 756. (/) Suffield V. Brown, supra. (?) Fi/er V. Carter, 1 H. & N. 922 ; 26 L. J., Ex. 258. As to this case, see JFheeldon v. Burrows, supra. {h) Allen v. Seckham, 11 Ch. D. 790; 48 L. J., Gh. 611. •^H^wnmm' ' ■ iji, i,« ii m* pi'.WWi SECT. II.] KKillTS OF PUOrKUTY IN LAND. au!) 302 Coiiroitioiifil serrifiidci — Arqtiisifion — Implied grant — Rights of natvr. — If a millownor soils a watermill which is supplied with water from an open sluice on the land of the vendor, the vendor cannot, after he has sold the mill, lawfully close the sluice, as ho would, by so doing, derogate from his own grant. Both the vendor, and all persons claiming under him, are bound to koop the sluice open for the benefit of the grantee of the mill (/). If one erects a house and builds a conduit thereto in another part of his land, and conveys water by pipes to tlie house, and afterwards sells the house with the appurtenances without the land, or sells the land without the house to another, the conduit and pipes pass with the house, because they are necessary and appendant thereto ; and tho purchaser of the house shall have liberty by law to dig in the land for amending tho pipes or making them now, as tho case may require. So it is, if a lessee for years of a house and land erects a conduit upon the land, and, after the term determines, tho lessor occupies them together for a time, and afterwards sells the house with the appurtenances to one, and tho land to another, the vendee shall have the conduit and the pipes, and liberty to amend them. " But," says Popham, C J., " if tho lessee erect such a conduit, and afterwards the lessor dm*ing the lease sell the house to one and the land wherein tho conduit is to another, and after that the lease determines, ho who hath the land wherein the conduit is may disturb the other in the using thereof, and may break it, because it was not erected by one who had a permanent estate or inheritance, nor made one by the occupation and usage of them together by him who had the inheritance. So it is, if a disseisor of a house and land erect such a conduit, and the disseisee re-enter, not taking conusance of any such erection, nor using it, but presently after his reentry sells it, the house to one and the land to another, he who hath the land is not compellable to suffer the other to enjoy the conduit" (/.). On the other hand, where a man sells land on the banks of a strean. he cannot, in derogation of his own grant, continue to foul tho water in front of the land sold, unless he expressly reserves such right (/). (i) Miner v. Gilmour, 12 Moo. P. C. 131. {k) ISicholas v. Chamberlai", Cro. Jac. 121. Broun v. Xicholln, Moore, 682. Archer v. llennctt, 1 Lev. 131. Hineh- liffe V. Earl Kinnoiil, 5 Bing. N. C. 23. Canham v. Fiske, 2 Cr. & J. 126. Wardle V. Brocklchiirst, 1 El. & El. 1058; 29 L. J., Q. B. 145. Watti V. Kelson, L. R., 6 Ch. 166; 40 L. J., Ch. 126. It was at ouo time held that whero the owner of two or more adjoining houses sells or conveys one of the houses, the purchaser of tho house is entitled to the benefit of all tlie drains from his house, and is subject to all the drains necessary to be used for the enjoyment of the adjoining house, and that without any express reservation or g^-ant. I'yer v. Carter, 1 H. & N. 916 ; 26 L. J., Ex. 268. But this cannot now bo considered good law. See ante, p. 301. (/) Croatley v. Lightoioler, L. R., 3 Eq. 279 ; 2 Ch. 478 ; 36 L. J., Ch. 584. 5 \ ^ \ m 310 1N.IIIR1KS TO UIGHT8 OF PHOPERTY. [ciIAP. VIII. 303 If adjoining houses, hold under the same landlord, aro sold Bubjoct to all subsisting rights of water, a mere permissive user by one tenant of water from a well in the adjoining house, will not thereby be converted into a legal right (m). A right to go to a well and take water is not a continuous easement, nor is it an easement of necessity ; and, consequently, there in no implied grant or reservation of such a right upon the conveyance or devise of the dominant tenement («). Conventional servitudes — Acquisition — Implied grant — liir/ht of icai/. — If a man is possessed of a house, and there is a way necessary for the useful and convenient occupation of the house (o) manifestly used by the occupiers of the house, a grant or lease of the house with its appurtenances will carry with it the right to use the way (p). But, if the way is not necessary for the beneficial use and occupation of the tenement, and there are other convenient means of access, a right of way will not pass under the word " appurtenances" (7). Nor will the use of the words "therewith used and enjoyed" operate to pass a way which was previously only used by the grantor for the more convenient occupation of two tenements, and which therefore never became attached to eii ter (r) ; but it will be otherwise, if the way was only used for the inore convenient occu- pation of the tenement granted, so that it can be said to have been enjoyed as if it were appurtenant thereto (s). If adjoining houses, held under the same landlord, are sold subject to all subsisting rights of way, a mere permissive user of a way will not thereby be converted into a legal right (t). If, in the conveyance of a plot of land, it is described as abutting on a new road or a new street, there is an implied grant of a right of way over the road or street (u). Conventional servitudes — Acquisition — Implied grant — Wai/s of necessity. — Whenever one man grants land to another to which there is no access but over the land of the grantur, or over the land (w) Rtmell V. Harford, L. B., 2 Eq. 507. (m) Folden v. Bastard, L. R., 1 Q. B. 168; 32 L. J., Q. B. 372. (o) Mansfield, C. J., Morris v. Edging' ton, 3 Taunt. 28. Pearson v. Spencer, 1 B. &S. 671; 3B. & S. 761. {p) Pollock, C. B., Olave v. Harding, 27 L. J., Ex. 292. See Wood on Nuisances, p. 174. (q) Theysey v. Vieary, 16 M. & W. 484. Lodd v. Burchall, 1 H. & C. 113 ; 31 L. J., Ex. 364. Wardle v. Brockk- hurst, 1 El. 4 El. 1058 ; 29 L. J., Q. B. 145. Bolton T. Bolton, 11 Ch. D. 968; 48 L. J., Gh. 467. In all conTeyances executed after the 3lBt December, 1881, the distinction between easements < < appertaining ' ' to and oaseinonts ' ' used and enjoyed with" the land conveyed, has by virtue of the Conveyancing and Law of Property Act, 1881 (44 & 46 Vict. c. 41), s. 6, become of no conse- quence. ()•) Langley v. Hammond. L. R., 3 Ex. 161 ; 37 L. J., Ex. 118. See, however, remarks of Fry, J., in Barkshire v. Grubb, infra. (s) Kay V. Oxley, L. R., 10 Q.B. 360; 44 L. J., Q. B. lilO. Bayley v. Great Western Rail. Co., 26 Ch. D. 435. Bark- shire V. Grttbb, 18 Ch. D. 616 ; 50 L. J., Ch. 731. (<) Daniel v. Anderson, 31 L. J., Ch. 610. (m) Hspley V. Wilkes, L, R., 7 Ex. 298; 41 L. J., Ex. 241. ■^ 8KCT. II.] UiailTS OF I'KOPEUTY IN LAND. 811 304 of a stranger which cannot lawfully bo traversed, the granteo has a right of way over the grantor's land, as a way by necessity, and the grantor shall assign the way where he can best spare it ; and, if the owner of two closes, having no way to one of them but over the other, parts with ^he latter without reserving the way, it will be reserved to him by law as a way of necessity (jt). Where one sold land, and afterwards the vendee, by reason thereof, claimed a way to it over part of the plaintiff's land, there being no conve- nient way adjoining, it was held that he might well justify tho using thereof, for otherwise ho could not have any profit of his land ; and, if a man hath four closes lying together, and sells three of them, reserving tho middle close, and hath not any way thereto but through one of those which he sold, although he reserved not any way, yet ho shall have it as reserved unto him by the law {{/). A person is not, however, entitled to have two ways of necessity, but the vendor may select the way, provided that it is a convenient Avay (s). A way of necessity, when tho nature of it is considered, will be found to be nothing else but a way by grant. It derives its origin from a grant ; for there seems to bo no difference where a thing is granted by express words, and whore by operation of law it passes as incident to the grant. In both cases the grant is tho foundation of the title («). Where an owner of a close and surrounding land grants the land, and reserves the close, the right to a way of necessity operates as if by a re-grant from the grantee of the land, and is limited in the nature of its user by the necessity which created it (b). According to some cases, it would seem that that may be called a necessary way, without which the most con- venient and reasonable mode of enjoying the premises cannot be had (c) ; but it may be doubted whether such a way is strictly a way of necessity. Conventional servitudes — Acquisition — Implied grant — Bight of support. — If the landowner sells a portion of his land avowedly and expressly for building, or for the construction of a road or railway, he impliedly grants to the purchaser, in the absence of statutory provisions to the contrary, an easement of lateral support J {x) 2 Roll. Abr. Geaot, Z., pi. 17, 18. Staple V. Ileydon, 6 Mod. 4. How- ton V. Frcarson, 8 T. R. 50. Morris v. Edgimjton, 3 Taunt. 30. rinnington v. Galland, 9 Exch. 12 ; 22 L. J., Ex. 349. Eastern Counties Rail. Co. v. Lorling, 5 C. B. N. S. 821 ; 28 L. J., C. P. 202. Gay ford v. Moffalt, L. R., 4 Ch. 133. Serffx. Acton Local Board, infra. {y) Clarke v. Cogge, Cro. Jac. 170. See Lavies v. Sear, L. R., 7 Eq. 427 ; 38 L. J., Ch. 645, nom, Daviet v. Slear, 8. C. (z) Bolton V. Bolton, 11 Ch. D. 968; 48 L. J., Ch. 467. (a) 1 Wms. Saund. 323 a, 323 b. Troctor v. Hodgson, 10 Exch. 824 ; 24 L. J., Ex. 195. (i) Corporation of London v. Biggs, 13 Ch. D. 798 ; 49 L. J., Ch. 297. See Serff V. Acton Local Board, 31 Ch. D. 679. {c) Morris v. Ed . Conventional serntudes — Acquisition — Lie '■ — "A dispensa- tion or licence," observes Vaughan, C. J., : perly passes no interest, nor alters or transfers property in auy 1' iig, but only makes an action lawful, which without it Led deen unia^vful, Thus, a licence to hunt in a man's park and carry away the deer killed to his own use, or to cut dowa a tree in a man's ground and to carry it away the next day after to his own use, are licences as to the act of hutting and cutting down the tree ; but, as to the carrying away of the deer killed and tree cut down, they are grants" [d). A mere licence of pleasure, such as a licence to hunt over a man's land, whether made by deed or siniple contract, is re- vocable; but a licence to hunt and carry away the game killed 310 amounts, if under seal, to a grant, and cannot be revoked {e). Care, however, must be taken to distinguish between a licence (n) Sury v. Tigot, Poph. 172; Palm. 444. {*) Popham, C. J., Lady Brotvri's case, cited Palm. 446. [c) 1 Jenk. Cent. Ca. 37; Bro. Abr. ExTiNouisHMENT, 15. In the Roman law, ■when the servitude was a non-appa- rent servitude, it was merged and extin- guished by unity of ownership of the dominant and servient tenements ; but, when it was an apparent, continuing servitude, such ae a window enjoying light and air, or lands having drains or watercourses or manifest ways running through them, the servitude was not extinguished ; so that, if the tenements were subsequently severed, tliey would be respectively benefited and burdened with their ancient, manifest, and con- tinuing privileges and obligations. Dig. lib. 8, tit. 2, 3. {d) Thimas v. Sorrcll, Vaughan, 361. (e) Bro. Abr. Licences. As to u licence to fish, see JUilh v. Mayor of Cclchcster, L. E., 2 C. P. 476 : 3 ib. 675; 37 h. J., 0. P. 278. SECT. 11.] RIGHTS OF PROPERTY IN LAND. 317 amounting to a grant of an easement to be exercised and enjoyed by the grantee of such licence upon the grantor's land, and a licence to the grantee to use his own land in a way in which, but for an easement claimed thereon by the grantor, he would have an undoubted right to use it. A right to go upon the land of another to shoot ovA sport there, or to fish in the waters thereof, authorising the licensee both to take and carry off the game or the fish, is an incorporeal right lying in grant, and can only be created by deed (/). A parol licence or permission will, so long as it has not been counter- manded, j astify an entry upon the land (g) ; but it confers no indefeasible right, and may be recalled at the pleasure of the gran+or, unless it is accompanied by a grant (A). Thus, a mere licence for the enjoyment of a right of way over the land of the licensor may at any time be put an end to by the latter. The locking of a gate across the way is a manifest revocation of the licence, and a plain statement to everybody that the way i.° no longer to be used. So a mere parol permission to cut a drain, or make a watercourse, and use it for the passage of water, may be revoked at law, and the drain or watci course stopped up by the proprietor who has given the permission, and through whose land the water runs (/). "In the case of a parol licence," observes Alderson, B., "to come on my land, and there to make a water- course for water to flow through my land, there is no valid grant of the watercourse. The licence remains a mere licence, capable of being revoked ; but, if the licence were granted by deed, then the question would be on the construction of the deed, whether it amounted to a grant of the watercourse ; and, if it did, then the licence would be irrevocable" (A). But, if a landowner has granted to his neighbour by parol an easement to be enjoyed over his land, and the neighbour incurs expense, with the sanction of the landowner, in constructing permanent works for the enjoy- (/) Luke of Somerset V. Fogivell, 5 B. & C. 875 ; 8 D. & R. 747. Birdy. Ilig- yinson, 2 Ad. & E. 690. Thomas v. Fredericks, 16 L. J., Q. B. 393. Ewart V. Graham, 7 H. L. C. 331 ; 29 L. J., Ex. 88. {a) Felt ham v. Carttcright, 7 So. 695. (h) Wood V. LcadbMer,n M. &W. 845. (t) Cockci- V. Cowpcr, 1 Cr. M. & R. 421. Fentiman v. Smith, 4 East, 108. (A) Wood V. Lcadbitter, 13 M. & W. 846. Lee v. Stevenson, El. Bl. & El. 512 ; 27 L. .T., Q. B. 263. Bridges v. Blan- chard, 1 Ad. & E. 649. A licence by parol may be revoked at any time by the licensor : Brown v. Botceii, 30 N. 1 . 519 ; Smith v. Scott, 1 Kerr (New Brunswick) 1 ; Allen v. Fisk, 42 Vt. 462; Dritse v. Wheeler, 22 Mich. 439; Dempieg v. JSTifip, 62 Barb. (N. T.) 311 ; Freeman v. Hcadley, 33 N. J. L. 523 ; Estcs V. Winne, 20 Mich. 156 ; Jhtineen V. Jiich, 22 Wis. 650 : Ilamilcon v. Windolf, 33 N. J. L. 623; Fates v. China, 56 Me. 407 ; Giles v. Simonds, 15 Gray (Mass.) 441 ; Boi'je v. McClin- tack, 47 N. H. 383 ; Rhodes v. Otis, 33 Ala. 678 ; Miller v. State, 39 Ind. 267 ; Maye v. Tappan, 23 Cal. 306 ; Hunston y. Laffee, 46 N. H. 606. But in some instances, where heavy expenditures have been made upon the faith of the licence, equity will enjoin a revocation of the licence : Cook v. Prigdeii, 45 Ga. 331 ; R. R. Co. V. McLanahan, 69 Penn. St. 23 ; Pierson v. Canal Co., 2 Dis. (Ohio.) 100 ; Veghte v. Raritan W. P. Co., 19 N. J. Eq. 142 ; Hetjield v. N. J. Central R. R. Co., 29 N. J. Eq. 671. "■**#^'*l i • < «i 't; 318 INJURIES TO BIGHTS OF PROPERTY. [CHAP. VIII. ment of the privilege, the landowner will not he allowed to with- draw his consent and prevent the enjoyment of the privilege, without making compensation to the licensee (/) ; for, whenever 311 a person has heen induced to lay out money upon the land of another, upon the faith of a verhal agreement, that in considera- tion of the expenditure the person laying out his money shall enjoy an easement, privilege, or profit upon the land, the privilege cannot he withdrawn by the landlord, without tendering full com- pensation for the expenditure {m). Thus, where persons desirous of supplying a town with water applied to the defendant for per- mission to make a watercourse through his land, and permission was granted by word of mouth, and the watercoiirse was made at considerable expense, and was enjoyed for nine years, when disputes arose, and the defendant cut off the water, the Court of Chancery restrained the defendant by injunction from obstructing the flow of water, on compensation being madt i,o him for the use of his land (n). If a landowner verbally agrees to allow an adjoining proprietor a right of way, or a right to the passage of water through his land, and the enjoyment of the privilege involves the outlay of money, and the consenting landowner allows the licensee or person to whom the privilege has been granted to expend money in making a road, or laying down a railway, or constructing a water- course, or erecting buildings, the court will interfere by injunction to prevent such consenting landowner fron. disturbing the enjoy- ment of the way, or watercourse, or easement, so verbally granted (o). Where works involving expense are made on land belonging to an incorporated company, on a spot where the com- pany may be considered personally present, where their premises are situated, and their operations carried on, the company, though an incorporated body, must be considered for all purposes of knowledge and acquiescence, to be in the same position as a private individual, and will be boimd in the same way (j?). In cases of this sort, where a person has obtained an equitable right to the enjoyment of an easement or privilege by reason of the expen- diture of his money on the faith of a verbal promise or under- standing, but has no legal title to any incorporeal right over the land of another, his equitable claim may, in general, be got rid of {I) Beaufort [Duke of) v. Patrick, 17 BeaT. 60. Moreland \. Richardson, 22 Bear. 696 ; 24 Beav. 33 ; 26 L. J., Gh. 690. Powell T. Thomas, 6 Hare, 300. im) Laird v. Birkenhead Rail. Co., \ ins. 600; 29 L. J., Gh. 218. Unity Joint Stock Banking Assoc, v. .Kinff, 25 Beav. 79; 27 L. iT, Ch. 685. Ramsden V. Dyson, L. R., 1 H. L. 170. Clavering^i ease, 6 Yes. 690. («) DevcnsMre (Duke of) v. Elgin, 14 Beav. 630 ; 20 L. J., Ch. 495. (o) 2 Eq. Gas. Abr. 622, pi. 3. Jack- son V. Catoi; 6 Vea. 689. Poioell v. Thomas, 6 Hare, 300. Mold v. JFheat- croft, 27 Beav. 510. East India Co. v. Vincent, 2 Atk. 82. Davies v. Marshall, 10 G. B., N. S. 697 ; 31 L. J., C. P. 61. See Bankart v. Tennant, L. S., 10 Eq. 141 ; 39 L. J., Gh. 809. ip) Laird v. Birkenhead Rail. Co., \ Johns. 500 ; 29 L. J., Gh. 218. SECT. II.] RIGHTS OF PROPERTY IN LAND. 319 by tendering him the amount of his expenditure, before the privilege is withdrawn or the enjoyment of it has been interrupted. If a tramway is made across land with the consent of the owner of 312 the fee, and is used for a number of years on payment of rent, the court will interfere to prevent an arbitrary increase of the rent, and prevent the licensee from being deprived of the use of the tramway, on proper compensation being paid to the owner of the soil for the enjoyment of the way (q). If the owner in fee of land stands by and allows another person to erect a building upon his land, and afterwards agrees with him as to the rent to be paid for it, neither he nor any person claiming under him can deprive the person who has so laid out his money of the use of the building (r) ; and, if an adjoining landowner assents to the rebuilding of a house upon a certain plan, with an increased elevation, or with an enlargement of ancient windows, or the opening of new windows, and the house is accordingly re-built on the approved plan, the landowner cannot afterwards object to the alterations (s). Where an easement has been bargained for and sold by parol, and has been enjoyed for years by the purchaser thereof, the court will restrain the vendor and any person claiming under him (not being a purchaser of the land for value without notice) from dis- turbing the enjoyment of the privilege. Thus, where A sold to his neighbour B the right of using two chimneys in A'a wall for a certain consideration, which was paid, and the chimneys were used for several years, and C purchased A'a house without actual notice of the right, the court held that, there being fourteen chimney-pots on the wall, and only twelve flues in A's house, C had constructivd notice of the right (t). But the mere fact of there being windows in an adjoining house which overlook a purchased property, is not constructive notice of any agreement giving a right to the access of light to them (m). Where the owners and occupiers of land authorized to be taken for public works have licensed the entry of a public board or company for the pm-pose of commencing the construction of the works, they cannot revoke the consent once given, and treat their licensees as trespassers, but must resort to the statutory remedy for compensation (x). "By the grant of trees by tenant in fee simple, they are absolutely passed from the grantor and his heirs, and vested in the grantee, and go to his executors or administrators, being, in (q) Mold V. Wheatcroft, 27 Beav. 510. (»•) Lann v. Spurrier, 7 Vee. 236. («) Catching t. Basset, 32 Beav. 101 ; 32 L. J., Ch. 286. (0 Hervey v. Smith, 22 Beav. 299 ; 1 E. & J. 392. (m) AlUn V. Seckham, 11 Ch. D. 790 ; 48 L. J., Ch. 611. {x) Doe V. Leeds and Bradford Rail, Co., 16 Q. B. 796 ; 20 L. J., Q. B. 486. Knapp V. London, Chatham, ^c. Bail. Co., 2 H. & C. 212 ; 32 L. J., Ex. 236. I I I '■■k I i I 320 INJURIES TO RiaiTTS OF PROPERTY. [CHAP. VIII. Vi (lorstanding of law, divided as chattels from the freehold, and the grantee hath power incident and implied from the grant to fell 313 them when he will, without any other special licence (t/) ; and the law gives him power, as incident to the grant, to enter upon the land, and show the trees to those who would have them, for without sight none would buy, and without entry none could see them (z) ; and ho may assign over the property in the trees, and his assigns may enter upon the land, so long as it remains the property of the grantor, and fell the trees and carry them away"(rt). If a growing crop of grass is sold to be cut dowr and made into hay when it arrives at maturity, the purchaser has a right by implication of law to make the grass into hay on the land (i). A licence to put goods on the licensor's land cannot be revoked without allov/ing the licensee a reasonable time for the removal of his goods (c). A parol licence to enjoy an easement over or upon the soil and freehold of another is at once determined by a transfer of the property; and the grantee ol the licence is, consequently, a trespasser, if he afterward enters uT)on the land in the exercise and enjoyment of his supposed right, although he has received no notice of the transfer (d). Conventional servitudes — Acquisition — Licences — Liabilities of the licensor. — The extent of the liability of the occupier of land to the person whom he has licensed to come upon that land depends on whether the licensee comes on the land for a purpose in which he and the licensor have a joint interest, or from which the licensor derives a profit, and upon his invitation, express or implied, or whether he comes for his own purposes only, in which last case he is called a bare licensee {e). In the former case there is an obliga- tion on the part of the occupier of the land to take, by himself and his servants, reasonable care that the person so coming shall not be exposed to imusual danger, of which the occupier knows or ought to know; and that obligation extends to a workman sent by a tradesman to repair machinery on the land (/), and *' a person who by the invitation of the defendant or his servant goes on to the defendant's premises for the purpose of making a complaint to the defendant (/). So, where the deceased was employed on adjoining premises, and came to look on at workmen excavating the earth by means of a crane and bucket, and allowed the bucket to pass just over his head, and the chain broke and he was killed ; it was held that he was at most a bare licensee, and was subject to (r) Holmes V. North-Zi Hern Rail. Co., L. H., 4 Ex. 254; 38 L. J., Ex. 161. (; Wright v. London and North- Western Rail. Co., L. R., 10 Q. B. 298 ; 1 Q. B. D. 252 ; 45 L. J., Q. B. 670. (<) Smith V. Steele, L. R., 10 Q. B. 125 ; 44 L. J., Q. B. 60. . (m) Woodley v. Metropolitan District Rail. Co., 2 Ex. D. 384 ; 46 L. J., Ex. 621. (x) Southcote V. Stanley, 1 H. & N. 247; 25 L. J., Ex. 329. (y) Blythe v. Topham, 1 Roll. Abr. 88 ; Cro. Jao. 158. Stone t. Jackson, 16 C. B. 204. Bardcastle v. South Toih' shire Rail. Co., 4 H. & N. 74 ; 28 L. J., Ex. 139. Gatttret v. Egerton, L. R., 2 C. P. 371 ; 36 L. J., C. P. 191. SECT. II.] RIGHTS OF PROPERTY IN LAND. 32JJ 816 all the risks incident to the position in which he had placed himself (s). If a person driving his own carriage takes another person into it as a gratuitous passenger, the latter, in the case of an accident happening, has no right of action against the proprietor, except in the case of gross negligence (a). Conventional servitudes — Acquisition — Licences — Liahilities oj licensor — Negligent management of docks and wharfs. — A duty is cast upon trustees and commissioners and other persons who have the receipt of the tolls and the possession and management of a dock or wharf vested in them, to take reasonoble care to keep the entrance to the dock or wharf free from dangerous shoals and obstructions, and to forbear from having the dock or wharf open for public use when they know it cannot be navigated or used without danger, whether the tolls are received by them for their own use or in a fiduciary character, or are not received at all {h) ; and if they keep the dock or wharf open, and allow the danger to continue, and invite vessels into peril, they will be personally responsible for any damage that may be sustained (c). So, if a person who has lawful business on board a ship lying in dock is injured by the insufficiency of a gangway provided by and imder the control of the dock company for the purpose of affording access to the ships lying in the dock, the company will be liable for such injury (rf). Reasonable care is not shown when, after notice of danger at a particular spot, no enquiry is made and no warning given (e). Conventional servitudes — Acquisition — Licences — Liahilities of licensor — Negligence — Dangerous canals. — Every canal company, so long OS it keeps its canal open for the public use of all who may choose to navigate it, is bound to take reasonable care that they may navigate it without danger to their lives or property (/). Conven ttonal servitudes — Acquisition — Licences — Liabilities of licensor — Negligence — Negligent management of gates placed across tramways. — Where a railway company were the owners of a tram- way which crossed their railway on a level, and which tramway they allowed tho public to use on payment of toll, it was held that the law imposed upon the railway company the duty of taking all reason- able precautions for the protection of the public using the tram- 1 r 09 I X {z) Batehelor v. Forteieuc, 11 Q . B. D. 474. (o) Moffat V. Batman, L. R., 3 P. C. 115. (i) The Queen v. Williams, 9 App. Cae. 418 ; 53 L. J., P. C. 64. (cj Qibh» V. Mersey Docks Trustees, L. R., 1 H. L. 93 ; 35 L. J., Ex. 225. And see Thompson v. North Eastern Rail. Co., 2 B. & S. 106 ; 31 L. J., Q. B. \U. (d) Smith V. London Lock Co., L. R., 3 C. P. 326 ; 37 L. J., C. P. 217. («) The Queen v. Williams, 9 App, Gas. 418; 53L. J., P. C. 64. (/) Lancaster Canal Co. v. Pamahy, 11 Ad. & E. 243. Oibbs v. Mersey Docks Trustees, L. R., 1 H. L. 93 ; 35 L. J., Ex. 225. y2 m' u ^24 INJURIES TO RIGHTS OK IMIOI'KRTY. [cHAP. VIII. 317 way ; and, where fences and gates are put up for the protec- tion of the public, the company are responsible for the consequences resulting from their negligently leaving the gates open (g). Conventional scnitiuku — Acquisition — Licences — Liabilities of licensor — Negligence — Negligent use and management of railway station'} — Insufficient lights and guards. — It is not sufficient for the lights tkt the station of a railway company to be quite sufficient for the company and their own servants, who know the premises, and are perfectly conversant with the approaches. They must bo enough to guide and direct strangers who are wholly unacquainted with the locality. A degree of light which will enable a person who is familiar with a place to see all about him, and understand where he is, may not bo sufficient to enable a person who is unac- quainted with, or has an imperfect knowledge of, the locality, to find his way or to guard against danger. " Railway companies are to light their railway," observes Maule, J., "not for their own servants alone, but for persons who have never been thero before, and who may be in a great hurry to reach the train ; and they are to light it so as to enable them to see their way. ... If they choose to allow people to cross the line at the last moment, they should have a person to point out to passengers who are in a hurry the right course for them to take ; or, if they have not a man, they might have a board pointing to the direction : for they are bound to do what is needful for the safety of their pas- sengers." Where, therefore, the plaintiff, being on his return- journey with a return-ticket, and having got to the wrong side of the railway, crossed the line to get to the train at a place where there was no proper crossing, there being no person to point out to him the proper crossing, and fell over a switch- handle, which he could not see for want of light, it was held that the company were responsible for the injury he sustained (A). And they were also held responsible where the plaintiff, not being able to cross to the exit side of the station, by reason of the train by which he had just arrived blocking up the proper crossing for ten minutes or a quarter of an hour, crossed behind the train, and fell over a hamper (i). But, in order to make out a case of negligence or of neglect of duty on the part of the company, it must be shown that they used or managed their property in such a way as to render it likely co be a source of danger to their passengers, and persons lawfully {g) Marfell v. South Wales Bail. Co., 8 C. B., N. 8. 536 ; 29 L. J., C. P. 315. (A) Martin v. Oreat Northern Rail. Co., 16 C. B. 180 ; 24 L. J., C. P. 209. Birkett Y. Whitehaven Junction Rail. Co., 4 H. & K. 730; 28 L. J., Ex. 348. (») Nicholson v. Lancashire atid York- shire Rail. Co., 3 H. & C. 634 ; 34 L. J., Ex.84. AadseeHolmesy. North Eastern Rail. Co., L. B., 4 Ex. 254 ; 6 Ex. 123; 38 L. J., Ex. 161. SECT, ir.] UlGllTS or I'KOl'KRTY IN LAND. 32.5 318 using the station (/) . It is not enough to show that they have doors opening upon the platform, and steps leading from those doors, and that the phiintid tumbled down the steps, without showing that the steps are more than ordinarily dangerous (/). There is no obligation on them, for instance, to provide hand- rails; ond the stops may bo tipped with brass, though possibly a different metal might be safer (///). Nor is it enough to show that the company had a weighing-machine on the platform, and that the plaintiff tun.bled over i^ In these cases it is always a ques- tion whether the mischief coul'l reasonably have been foreseen, and whether precautions ought not to have been taken to guard against it (/j). "Where rides are promulgated by a railway com- pany for the management of a station, and injuries are caused by the servants of the company endeavouring to carry these rules into effect, the company are responsible in damages, unless the injured party brought the mischief upon himself by his own negligence (o) . No duty is imposed upon railway companies to watch and keep closed gates put up for the accommodation of an adjoining landed proprietor, whose land extends along both sides of a railway ; and, where a railway company provides the adjoining landowners with keys for the gates, the company is not responsible for the destruc- tion of cattle straying u oon the line in consequence of the gates being left open [p) or insecurely fastened. If the plaintiff had the means of making the gate secure, and neglected them, his own neglect in the matter will be a bar to the maintenance of an action against the railway company for the injury he has thereby sustained (i/). Thus, where a railway crossed an occu- pation-way for horses and cattle, along which there was also a public footpath, and the company, not being aware of the public footpath, neglected to apply for the consent of justices for crossing the cattle- way on a level, but made their railway, and erected lofty gates on each side of the railway where it crossed the occupation-way, and gave keys of the gates to each of the adjoining occupiers who were entitled to use the occupation-rood, and the servant of the plaintiff, one of the occupiers, who was in the habit of driving the plaintiff's cows doily bookwards and forwards across the line, received o key from the compony, and ,>■ (k) Burgess v. Great jrestent Rail. Co., 32 L. T. (N. 8.) 76. (/) Toomey v. London and Brighton Bail. Co., 3 C. B., N. S. 146; 27 L. J., C. P. 39. (m) Crafter v. Metropolitan Bail. Co., L. R., 1 C. P. 300 ; 35 L. J., C. P. 132. («) Cornman v. Eattem Counties Bail, Co., 4 H. & N. 786 ; 29 L. J., Ex. 94. (o) Vose V. Lancashire and Yorkshire Bail. Co., 2 H. & N. 728 ; 27 L. J., Ex. 249. (p) Ellis V. London and South Western Bail. Co., 2 H. & N. 429 ; 26 L. J., Ex. 349. {q) Haigh v. London and North Western Bail. Co., 8 W. R. 6. m a'.>o ^•if' \ i INJURIES TO RIOIITH OF I'ROPEUTY. [CHAP. VIII. 819 lost it, and aftor that fostonod tho gate by thrusting a piooo of wood through tho Btaplo, aud, tho gate being loft open, two colts of tho plaintiff's slriiyed from hia flold along tho occupation-way, througlx tho o[)on gato, upon tlio line of railway, and wore killed by a passing train, it was hold to bo a question for tho jury whether the negligence of the plaintiff had contributed io tho accident ; and, they being of opinion that it had, it was held that the defendant was entitled to a verdict (/•)• Conventional HcrcituilvH — Acquitition by prcHcripfion. — Title by prescription is a title acquired by use and time, and allowed by law ; as when a man claims to have a thing because ho and hia ancestors, or tliey whoso estate h' alh, have had or used it from time immemorial {n) ; and im "ial enjoyment is presumed from proof going back to the extent of living memory (/). All presciiption must be either in a man and his ancestors, or in a man and those whose estate ho has, which last is called prescribing in a qiir estate. If a man prescribes in a que estate (that is, in himself and those whoso estate he liolds), nothing is claimable by this prescription but such things as are incident, appendant, or appurtenant to lands ; but, if he proscribes in himself and his ancestors, he may prescribe for things in gross. A prescription must always be laid in him that is tenant of the fee. A tenau*; for life, for years, at will, or a copyholder, cannot prescribe, by reason of the insufficiency of his estate ; for, as pre- scription is usage beyond time of memory, those whose estates commenced within the remembrance of man cannot prescribe ; and therefore the copyholder must prescribe under cover of his lord's estate, and the tenant for life under cover of tho tenant in fee simple. Estates gained by prescription are not descendible to the heirs- general, but only to the blood of that line of ancestors in whom the party prescribes. But, if he prescribes in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase (u). Nothing but incorporeal hereditaments can be claimed by prescription, such as rights of way, rights of common, &o. No prescription can give a title to lands and other corporeal sub- stances, of which more certain evidence may be had. A grant of (r) Ellit V. London and South Wettem Sail. Co., 2 H. & N. 429 ; 26 L. J., Ex. 349. («) Prieteriptio est titiiliu ex um et tempore tubstantiam eapiene ab auctori- tate legit, Co. Litt. 113 a, 113 b. £llii V. Mayor, ^., of Bridgnorth, 16 C. B., N. 8. 52; 32L. J,, C. P. 273. (0 Patteson, J., Carr v. Foster, 3 Q. B. 688. (m) 2 Bl. Comm. 64. RoU. Abr. Pek- BOBIFnOHB. C.J. i>i»sa .£;I!Jt^*-^J■ .j« SECT. 11.] RIOIITa OP PROPERTY IN LAND. 327 320 a lioenoe to got coal or minerals, which does not oust the grantor of \m right to dig for coal and minerals in the same land, is a mere profit d prendre, or incorporeal right lying in grant (jt), and may conBcquontly bo claimed by prescription ; but a claim to toko all tho coal, to the exclusion of any right in the owner of the soil to got it, is a claim to a part of the soil itself, and cannot bo claimed by proscription {>/). A prescription by immemorial usage can, in general, only bo for things Avhich moy be created by grant ; for tho laAV allows pre- scriptions only to supply tho loss of a grant. Ancient grants must ofton be lost ; and it would be hard that no title oould be made to things lying in grant, but by showing the grant. Upon imme- morial usage, therefore, the law will presume a grant, and allow such usage as evidence of a good title. Therefore, for such things OS cannot be created at this day by any manner of grant, or reser- vation, or deed, a prescription is not good {z). There can be no prescriptive right in the nature of a servitude BO large as to preclude the ordinary uses of property by the owner of the lands affected by the privilege, and to extinguish or destroy oil tho profits or produce ordinarily derivable from the soil. Where, therefore, a defendant claimed a prescriptive right, as the occupier of a brick-kiln, to dig and corry away from on odjoining close of the plaintiff as much clay as was required for the making of bricks in the brick-kiln, it was held that on unlimited claim ond demand of this noture upon the soil of the plaintiff oould not be sustained ; for it would, as claimed, enable the defendont " to take all the clay, or, in other words, to take from the plointiff the whole close" (a). To raise a presumption of a grant of an easement or profit from long-continued, uninterrupted enjoyment of the privilege, the enjoyment must have been open and notorious, and exercised OS o motter of right. The long-continued exorcise of the privilege on the one side, ond the sufferance and endurance of it on the other, must not be due to force or intimidation. If it has been exercised and enjoyed by stealth, or if the privilege has been sought for, ond has been conceded, as a kindness and motter of fovour, to be enjoyed during the pleosure of the grantor, it will fail to create a servitude {b). Where the enjoyment can be satis- factorily accounted for, and is consistent with there having been no grant or conveyance, there is no groxmd for presuming one. (x) Chetham v. WilUamtoti, 4 East, 476. Doe v. Wood, 2 B. & A. 738. (y) Wilkinton v. Fraud, H M. & W. 33. CUitfton V. Corbtf, 6 Q. B. 419. (z) Potter T. Mrth, 1 Ventr. 387. 3 CruiBe'a Digest, tit. 31, ch. 1. Att-Oen. V. Matthias, 4 E. & J. 692 ; 27 L. J., Ch. 761. (a) Clayton v. Corby, 6 Q. B. 419, 422. Wilke* V. Broadbent, 1 Wila. 63. (*) Bract, lib. 4, fol. 220—222. a28 INJURIES TO KIGHTS OF PUOPERTY. [CHAP. VIII. m I 111 321 In the case of the continued enjoyment by one man o' a right of common, or profit d prendre in the land of another, and in every user of a way, the original enjoyment must have bejn unlawful, unless the privilege had been exercised with the sanction and authority of the owner of the soil, and can only be accounted for on the supposition that a grant had been made ; and, when the enjoyment has been long continued, without interruption, a grant is presumed; but, when the enjoyment of the privilege is ac- counted for, and is consistent with the fact of there having been no grant, the presumption does not arise (c). When the property is of such a nature that it cannot bo easily protected against intrusion, and, if it could, would not be worth the trouble, proof should be given of constant, uninterrupted user and enjoyment of the privilege, with the knowledge and acquies- cence of the party interested in resisting intruders, in order to raise a presumption of a grant. According to the anoient law of presumption, the enjoyment was not uninterrupted wherever it was liad and exercised in spit 3 of the remonstrance or prohibition of the owner of the fee (d) ; and, whenever there was evidence to (c) Doe V. lieetl, 5 B. & Aid. 236. Livetty. Wilson, 3 Bing. 118. Boyle \. Tumlyn, 6 B. & C. 337 ; 9 D. & E. 437. (rf) " Iiiterrtimpi potcrit per denttutia- tioiiem et impetiatiotiem diligcntim ; ctpcr talon inlerruptionem niinijiiam arqiiirit posaukns fx tempore liberiim iencineit- tum." — Bract, lib. 4, fol. 61, cap. 22. In order to acquire a prescriptive right to do any particular thing, the right must he exorcised as of right, and ad- versely to the owner of the fee, and the enjoyment of it must be absolute and uninterrupted during the requisite period and not dependent upon a precarious permission from the owner of the estate sought to be burdened with the servi- tude, and must be such an invai^ion of the rights of the servient owner that he could maintain an action against the person exercising it at any time during the period of its exercise, until it is per- fected into a right : Delahousie v. Jiidicc, 13 La. An. 587 ; Siokenv. Appomatox Co., 3 Leigh (Va.) 318. No length of user exercised under a license from the owner of the estate will ripen into a right. The user must be in detiance of the owner of the estate, and must be exercised as of right in opposition to his right, and strictly adversely thereto. It must bo exercised with the intention and purpose of acting as owner : " Apiseimiir posses- sionem corpore et animo, nequc per se animo aut per se corpore." L. 3, sect. 1, De acq. vet amit. pass., expresses the rule in its fuU force : Sims v. Davis, 1 Cheves (S. C.) 1. No legal possession is acquired by a man walking across the land of his friend, or using a private >ray, thinking it to be a public one, or unless ho would do the act in defiance of opposition. If it is done by the express permission of the owner no right is acquired, because the user is not adverse nor as of right, nor with the intention to possess himself of it. All his acts are covered by the license, and in recognition of the title of the owner of the estate. They are not in defiance of the owner, nor do the acts invade the owner's ri;^hts, but are sub- servient to it. The rule applicable to such cases was well expressed by Wardlaw, J., in Xapier V. llKtuiiikle, 5 Rich. (S. C.) 311, thus : " When the enjoyment is in its nature hidden, or although it was apparent, there is no ready means of resisting it within the power of the servient o^vncr, assent is not implied, and the infl.uence of twenty j'ears user, therefore, not ac- knowledged." In a more recent case, when the question arose as to a right to the support of adjoining soil for the buildings of the plaintitf claimed to have been acquired by twenty years' user : Mitchell V. I'he Mayor of Rome, 49 Ga. 19. Trippe, J., very clearly and forcibly ex- pressed the rule thus: — "Statutes of limitations," said he, " apply to cases where one is in the adverse possession of property that may be clainied by an- other. The one cannot be adverse unless exercised in denial of the title, and in derogation of the right of another. It cannot be adverse to mother unless he has a right of action on account of a wrong done him.' ' See also McGregor v. Waitc, 10 Gray (Mass.) 75 ; Watkitu v. Peck, 13 N. H. 360 ; Edson v. Munsell, 10 Allen (Mass.) 557; Wallaee v. Fletcher, SECT. II.] RIGHTS OF PliOPKRTY IN LXSP 329 show that the user and enjoyment were had and exercised by permission, and grace and favour, there was no user and enjoy- ment as of right, and no prescriptive title could be gained thereby, however notorious and long continued might have been the user and enjoyment (e). The general principle with regard to prescriptive rights founded on the presumption of a grant is, that a grant will not be presumed against an ignorant man ; and, therefore, if an easement or profit a. prendre has been enjoyed on land let on lease, the landlord is not to be prejudiced in his rights, and the inheritance burthened, through the idc/ies or acquiescence of the tenant in matters affect- ing the inheritance, without the knowledge, and privity, and sanction of the landlord (/), "The foundation," observes Lord 30 N. H. 163 ; Trace;/ v. Atherton, 36 Vt. 503 ; School histrivt v. Lynch, 33 Conn. 334. Under the modern doctrine, all species of title.s, the acquisition of which de- pends upon user iind enjoyment, may be ucquirc'il by prescription. Thus, in Alves V. Henderson, IG B. Mon. (Ky.) 131, it was held that the uninterrupt'jd enjoy- ment by one adversely of land belong- inf? to the public for thf period of twenty years, gave him a valid right thereto: Vhiirch V. Meeker, 34 Conn. 421 ; Xichola V. Jiuston, 98 Mass. 39. Eiit no right can be acquired against an estate, unless the owner is in a posi- tion to resist it : Napier v. Ilulwinhte, 5 Rich. (S. C.) 311 ; Mitchell v. The Mayor of Jloiiie, 49 Ga. 19. Therefore, if the owner is under any legal disabilities that prevent him from asserting his rights, as if he is a minor {Meham v. I'utrick, 1 Jones (N. C.) 26; Watkins v. I'eck, 13 N. H. 360), a married woman {McGregor v. Waite, 10 Gray (Mass.) 75), or an insane person (Edson v. Munsell, 10 Allen (Mass.l 557), no prescriptive right can be acquired except by a uuer for the requisite period after the disability ceases to exist. So, if the servient estate is in the p<-88e88ion of a tenant for life {McGregor v. Waile, ante ; Wood v. Veal, 5 B. & S. 454 ; Harper v. Charles- vorth, 4 B. & G. 574), or for a term {Jl'ood v. J'cal, ante), no right can bo ac- qtiired against the estate which was com- menced during the tenancy. In all cases where the right is claimed by prescription, the exercise of the right for the period requisite for it to ripen into a title must be continuous and un- broken. .By this, it is not meant that the user must be constantly exercised, but that it must be as continuous as the right claimed. Thus, a person in order to acquire a right of way by prescrip- tion over another's land, for the pur- poses of drawing wood, hay, or other crops, need not cross the lauds every day in the year, bat only so often as his neccEsity or convenience requires. Ho need not go there more than once a year for such purposes, but his user must bo commensurate with the right claimed ; and the right will be measured by the user, and will not exist for any other purpose or to any greater extent : Brooks v. Curtis, 4 Lans. (N. Y.) 283 ; Atwater V. Jiodflsh, 1 1 Gray (Mass.) 152 ; McCallum v. Gcrmantoun Co., 54 Penn. St. 40 ; Horner v. Stilwcll, 35 N. J. 307 ; Koyes V. Morrill, 108 Mass. 307; Sltles v. Hooker, 7 Cow. (N. Y.) 266 ; Rexfordv. Marquis, 7 Lans. (N. Y.) 251. Thus, a person by using a waterway to bring goods to a tavern, until the user has ripened into a right, is restricted to the use and purpose for which the right was acquired, and it would only exist for the tavern : McCallum v. Germantown Co., 64 Penn. St. 40 ; so a person acquir- ii)g a right of way for the drawing of wood from a certain lot, can only use it for that purpose, and the right ceases when the wood is all cut from the lot : Atwater v. Modjish, ante; so where a right of way to draw wood across another's land during the winter months, it is restricted to that season and pur- pose, and cannot bo used for that pur- pose du ' 'jig the summer mouths, nor for any other purpose at any time : Brooks V. Curtis, ante ; Wright v. Moore, 38 Ala. 693 ; so, a person who erects a dam of a given height which, if main- tained in a tight condition, would flood the land of an upper owmer, cannot by using the dam in a leaky condition for the requisite period acquire the right to flood the lands by rendering the dam tight : Stiles v. Hooker, ante. {e) "Si autem precaria fuerit et de gratid, qua! tempestive revocari possit vel intempestive, ex totigo tempore non acqui' riturjus." — Bract, lib. 4, fol. 221. (/) See the observations of Lord Wynford, Benest v. Fipon, 1 Knapp, P. C. 70. Davies v. Stephens, 7 C. & P. 570. J)eeble v. Lineham, 12 Ir. C. L. R. 16. "Si autem fuerit teisina clan' w S' if I i i If ]|i: 330 INJURIES TO RIGHTS OF PROPERTY. [CHAI . VIII. Ellenborough, " of presuming a grant against any party is, that the exercise of the adverse right on which such presumption is founded was against the party capable of making the grant; and that cannot be presumed against him, unless there was some 322 probable means of his knowing what was done against him " (g) . But, when the user and enjoyment are had and exercised under circumstances of notoriety, a jury may infer the landlord's knowledge and acquiescence in such user and enjoyment. Thus, where the lessees of a fishery had for sixty-four years been in the constant habit of landing their nets openly on a river-bank in the occupation of a tenant, and had from time to time sloped and pared the bank, and exercised various other acts of owner- ship upon the land, it was held that a jury was justified in inferring that the landlord knew of and acquiesced in the enjoy- ment of the easement (h). So, where there bad been an unin- terrupted enjoyment for thirty-eight years of the free access of light and air to windows over and across land held on lease, it was held that the landlord's knowledge of and acquiescence in the enjoyment of the visible and apparent easement was fairly to be presumed, in the absence of evidence to the contrary (i). If the user and enjoyment have been had and exercised with the BufEerance and permission of the tenant, but in spite of the remonstrance, protest, or objection of the owner of the fee, no right can be gained by such an enjoyment; for there can be no pre- simiption of a grant under such circumstances. Proof of immemorial enjoyment of the privilege cloimed was, in ancient times, essential to the legal presumption of a grant ; but for a long series of years before the passing of the Prescription Act, judges were in the habit, for the furtherance of justice and the sake of peace, of leaving it to juries to presume an ancient grant of an easement or profit d prendre from an uninterrupted enjoyment of the privilege as of right for twenty years, adopting that period by analogy to the Statute of Limitations. Conventional servitudes — Acquisition — The Prescription Act. — The uninterrupted enjoyment for twenty years of an incorporeal right, from which juries were allowed to presume an ancient grant, was not a bar or title in itself ; for, if the commencement of the enjoyment within what was called the period of legal memory could be shown, the presumption of an ancient grant in times long since passed away was rebutted, and the right defeated. To remedy this inconvenience, and make that period of enjoyment of destina, icilicet in ahsentid dominorum vel illia ignorantibus, et, »t seirent, essent prohibituri, licet hoe Jiat de consensu vel disiimulatione ballivorum, valere non «*«*#<."— Bract. Ub. 4, fol. 221 ; lib. 2, fol. 52. ig) Daniel v. North, 11 East, 374. Buneofn v. Cooper, 6 B. & 0. 701. (h) Gray v. Bond, 6 Moore, 534. (t) Crott V. Lewit, 2 B. & G. 686. r SECT. 11.3 RIGHTS OP PROPERTY IN LAND. 331 an incorporeal right a bar or title of itself, which was so before only by the intervention and inference of a jury, the statute 2 & 3 Wm. 4, c. 71, was passed in the year 1832, for shortening the time of prescription in certain cases. This statute, commonly called " The Prescription Act," recites 323 (sect. 1) that the expression " time immemorial, or time whereof the memory of man runneth not to the contrary," was, by the law of England, in many cases considered to includv and denote the whole period of time from the reign of King Eichard I., whereby the title to matters which had been long enjoyed was sometimes defeated by showing the commencement of such enjoyment, which was productive of injustice ; and enacts that no claim which may bo lawfully made at the common law by custom, prescription, or grant to any riyht of common, or other profit or benefit, to be taken or enjoyed from or upon any land, except such matters and things as are therein specially provided for, and except tithes, rent, and services, shall, where such right, profit, or benefit has been actually taken and enjoyed by any person claiming right thereto without interruption for the full period cf thirti/ years, be defeated or destroyed by showing only that such right, profit, or benefit was first taken and enjoyed within the time of legal memory, but that sucl claim may be defeated in any other way by which the same was then liable to be deff^'ted ; and, when such right, profit, or benefit has been so taken und enjoyed for the full period of sixty years, the right thereto is to be deemed absolute and indefeasible, unless it shall appear tbat the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing. By the same statute (sect. 2), it is enacted that no claim which may be lawfully made at common law, by custom, prescription, or grant, to any tcay or other easement, or to any watercourse (k), or the use of any water, to be enjoyed upon, over, or from any land or water, when such way or other matter shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way, water, or other matter was first enjoyed at any time prior to puch period of twenty years, but nevertheless such claim may be defeated in any other way by which the same was then iiable to be defeated; and, when such way cr other matter shall have been so enjoyed, as afore- said, for the full period of forty years, the right thereto is to be deemed absolute and indefeasible, unless it shall appear that [k) A claim to have water kept di- verted is a claim to a watercourse within the section. Mason v. Shrewsbury and Hereford Rail. Co., L. R., 6 Q. B. 578 ; 40 L. J., Q. B. 293. V- t! ill!' mi M ■ '' iiii isr i ! li ii ij If ill: 332 INJURIES TO RIGHTS OF rROPEKTY [t'HAP. VIII. the same was enjoyed by some consent or agreement by deed or writing. The Prescription Act does not take away any of the modes of claiming easements which existed before its passing ; and therefore, 324 where, for a period of more than twenty years, extending to within a very short time before the bill was filed, there had been unity of possession of the properties of the plaintifE an ^ the defendant, but there was no evidence of there ever having been unity of title, and, before the unity of possession commenced, the access of light to the plaintifE's windows had been enjoyed as far back as living memory went, it was helc'. that the plaintiff had established his title to the access of light by proof of enjoyment from time immemorial (/). Conventional servitudes — Acqimitton — Prescription Act — Appli- cation of the Act. — Easements and profits d ])rendre cannot be claimed by user and enjoyment under the Prescription Act, unless the benefit or profit has been used, exercised, and taken for the more beneficial use and enjoyment of some neighbouring tenement. Easements and profits in gross, therefore, cannot be claimed by an occupier as such under the Act, because the claim must be " by custom, prescription, or grant," and it must be of such a nature as to be capable of being annexed to land, as being accessorial to the beneficial use, occupation, and enjoyment of landed property (/«). A right, therefore, Avhich can be of no benefit to any tenement, such as a right to cut down, and carry away and sell trees or underwood growing on a neighbour's land, or to search for and raise minerals, and carry them away and dispose of them, or a right to go upon land for recreation and amusement, cannot be prescribed for under the statute (//). The first section only applies to cases where one man claims by custom, prescription, or grant, some profit or benefit to bo take'^ or enjoyed from or upon the laud of another, and has no application to the case of a right claimed by a copyholder in his own copyhold tenement according to the custom of the manor, such as a right to dig gravel therein (o). To bring the right within the term '* easement" in the second section of the statute, it must be a right analogous to that of a right of way or a right of watercourse, and must be a right of utility and benefit, and not of mere amusement (p). In order to gain a prescriptive title from uninterrupted user and enjoyment under the first and second sections of the Pre- (/) Aynsky v. Glover, L. B., 10 Ch. 'i%Z ; 44 L. J., Ch. 623. (»j) Shuttleworth v. Le Fleming, 19 C. B., N. S. 687 ; 34 L. J., C. P. 309. (r.) Bailey v. Stephens, 12 C. B., N. 8. 113; 31 L. J., C. P. 228. Mounsey v. Iimay, 1 H. & C. 729; 34 L. J., Ex. 52. (o) Haiiiiier v. Chance, 4 De G. J. & S. 026 ; 34 L. J., Ch. 413. (p) Mounsey v. Isinay, supra. A right to lateral support is, it Bhould seem, " an easement " within the Prescription Act. See per Selbome, L. C, in JJallon V. Angus, 6 App. Cas. 740; 60 L. J., Q. B. 689. SECT. "■] RIGHTS OF PROPERTY IN LAND. ;J33 soripfion Act, it must b© proved that the enjoyment has been " as of right." It must be such an enjoyment as of right, and without interruption, as would under the old law of prescription 325 have raised a presumption of a grant (q). " The whole pur- view of the Prescription Act," observes Lord Abinger, "shows that it applies only to such rights as would before the Act have been acquired by the presumption of a grant from long user. The Act expressly requires enjoyment for different periods without interruption, and therefore necessarily imports such a user as could be interrupted by some one capable of resisting the claim. It also requires to be of right" (/•). All circumstances, therefore, tending to rebut the presumption of a grant, and to prove that no grant could ever have existed, or have lawfully been made, are admissible in evidence to show that there was no enjoyment as of right within the meaning of the statute (s). It is enough, how- ever, under the Act, to show an uninterrupted user as of right for a sufficient period, although the user was under a claim of right which might at any moment have been shown to be illegal (0. By the fifth section of the Act, it is enacted that, if the party resisting the claim intends to rely on any proviso, exception, inca- pacity, disability, contract, agreement, or other matter therein- before mentioned, or on any cause or m&Lter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation. "The greatest difficulty," observes Lord Denman, " arises from the language of the concluding paragraph of this fifth section of the Prescription Act, and more particularly from the words, *or any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment.' As all these matters are required to be specially pleaded, and forbidden to be given in evidence under a general traverse of the enjoyment as of right, it is plain that they are treated by the legislature as consistent with such an enjoyment ; and, as by the rules of pleading and of logical reasoning, every allegation by way of answer which does not deny the matter to which it is proposed as an answer is taken to confess it, we must conclude thai the legislature used the words ' as of right' in such a sense as that a party confessing the enjoyment as of right for (?) " Zoiigus usiM, nee per vim, nee clam, nee precario." — Bract, lib. 4, fol. 222. Co. Litt. 114. Bright v. Walker, 1 G. M. & R. 219. (r) Arkwright v. Gell, 5 M. ftW. 234 ; pott, p. 330. Eigg y. Lonsdale, 1 H. & N. 923; 25 L. J., Ex. 81. Earl de la IVarr v. Miles, 17 Ch. D. 535 ; 60 L. J., Ch. 754. («) Afill v. New Forest Comm., 18 C. B. 60 ; 23 L. J., C. P. 215. (0 Earl de la JFarr v. Miles, 17 Ch. D. 536 ; 50 L. J., Ch. 764. !^* % J WW 334 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. I :^i forty years, or twenty, as the case may be, may account for and avoid the effect of it by alleging, in the one case, a consent or 326 agreement, provided it be by deed or writing (see sect. 2) , and in the other, any contract, &c., written or parol (see sect. 5). It follows that the words 'as of right' cannot be confined to an adverse right from all time, as far as evidence shows ; for, if they were so confined, such enjoyment, once confessed, could not be avoided by replying that it was held by contract which is not adverse. Again, as the legal right to a way cannot pass except by deed, it is plain that the words * enjoyment as of right* cannot be confined to enjoyment under a strict legal right ; for then a * consent or agreement' in 'writing,* not under seal, of which the second section speaks, could not account for such enjoyment. The words, therefore, must have a wider sense ; and yet they must have the same sense as the words * claiming right thereto,* in the second section, otherwise there will be incongruities in the con- struction of the Act. It seems, therefore, that the enjoyment as of right must mean an enjoyment had, noi secretly, or by stealth, or by tacit sufferance, or by permission asked from time to time, on each occasion, or even on many occasions, of using it, but an enjoyment had openly, notoriously, without particular leave at the time, by a person claiming to use it, without danger of being treated as a trespasser, as a matter of right, whether strictly legal by prescription and adverse user or by deed conferring the right, or, though not strictly lawful, to the extent of excusing a trespass, as by a consent or agreement in writing, not imder seal, in case of a plea for forty years, or by such writing or parol consent or agreement, contract, or licence, in case of a plea for twenty years. According to this view of the Act, a licence in writing must be replied to a plea of forty years* enjoyment, if it covers the whole time ; and the same of a parol licence, in case of a plea for twenty years" («<). The proviso in sect. 1 of the Prescription Act, that the right shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agree- ment expressly made or given for that purpose by deed or writing, supposes that there may be an enjoyment as of right, though by consent or agreement ; but that applies to oases where the title to the dominant and servient tenements is such that the enjoyment could be as of right within the statute, not where from unity of possession or otherwise it necessarily cannot be. The enjoyment must be of right against the land, not against the individual («). (m) Per Cur., Ttekle v. Brown, 4 Ad. & E. 382. (x) Warhurton v. Parke, 2 H. & N. 64 ; 26 L. J., Ex. 299. SECT. II."! RIGHTS OF PROPERTY IN LAND. 335 A user and enjoyment which does not give a valid title as 327 against the owner of the inheritance cannot give a title as against the lessee and the persons claiming under him ; for no title at all can be gained by a uwer and enjoyment which does not give a valid title against all persons having estates in the land over or upon which the easement has been enjoyed {>/). Where a tenant enjoyed a right of common appurtenant to a tenement rented by him over land which was posc^ssed and occu- pied by his landlord as tenant for life, it was held that, as the landlord could not have an enjoyment as of right against him- self, so neither could his tenant. All the tenant's rights were derived from his landlord, whatever be enjoyed being enjoyed by grant from the latter ; and such an enjoyment is not an enjoyment as of right within the statute (z). Conventional sen'itiules — Acquisition — Prescription Act — Rights of way. — If there is a ten years' enjoyment of a right of way, and then a cessation for ten years under a temporary agreement for a different and substituted way, there may be a sufficient enjoyment of the original right for twenty years to make it indefeasible under the statute (a). Enjoyment of a way over land held on lease does not give any right of way as against the reversioner, unless the enjoyment has been had with his knowledge and acquiescence, so as to be an enjoyment ** as of right." Thus, where a stranger entered on the land of the reversioner in the occupation of his lessee, and tra- versed the land with carts and ^ /i-ses in the exercise of an alleged right of way, it was contended that the trespass, being accompanied with a claim of right, would, if it continued unopposed by the reversioner, be evidence of a right of way as against him at some future period. "But acts of this sort," observes Taunton, J., " cannot operate as evidence of right as against the reversioner of land demised to tenants, because the reversioner, during the demise, has no present remedy by which he could obtain redress for such an act. He could not maintain an action of trespass in his own name, because he was not in possession of the land, nor an action on the case for injury to the reversion, because in point of fact there was no such permanent injury as would be necessarily pre- judicial to it: as, therefore, he had no remedy by law for the wrongfid act done by the defendant, the act done by him, or any other stranger, would be no evidence of right as against the plaintiff, so long as the land was in the possession of a lessee." (y) Bright v. Walker, 1 0. M. & R. 220. Wimhip v. Hudspeth, 10 Exch. 7 ; 23 L. J., Ex. 268. WiUon y. Stanley, 12 Ir. C. L. R. 356. (4 Warburton v. Parke, 2 H. & N. 64 ; 26 L. J., Ex. 298. - " L. R., 4 Gh ( ■ .rses arising from enjoyment is the same, whether they are natural or artificial, cannot possibly be sustained. The right to artificial watercourses, as against the party creating them, (g) Bealey v. Shaw, 6 East, 214. Wright V. Williams, 1 M. & W. 77. Carlyon v. Lovering, 1 H. & N. 789. (A) Baxcndale v. McMurray, L. R., 2 Ch. 790. A. (i) Magor v. Chadwick, 11 Ad. & E. 585. {k) Gaved v. Martyn, 19 C. B., N. S. 732 ; 3i L. J., C. P. 353. (/) Ivimeit V. Stoiker, L. R., 1 Ch. 396; 35 L. J., Ch. 467. Ui| .'M8 INJURIES TO RIGHTS OP PROPERTY. ' [CITAP. VIII. Mil fc IM 330 depends upon the oliaracter of the watercourse, whether it is of a permanent or temporary nature, and upon the circumstances under which it was created (/«). The flow of water for twenty years from the eaves of a house does not give a right to the neigh- hour to insist that the liouso shall not he pulled down; or altered so as to diminish the quantity of water flowing from the roof. The flow of water for twenty years from a drain made for agricultural improvements does not give a right to the neighbour, so as to preclude the proprietor from altering the level of his drains for the greater improvement of the land. The state of circumstances in such cases shows tliat the one party never intended to give, nor the other to enjoy, the use of the stream as a matter of right («). So the user by one canal company of the surplus water of another canal company for more than forty years will give no right to the last-mentioned company for its continuance, if a grant for that purpose by the first-mentioned company would have been ullm If a steam-engine or sough is constructed and used by the owner of a mine to drain it, and the water pumped up by the engine, or collected by the sough, flows in a channel to the estate of the adjoining landowner, and is there used for agricultural purposes for twenty years, no right to the water in perpetuity can be gained from any such user, so as to burthen the owner of the mine and his assigns with the obligation of keeping up the steam- engine or the sough, and pumping or collecting water for the benefit of the adjoining landowners. In cases of this sort no right is acquired as against the owner of the property from which the course of water takes its origin, though as between the first and any subsequent appropriator of the watercourse itself such a right may be acquired (^;). If a farmer, by some system of drainage, draws off the rainfall from his lands, and pours it into the plaintiff's ditch, and so creates a new and artificial supply of water, and the latter uses the water for more than twenty years, and after that the farmer adopts a new mode of drainage, and in so doing cuts off the artificial supply of water, the plaintiff has no remedy for the loss of the water, the supply being of a temporary character, and the circumstances showing that the one party never intended to give, nor the other to enjoy, the use of the artificial drainage- water, as a matter of right {q). (m) Sutdife v. Doolh, 32 L. J., Q. B. 136. Gated v. Martyn, supra. Rameshur Pershad Narain Singh v. Kooiy Behari Tattuk, L. B., 4 App. Gas. 121. («) Per Cur., TFood v. Tfaud, 3 Exch. 779. Mason v. Shreicshiiry and Hereford Rail. Co., L. R., 6 Q. B. 678 ; 40 L. J., Q. B. 293. Seo alao Chamber Coll. Co. v. Ilopuood, 32 Ch. D. 549. («) Staffordshire and V'orcestershire Canal Co. v. Birmingham Canal A'ari- gation, L. R., 1 H. L. 264. (/») Arkwright v. Gell, 6 M. & W. 232. (q) Greatrex v. Hay ward, 8 Exoh. 291. Rawatron v. Taylor, 11 ib. 369. SECT, ir.] RIOIITS OF PROl'EKTY IN LANP. 839 331 Coiivcitfional scmfiKim — Arquivthn — PtmcHption Ad — Itiglit of support. — A right to lateral support for a building froiu adjoining land may l)o acquired by twenty years' uninterrupted enjoyment ; and it is bo acquired, if the enjoyment is p<'aceablo and without deception or concealment, and so open that it mxist bo known that some support is being enjoyed by the building (r). Conventional servitutlcn — Acquisition — Ptrxcription Act — Houhch renting against each other. — If two houses are built against each other with separate and independent walls resting upon separate and independent foundations, it was formerly held that one houso has no right of support from the other, even if it has received that support for twenty years ; but in a modern case it has been decided that where ancient buildings belonging to different owners adjoin each other each building has a right of support from the other, which can be claimed under the Prescription Act («). Conventional servitudes — Acquisition — Prescription Act — Right to a boundary fence. — We have seen that the presumption of legal title by grant to easements and incorporeal rights in the lands of others is founded on adverse enjoyment of such rights from time imme- morial. But, where the enjoyment can be satisfactorily accounted for, and is consistent with there having been no grant, there is, as we have seen, no ground for presuming one. In the case, therefore, of proof of enjoyment by one landowner of a fence erected by his neighbour, and repaired, as occasion required, by the latter, there is no proof of such adverse enjoyment as raises a presumption of a grant of the benefit of the fence by one landowner to the other. Every man is bound by law to take care that his beasts do not trespass upon the lands of his neighbours. He may prevent their doing so, either by employing servants to keep them within the limits of his own land, or by enclosing his land with fences, so that the cattle cannot escape. The making of a fence, therefore, between his own land and that of his neighbour, does not raise any inference that the fence was intended for the benefit of his neighboiir, although the fence prevents his neighbour's beasts from trespassing as well as his own ; for it is for his own benefit to prevent his beasts from trespassing upon his neighbour's property {t). Conventional servitudes — Acquisition — Prescription Act — Right to the access of light. — The third section of the Prescription Act pro- vides that, where the access and use of light to and for any dwelling- house, workshop, or other building (tf), shall have been actually (r) Ballon v. Angut, L. R., 6 App. Ch. D. 739 ; 63 L. J., Ch. 40. And see Cas. 740 ; 60 L. J., Q. B. 689. ante, p. 30G. (») Lemaitre v. Davis, 19 Ch. D. 281 ; (<) Jio'/Ie v. Tamli/n, 6 B. & C. 337. 61 L. J., Ch. 173. Tune V. 2'irsloii, 24 {(t) Heo Hinrhv. Br riiiii(i,post,p.S33. 7.2 r 5 I I ek&-^-. 340 INJXJRIES TO RIOIITS OV TROPRRTY. [ctTAP. VIII. lii, li Pll-: li 332 onjoyod therewith for the full period of twenty years without intomiption, the right thereto shall bo deemod ahsoluto and iiide- foosiblo, any local custom or usoge to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement («)» expressly made or given for that purpose, by deed or writing. " Upon this section it is material to observe," soys Lord Westbury, "that the right to what is called *an ancient light ' now depends upon positive enactment. It is matter Juris 2)ositivi, and does not require, and therefore ought not to bo rested on, any presumption of grant or fiction of a licence having boon obtained from the adjoining proprietor" {x). " This section," observes Parke, B., "is differently worded from the others, and the acquisition of right to light is much favoured, as a far less time gives an indefeasible right ; nnd the proviso in the 7th section (//), which excludes tho time when a person, otherwise capable of objecting, is an infant, idiot, tion compos, feme vovcrfr, or tenant for life, from other periods of computation, includes it in t'lis. It also differs from tho 2nd section, in not requiring that t iie enjoyment should be by a person ' ctlairaing right ' in express terms. What, then, is the enjoyment contemplated by the 3rd section ? Wo think it clear, notwithstanding the absence of the words in the 2nd section above referred to, that it converts into a right such an enjoyment only of the access of light over contiguous land as had been had for the whole period of twenty years, in tho character of an easement, distinct from the enjoyment of the land itself, and that tho statute puts this species of negative easement, as it has been termed, on the same footing, in this respect, as those positive easements provided for by the other sections, all of which, after long enjoyment as easements, are invested with the quality of rights. In tho first place, the access of light, under this section, must have been enjoyed for twenty years without interruption — not in the sense of an uninterrupted or continuous user, but without such interruption as is mentioned in the subsequent section — that is, an interruption submitted to for one year after the party shall have had notice thereof, and of the person making or authorizing the same to be made (z). From this it follows, that the legislature contemplated such an enjoyment as could be interrupted by the adjoining occupier, at least during some part of the time" («). Where, therefore, the owner in fee of an ancient house and tho land surrounding it, having enjoyed the 333 access of light to his windows across such adjoining land, his («) See Ben-leu v. Atkinson, 13 Ch. D. 2S3; 49L. J., Ch. 153. (x) Tapling v. Jmet, 11 H. L. C. 290; 34 L. J., C.P. 344. ( {1} Willes, J., Barliiig v. Clue, 4 F. & F. 334. («) HcHins V. Vtrni'i/, 13 Q. B. D. 304 ; 63 L. J., Q. B. 4a0. x) Bailea v. Appleyard, 8 Ad. & E. 165. {y) Tickle v. Bivwn, 4 A. & E. 382. Briyht V. Walker, 1 Cr. M. & R. 219. Monmouth Canal Co. v. Harford, I C. M. &R. 614. \w SECT. II.] RIGHTS OF PROPERTY IN LAND. 045 ^ 337 the claim or matter to whicli such period may relate shall have been, or shall be, brought in question. It was formerly held that the enjoyment, in order to give a right under the statute, must be up to the time of the commencement of the suit (s) ; but, when a prescriptive right hos once been gained by twenty or thirty years' uninterrupted enjoyment as of right, it is not lost again by mere non-user ; for it does not follow that a man has lost his right merely because he has not thought lit to exercise it. An exercise of the right once a year down to the time of the commencement of the action is not, therefore, essential to the proof of a prescriptive title under the statute. " The intention," observes Willes, J., " was to give enjoyment under the Act the same effect as the evidence which would sustain a prescriptive claim before the Act, except that the terminus of the statutory enjoyment must be a suit or action which discloses the nature of the claim, and gives an opportunity of litigating it. Tbe evidence, therefore, to sustain a prescriptive claim need not come down to the commencement of the suit, nor to any definite period " {a). Conventional serviiudes -Acquisition — Prescription Act — D/s- ahility. — The seventh section of the Prescription Act provides that the time during which any person otherwise capable of resisting the claim shall be an infant, idiot, »o» compos mentis, feme covcrte{h), or tenant for life, shall be excluded from the computation of the respective periods, except where the claim is thereby declared to be absolute and indefeasible. The claim is by the statute declared to be absolute and indefeasible in those cases where there has been an enjoj'ment as of right, and without such interruption as is men- tioned in sect. 4, of a way, watercourse, or use jf water, or other ease- ment, for the term of forty years, and of a profit a prendre for the term of sixty years, and of the access and use of light and air to any dwelling-house, workshop, or other building for twenty years, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing. Where a defendant claiming a prescrintive right to the enjoy- ment of a profit « prendre in the soil of ^he plaintiff showed an uninterrupted enjoyment for twenty years before a life estate, and during its continuance, and for six years after its determination up to the commencement of the action, and the question was whether. I' (z) Ward V. Robins, 16 M. & W. 242. Battuhillv.Recd, 18 C. B. 705; 25 L J., C. P. 290. Parker \. Mitchell, 11 Ad. & E. 788. (a) Cooper v. Hubbuck, 12 C. B., N. S. 456 ; 31 L. J. 0. P. 323. Ward v. Ward, 7 Exch. 838. (A) There seems to be little doubt that this exception is done away with (as in the case of the Statute of Limitations) by tlie Married Women's Property Act, 1882. ^eeante, p. 269. 346 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. Ml 1 I ■l- 338 that enjoyment was sufficient, or whether the thirty years must be the actual thirty next before the commencement of the action, it was held that tlie two sections of the statute, — viz. sect. 4, enacting that the respective periods of enjoyment should be deemed and taken to be tlie period next before some suit or action, and sect. 7, providing that the time during which any person capable of resist- ing the claim was tenant for life, &c., should be excluded in the computation, — must be read together, so that the period is thirty years next before the action, excluding in the computation of those thirty years any tenancy for life (c). If the plaintiff sets up a tenancy for life, he excludes the time of that tenancy, and drives the defendant to show thirty years' enjoyment, either wholly before the tenancy for life, if it is still subsisting, or partly before and partly after, if it is ended. But it has been said, " What if there had been an interruption for two years during the tenancy for life, and within thirty years before the action ? is the plaintiff to be deprived of the benefit of such interruption ?" The answer is, " No : although the tenant for life cannot, by acquiescence, burthen the estate, he may, by resistance, free it ; and, if the plaintiff chooses to avail himself of that resis- tance, he may traverse the enjoyment as of right for thirty years, and show the interruption," The defendant will not then be allowed to give the tenancy for life in evidence, in order to avoid the effect of the interruption (d). Where there has been a thirty years' enjoyment of a profit d prendre during a tenancy for life, the tenancy for life must be specially pleaded by the reversioner, in order to exclude such thirty years' enjoyment from the computation of the prescriptive j^eriod under the statute. Thus where, in an action of trespass, the defeu' i.ant pleaded an uninterrupted user and enjoyment of a profit d prendre for thirty years under the first section, and tlie plaintiff by his replication traversed the enjoyment, and the de- fendant, at the trial, proved enjoyment for thirty years next before the action, it was held that the plaintiff was not at liberty to prove a tenancy for life during part of those thirty years, as he had not set it up by his replication (e). If a tenancj- for life during the thirty years' period is replied and traversed by the rejoinder, the defendant may insist that the thirty years' enjoyment alleged in the plea is made up of time preceding and following the tenancy for life (/). Conventional servitudes — Acquisition — Prescription Act — Disabi- lity — Lands demised for life or years. — By sect. 8 of the Prescription m -I c) Clayton v. Corby, 2 Q. B. 824. \d) Clayton v. XJorby, 1 Q. B. 825. e) Pye v. Mumford, 11 Q. B. 675. J) Clayton v. Corby, 2 Q. B. 813. SECT. II.] RIGHTS OF PROPERTY IN LAND. 347 339 Act, it is expressly enacted that, " when any land or water upon, over, or from which any such way or other convenient water- course, or use of water, shall have been or shall be enjoyed or de- rived, hath been or shall be held under or by virtue of any term of life, or any term of years exceeding three years from the granting thereof, the time of the enjoyment of any such way, or other matter as herein last before mentioned, during the continuance of such term, shall be excluded in the computation of the said period of forty years, in case the claim shall within three years next after the end or sooner determination of such term be resisted by any person entitled to any reversion expectant (g) on the determination thereof." By the ancient law of prescription, whenever it appeared that the land over or upon which an easement of this sort had been enjoyed was in the occupation of a tenant for life, or tenant for term of years, during the ^^vhole period of the enjoyment of the privilege, the presumption of a grant was rebutted and the ease- ment extinguished, however long and notorious might have been the user and enjoyment, and although the owner of the fee was fully aware of all that had been done upon the land (A) , and had made no protest against, or objection to, the enjoyment of the privilege. But since the Prescription Act, if the privilege has been enjoyed without such interruption for forty years, or as far back as living memory will go, the right cannot be defeated merely by showing that the land was on lease during the whole period of enjoyment. It must be shown that the reversioner, Avithin three years after the determination of the particular estate, resisted the claim to the easement (i). " The period, during wliich the land over which the right is claimed has been leased for a term exceeding three years, is not, under sect. 8, to be excluded from the computation of a twenty years enjoyment. Sect. 7 excludes certain times, including that of a tenancy for life, but not that of a tenancy for years, from the computation of the 'periods' thereinbefore mentioned; and a twenty years' enjoj'ment is one of those periods. But sect. 8 provides for the exclusion of certain other times, among which is a tenancy for more than three years, not from the periods thereinbefore mentioned, but from one particular period only, expressly men- tioned, namely, that of an enjoyment for forty years " (k). ■K (jr) A remainderman is not a person entitled to .] • and dfordori it is so, if the claim is upon a place beyond the limits of the parish (.r). Where a custom for all the inhabitants of a particular town to walk and ride over a close of arable land at all seasonable times in the year was claimed, it was held that " seasonable time " was partly a question of law and partly one of fact, and that when the corn was standing was not a seasonable time (//). The inhabitants of a vill or parish cannot as such claim by custom to have a profit u prendre from the soil of another (s). Therefore, a custom for all the inhabitants occupying lands in a particular district to take drift sand or stones from a close con- tiguous to tlio sea-shore, for the mending of their roads, cannot be supported, as the sand, when it drifts on the close from the beach, becomes part of the soil of the close {a). Neither can the inhabitants of a parish claim a right by custom to angle and catch fish in another's pond, although the claim is confined to a right to catch them, without setting up a right to take tiiera away; for such a right, vested in a multitude of persons, Avould be destruc- tive of all the fi8h(/>'). But a claim by the inhabitants of a village to take esto^■ers in a royal forest, if founded on a grant from the Crown, is good ; for, as the Crown has power to create corpora- tions, a grant by the Crown to a class of persons is valid ; and for the purpose of the validity of the grant, sach persons will be con- sidered a corporation quoad the grant ; for grants by the Crown in derogation of its forestal rights are construed liberally for the subject (('). So, as the land between ordinary high-water mark and low-water mark belongs to the Crown, in the absence of proof of a grant of such land to a lord of a manor or to a private per- son (d), various customary and prescriptive rights and privileges (0 Ifallv. Xuttbigham, 1 Ex. D. 1 ; 45 L. J., Ex. 50. («) Ih/ce V. 11(111, I Macq. 305. Jidl V. jnmMl, Willc's, 202. (jr) Soivcrhy v. Coleman, L. R., 2 Ex. 96 ; 3G L. J., Ex. 57. As to squares in London, see Tnlk v. Metropulitan Board of Works, L. R., 3 Q. B. 94, 682 ; 37 L. J., Q. B. 272. {y) Bell V. Warddl, Willes, 202. {z) Gateward's case, 6 Rep. 59 b. Zord Jtivers v. Adams, 3 Ex. D. 361. Niilly. Duke of Devonshire, 8 App. Cas. 135. (a) Blewett v. Trcgonning, 3 Ad. & E. 554 ; Alt. -Gen. v. Mathias, 4 K. & J. 579 ; 27 L. J., Ch. 761. Constable v. Xicholson, 14 C. B., N. S. 230 : 32 L. J. C. F. 240. {h) Bland v. Zipscombe, 4 El. & Bl. 713, note (c). But see Goodman v. Mayor of Saltash, L. R., 7 App. Caa. 633 ; 62 L. J., Q. B. 193. {e) Willingalev. Maitland, L. R., 3Eq. 103 ; 36 L. J., Ch. 64. Chilton v. Cor- poration of Zondon, 7 Ch. D. 735 ; 47 L. J., Ch. 433. Lord Jtivers v. Adamt, 3 Ex. D. 361. (r/) Post, p. 437. m m w 350 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. 1 342 over the sea-shore have grown up and been acquired by the public, and by communities and private individuals, by reason of immemorial usage and oujoyment. Whore an action of trespass was brought against n defendant for digging in the plaintiff's land, and the defendant pleaded that the /ocks in quo was four acres of land adjoining the sea, and that all the men of Kent, from time immemorial, have used when they have fished in the sea to dig in the land adjoining, and pitch stakes for hanging their nets to dry, it was held that s\ich a custom, confined to the sea-shore, might be good ; for, observes Clarke, C. J., " If I have land adjoining the sea, so that the sea ebbs and flows on my land, when it floAvs every one may fish in the water which has flowed on my land, for then it is parcel of the sea, and in the sea every one may fish of common right ; and, when the sea has ebbed, then in this land which was flowed before, peradventure he may justify his digging, for this land is of no great profit " (c). The general doctrine, that a right to take a profit in the soil of another cannot by law rest on custom, is founded on the notion that such an interest must, for its existence, have some person in whom it is vested, and that a fluctuating body of persons, which has no entirety or permanence, cannot take that interest which by supposition is immemorial and permanent, because such a body, from its nature, cannot prescribe for anything. Necessity, how- ever, controls this, and creates certain exceptions in the case of rights of common in manors, and of the stannary customs of Corn- wall in respect of the right of digging and searching for tin. Conventional servitudes — Acquisition — Manorial customs (/). — Rights of common, claimable by the copyhold or customary tenants of a manor in the demesne lands of the lord of the manor (f/), illustrate both the rule, that a profit d prendre is not claimable by custom, and the exception to that rule. Thus the right of common of pasture in itself is an interest in land — the taking of a profit of the soil — and properly matter of prescription. If the copyholders of one manor will claim it in the wastes of another manor, they must do so by prescribing in the name of their lord, who, in the eye of the law, by reason of his estate, has such a per- manence as enables him to prescribe ; but, if they claim it in the {e) 8 Edw. 4, 1 9. Bro. Abr. Customs, 46. (/) Proof of entries on the rolls of a manor court are admissible in evidence to prove manorial customs {Dammerell V. J'rotheroe, 10 Q. B. 20). A present- ment in a manor court, setting forth the bounds of a manor, is likewise evidence of suuh bounds, although some portion of the document has been cut off, if there is no reason to suppose that that part contains any evidence to the con- trary of the part produced. When an ancient manor-book is offered in evi- dence, it must be proved that it comes from the proper custody. £ia»s v. Jiees, 10 Ad. &E. 161. (ff) GatewartTsease, 6 Co. 60 a. Grim- stead V. Marlmo, 4 T. R. 719. Auitin v. Amherst, 7 Ch. D. 689 ; 47 L. J., Ch. 467. SECT. II.] RIGHTS OF PROPERTY IN LAND. 351 343 lord's wastes, they cannot prescribe in their own names and rights, by reason of the want of permanence ; nor can they in their lord's name, as he cannot claim common in his own land ; they are therefore, from necessity, allowed to clnim it by custom (//). The necessity grows out of the original compact between the lord and the customary tenants, when they received permission to cultivate for their own benefit, on condition of the render of certain services, certain portions of the lord's land. That compact included the right of common on the lord's waste ; and the law will not suffer that right to want a legal character, and so be without the means of legal enforcement, though at the expense of strict legal rea- soning («■). A custom to dig sand and gravel in the waste of a manor for the repair of a dwelling-house, when out of repair, may be sup- ported {k). But a privilege claimed by the customary tenants of a manor having gardens, parcels of their customary tenements, to dig and carry away turf from the waste for the improvement of their garden-walks, or for making and repairing banks or mounds of grass on their customary tenements, has been held to be bad(/). A custom in a manor, that the copyholders of inheritance may, without licence from the lord of the manor, break the surface of their own copyhold tenements, and dig and get clay therefrom without stint, for the purpose of making and selling bricks, is a good manorial custom. It has been contended that such a custom is bad, as being inconsistent with the right of the lord, who has an interest in the soil, and that the custom extended to taking away the soil itself, which the copyholder could, even by custom, have no right to do. " We are," however, observes the court, " unable to draw any sound distinction between a custom for copyholders to take all the timber or trees (w/), or all the minerals in their own copyholds, and a custom to take clay. It appears to us, that the cases of profits a prendre or easements on the waste of the lord, or in alieno solo, have no application to the present question. A copy- holder may, by custom, not only have a possessory, but a proprie- tary, right in the trees and minerals in his own copyhold tene- ment. In the case of minerals, the taking them is, in effect, a taking of a portion of the corpus of the copyhold tenement. There appears to be no doubt but that a copyholder of inheritance may not only, by custom, work old mines already opened, but that he may also, by custom, dig within his tenement for new ones, and, ^ CO I [h) FoUton V. Craehroode, 4 Co. 369. Heydon and Smith's case, 13 Co. 67. (■») Rogers v. Brenton, 10 Q. B. 26. \k) Peppin v. Shakspear, 6 T. R. 748. m misoHV. Willes, 7 East, 121. Un) See Bkwett v. Jenkins, 12 C. B., N. S. 16. 852 INJURIES TO RIGHTS OF PROPF.RTY. [ciTAr. VTII. 344 if successful, work them " (h). Tlio right may exist, in its most extensive form, to sell the produce for profit, or, in a more restricted form, to use the coal, &o., for their own private purposes only (o). A claim on the part of the lord of a manor, founded on the custom of tho manor, of an unlimited and unrestricted right to enclose and confer in severalty upon any person, from time to time, such portions of the waste as he in his discretion may think fit, cannot be supported, as it is utterly inconsistent with tho existence of any right of common ; for the lord might enclose the whole of <^ vaste, and so annihilate the rights of the commoners. A custom claimed hy the lord of the manor, or his tenants, to dig coal-pits in tho enclosed freehold lands of the manor, when and as often as thoy please ; to lay their coals, when got, on any part of tlie lands of the customary tenants, near to tho coal-pits, at any time of the year thoy please ; and to let them lie on such lands as long as they please, is uncertain and unreasonable, and therefore void ; for it might deprive the tenant of the whole benefit of his land (p). Couveutioual scrrifiuks — Acqumthn — The rights of tiiiboiniders in Corn wall are founded on custom. The right seems to have originated in each instance in a virtual contract, as in the case of rights of common. When the lord, or owner of waste, uninclosed and uncultivated land, would not search for and work tin himself, or devote his waste exclusively to other purposes by inclosure, he has permitted the tinner to enter on the waste and work for and get tin, on condition of the render to him of a certain portion, fixed by custom, of the produce of the tin mine. Here, as in the instance of o right of common, the thing is in its nature to be claimed by prescription only ; but they who have it, and ought to have it, in justice, cannot prescribe for it ; from necessity, there- fore, that the right may not be defeated, they are allowed to claim it by custom (q). The estate or interest of the tinbounders is of an anomalous character ; they have a mere chattel, passing to executors, not to lieirs; and they lose all their interest if they cease to work the mine (r). If the tinbounders abandon the mine, and the owner retakes possession, he will be entitled to any ease- (h) Salishun/ {Jfarquis of) v. Gtad- Btoiie, G H. & N. 129 ; 9 H. L. C. 692 ; 30 L. J., Ex. 3 ; 34 lA. C. P. 222. See Lingwood v. Gyde, L. R., 2 C. P. 72 ; 36 L. J., C. P. 10. (o) Portland {Duke of) v. Hill, L. R., 2 Eq. 766 ; 35 L. J., Ch. 439. {p) Byoadbent v. WUks, Willos. 363. miton V. Earl Granville, 5 Q. B. 726. Blacken v. Bradley, 1 B. & S. 140 ; 31 L. J., Q. B. 65. But SCO, per L. C. and Lord Chelmsford, in Wnkejield v. Duke of Buccleiwh, L. R., 4 H. L. 377. And a (frant to that effect would be ffood, S. C. and Rowbotham v. Wilson, 8 H. L. C. 359 ; 30 L. J., Q. B. 965. . (7) Rogers v. Brentoii, 10 Q. B. 26. (r) Ifitnei/ v. Stocker, L. R., 1 Ch. 396 ; 34 L. J., Ch. 633 ; 35 ib. 467. SECT. II.] RIGHTS OF PROPERTY IN LAND. 363 346 ments, such as a right to tho flow of water in an oi'tifloial watercourse, to which tho tinbounders Imd acquired a title by pro- scription ; for, although thoro is no privity of estate between the tinbounders ond the owner, yet it must be presumed that the right to the use of tho water had been originally acquired by arrange- ment with the owner as well as the tinbounders (r). Coiiveiitiotial serviiiu/cs — Acquinition hif statnte — Allotments under Inclomrc Actn. — Rights which are part of the ownership of the soil, unless expressly reserved under Inclosure Acts, pass with the soil to the persons to whom allotments are made («). Where, therefore, by an Act for tho inclosure and allotment of waste lands in a manor, it was provided that nothing in the Act should defeat the right of tho lord of the manor to the seigniories and royalties incident to the manor, but that ho should hold and enjoy all courts, fairs, markets, &c., with free warren and liberty of hunting, hawk- ing, fishing, and fowling "to the said manor, or to the lord thereof, incident, belonging, or appertaining," in as ample a manner as before the Act, it was held that, as his right to sport over the waste before the Act was not a licence or liberty " incident to hini as lord," but a method of direct enjoyment of his own soil and freehold, the Act did not reserve any such right of sporting to him, and that his right thereto was gone (t). A fortiori, therefore, the same was held, where the Act provided that a certain portion of the waste should be allotted to the lord of the manor in satisfaction for his right and interest as such lord {>(). Where, however, in the reservation of the manorial rights of sporting in the Act, other rights not manorial, such as the right of taking coals, minerals, &c., were joined in the reservation, it was held that the right of sport- ing was not lost, but that the terms of the clause, though nominally terms of reservation only, were sufficient expressly to create or confer such a right (x). The Inclosure Commissioners have power under the 11 & 12 Vict. c. 99, s. 1, to sever the right to take game from the ownership of the soil, if the lord of the manor makes that a condition of his assent to the inclosure (y). Conventional servitudes — Acquisition — Statu fori/ property and interest of navigation companies in the water of a navigable river. — Acts of Parliament incorporating companies for the purpose of rendering rivers navigable, and purporting to vest in the company the river or stream to be made navigable, vest in the company much 5 CI I i; (>•) Ivimeij V. Stacker, mpra. (») Totmley v. Gibson, 2 T. R. 701. Doe V. Daviihon, 2 M. & S. 175. (t) Greathcad v. Morlei/, 3 M. & G. 139. Bruce v. Hcl/iur/l, 6 H. & N. 609; 29 L. J., En. 297. fiounbij v. Umit/i, L. R., 9 C. P. 521 ; 43 L. J., C. P. 200. A. («) Robinson v. Wray, L. R., 1 C. P. 490. (.1-) Ewart V. Graham, 7 H. L. C. 331 ; 29 li. J., Ex. 88. Musgravc v. Forstcr, infra. Lcconjichl {Lord) v. Dixon, L. R., 2 Ex. 202 ; 3 ib. 32. ((/) Miisgravey. Forstcr, L. R., G Q. B. 590 ; 40 L. J., Q. 15. 207. A .\ <^n? \}\ m 354 INJURIES TO HiailTS OF PROPKHTY. [CIIAP. VIII. 346 more oxtensivo rights ovor tho water of the stn^am than those wliich tho common hvw gives to riparian proprietors. They create a now species of statutory property and interest in tho water, which rentiers any ahstraotion of it unlawful, except by a riparian pro- prietor for his necessary purposes, although no actual damage may he done to the navigation (s). IJut navigation companies and canal companies have no power of granting any exclusive right of sailing upon or navigating a river or canal beyond what is expressly given to them by statute ; and therefore, where a canal company, by deed, granted to the plaintiff " the solo and exclusive right or liberty to put pleasure-boats on the canal, and let thorn out for hire, for pur- poses of pleasure only," it was hold that the canal company had no power to grant any such exclusive privilege (a) . Conventional servitudeH — Acquisition — Shiftiton/ nrrriiiKlc imposed upon rnilwa;/ companicn of f:eepi>i(/ up and tnaintaininrj fences. — The general Railway Act, 8 & 9 Vict. o. 20, which enacts (sect. 68) that railway companies shall make and maintain fences for sepa- rating tho land taken for tho use of tho railway from the adjoining lands, and for preventing the cattle {h) of tho owners or occupiers thereof from straying thereout, by reason of the railway, applies only to adjoining land of other persons {c), and does not impose upon railway companies any greater liability in respect of tho mainte- nance of fences than is imposed by tho common law upon occupiers, who are bound to maintain and repair fences for the benefit of the adjoining occupiers {d). Hail way companies, therefore, are not bound to fence against trespassers upon the adjoining lands. Where the plaintiff's sheep escaped from his own land into the adjoining close, and were trespassing there, and then passed on to the defendants' railway, from defect of fences, and were killed by a train, it was held that the defendants were not responsible for the injury; for the plaintiff was not the owner or occupier of land adjoining the railway, and the company, consequently, were not bound to fence against him {e) ; and, where cattle strayed into a high-road adjoining a railway, and through defect of fences got upon the railway and were killed, it was held that the company were not responsible for the injury, as the cattle were trespassers on the highway, and the owners of the cattle were not occupying (r) The Miduny Xurigation Co. v. Earl ofliomney, 9 C. B., N. S. 675 ; 30 L. J., C. P. 236. (a) Hilly. Tapper, 2 H. & C. 121. (A) The word " cattle" inclades pigs ; and tho company must put up such a fence that a pig, not of a peculiarly wandering disposition, nor under any excessive temptation, will not get through it. Child \. Heam, L. E., 9 Ex. 176; 43 L. J., Ex. 100. (c) Marfdl v. South If'nhs Hail. Co., 8 C. B., N. S. 626 ; 29 L. J., C. P. 315. (rf) Manchester, Sheffield, ami Lincoln- shire Hail. Co. V. IVailis, 14 C. B. 224 ; 23 L. J., C. P. 85. BiixtoH v. North Eastern Hail. Co., L. R., 3 Q. B. 649 ; 37 L. J., Q. B. 298. See, however, Besant v. Great Western Mail. Co., 8 C. B., N. S. 368. {e) liicketts v. East and West India Docks, ic. Hail. Co., 12 C. B. 174. JM ::.:. p SECT. II.] RIOHTH OF PROPERTY IN LAND. 355 847 the road with their cattle at the time thoy strayed from the road on to the railway (,/). But the statute is for the benefit of all persons who are lawfully using adjoining land ; and, consequently, the railway company muHt fence against the cattle of a third person which are on the land with the licence of the occupier (*/) ; and, if cuttle are passing along a highway under the cure of tlio riorvants rif the owner, the latter is lawfully using the way, and is deemed to ho u temporary occu- pier of the higliway, and, consequently, an occupier of land adjoin- ing the railway within the words of the statute, bo as to render it incumbent upon the conqjany to mauitain fences for the safety of his cattle BO traversing the highway. Where a colt strayed from a field on to a public road, and the servants of the owner of the colt went in pursuit of it, headed it, and drove it back along the high- way towards the field from which it had escaped, and the colt turned through an open gate into a coal-yard abutting upon a railway, and not fenced therefrom, and passed on to the railway, and was killed by a passing train, it was hold that the railway company were responsible for the accident, as the owner's servants were in the act of driving the colt homo at the time it escaped through the open gate, and the colt was not then trespassing upon the highway (//). But there is no duty imposed by statute or by the common law upon railway companies to fence off from their railway their own yards and in closures around their stations ; and, if cattle left in their yards stray therefrom, from the want of such fences, and get on the railway, and losses arise, the company are not responsible for such losses, unless it is shown that the cattle were under the care of the company's servants, or that the delivery of them was proceeding («), and that they had failed to take proper means to prevent the cattle from straying (/■•) . If a railway company lets surplus laud, the tenant cannot maintain an action against the occupier of the adjoining lands, if, by reason of the insufficiency of the fence, the cattle of the adjoining occupier trespass on his land (/). An arrangement with the landlord releasing the company from their statutory obligation to fence will not prevent the occupier from recovering from the company for the loss of a cow killed by reason of the neglect of the company to repair fences {m). Transfer of conventional servitudes. — Easements and profits a, (/) Manchester, SheffieUl, and Lincoln- shire Rail. Co. v. Wallis, 14 C. B. 224 ; 23 L. J., C. P. 86. (g) Dawsonv. Midland Hail. Co., L. R., 8 Ex. 8; 42 L. J., Ex. 49. (h) Midland Hail, Co. v. Layhin, 17 C. B. 129. (») Itooth v. North Eautern Rail. Co., L. R., 2 Ex. 173 ; 36 L. J., Ex. 83. (k) Roberts v. Great Western Rail. Co., 4 C. B. 606 ; 27 L. J., C. P. 266. Mar- fell V. South Wales Rail. Co., 8 C. B., N. S. 634 ; 29 L. J., C. P. 315. (l) Wiseman v. Jiooker, 3 C. P. D. 184. m) Corry v. Great Western Rail. Co., im) Corry v. Great Western Rail, i l B. D. 322; 50 L. J., Q. B. 386 J ? 5 5 5 CI A A y m 356 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. Hi kVM 348 prendre in gross, not appendant or appurtenant to land, can- not be kept alive, so as to burthen the land for all time in the hands of subsequent purchasers and proprietors ; and no easement, privi- lege, or profit to be enjoyed over, or taken from, land can be made appendant or appurtenant to land, unless it is accessorial to the use and enjoyment of landed property («). There must be a dominant tenement for wliose benefit the right exists, as well as a servient tenement (o). Thus, a right of way unconnected with the enjoyment or occupation of land cannot be annexed as an incident to an estate; nor can a way appendant to a house or land be granted away or made a way in gross ; for no one can have such a way but be who has the land to which it is appendant. It is not in the power of an oAvner of land to create rights not connected with the use or enjoyment of land, and annex them to it ; nor can he subject the land to a new species of burthen, so as to bind it in the hands of an assignee. " It would be a novel incident annexed to land, that the owner and occupier should, for purposes wholly unconnected with that land, and merely because he is owner and occupier, have a right of way over other land ; and a grant of such a privilege or easement can no more be annexed, so as to pass Avith the land, than a covenant for any collateral matter" (p). " Private ways over another man's grounds," observes Black- stone, " may be grounded on a special permission, as when the owner of the land grants to another a liberty of passing over his grounds to go to church, to market, or the like : in which case the grant is particular, and confined to the grantee alone ; it dies with the person, and the grantee cannot assign over his right to any other person " (q). Thus a licence to a man to hunt in my park, or to walk in my orchard, extends but to himself ; and a way granted to church over any land extends not to any other but the grantee himself (>•) ; and therefore he may not give or grant this to another {s). But, if the incorporeal right is appendant or appur- tenant to a house or land, and accessorial to the use and enjoy- ment thereof, it passes with the tenement to which it is annexed to the successive assignees and owners thereof by a grant of the tenement, so that the benefit and the burthen of the exercise and enjoyment of the incorporeal right will accompany the dominant {)/) miis V. Mayor, 4'C. of Bridgnorth, 15 C. B., N. 8. 62 ; 32 L. J., C. P. 273. Ay to when a ri^ht of shooting is an in- corporcul riglit in gross, sec Overseers of Hilton V. Overaiers of Bowes, L. R., 1 Q. B. 359; 35 L. J., M. C. 137. («) A'cino potest servittitem aequirere urbani vel riistici prtrdii, tiiai qui habet pradium ; nee quisquam debere, nisi qui prerdium habet. — Instit. lil>. 2, tit. 4, { 3. De Servitutibus. {p) Acfcroi/d V. Smith, 10 C. B. 188. Bailei/ V. StepLns, 12 C. B., N. 8. 91 ; 31 L. J., C. P. 226. mil V. Tapper, 2 H. & C. 121. (q) 2 Bl. Comm. 35. (r) Wingate's Maxims, 379. (s) Shep. Touch. 239. SECT. II.] RIGHTS OF PROPERTY IN LAND. 857 349 and Esrvient tenements into the hands of the several succes- sive assignees and owners thereof, so long as such dominant and servient tenements remain vested in the hands of separate proprietors (f). A claim by one landowner to enter upon his neighbour's land and cut down trees and sell them, is a claim of a profit a prcixlre in gross, and cannot bo made appurtenant to land, as it is in nowise accessorial to the use and enjoyment of an estate ; but a claim to cut down thorns and firewood to burn in the dwelling-house of the claimant, is a profit a piriidir accessorial to the use and enjoyment of the dwelling-house, and may bo made appendant or appurtenant thereto, so as to give the owners and occupiers thereof for the time being a right to the privilege (n). An incorporeal liereditament in the nature of a profit « prendre is an estate capable of being inherited by the lieir and assigned to a purchaser, or otherwise conveyed away. It is a tenement within the definition of Lord Coke, who says that the Avord " tenement " includes not only corporate inheritances, but also all inlipritancos issuing out of tliem, or concerning or annexed to them, or exercisable within tliem, as rent, estovers, common, or other profits granted out of land {.>•). If, therefore, a land- owner grants to a man and his heirs a right to dig for and carry away stone, clay, or minerals, the incorporeal right may be demised by the grantee for }ears or for lifo, or conveyed away to another and his heirs (//). Where the Lord Mountjoy, by deed inrolU^d, bargained and sold the Manor of Camford to one Brown in fee, and by the same indenture Brown granted tc vue Lord Mountjoy, his heirs and assigns, a right to dig for ore in tlie waste land of the manor, and also to dig turf there, and the Lord Mountjoy demised this interest to one Laicot for twenty-one years, and Laicot assigned the same over to two other men, it was held that the assignment was good, but that the two assignees could not work severally but together, with one stock and such workmen as belonged to them both ; and that the assignee had no exclusive right to dig for ore, but that the landowner himself, or the grantor of the privilege, might als dig for ore without derogating from the grant (s). But grants of profits issuing out of land carrying an assignable interest can oj^'Y be made in gross, and can only be assigned by the grantees by the vlinary conveyances known to the law ; and it is not because the grantee may happen to be the (1) See post, p. 353, as to the merger and extinguishment of easements and profits a prendre by unity of ownership of the dominant and servient tenements. (m) Dou-glass v. Kendall, Cro. Jac. 266. {r) Co. Litt. 20 a. (//) Miidett V. mil, 5 Bing. N. C. 707. Miirlyn v. Williams, 1 H. & N. 827 ; 26 L. J., Ex. Ii7. (:) Moiintjoi/'s case, Godb. 17 ; 4 Leon. 147. Clictham v. Williamson, 4 East, 476. 5 \ \ -'^m nfnppnmnPBin? 358 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. lii^ jt- u ■ .J 3S0 owner of a close at the time the grant is made to him tliat such a conveyance can he dispensed with in favour of the persons who, from time to time, may succeed him in the ownership of that close (rt). A right of common for cattle levant and couchant on a particular tenement cannot he aliened so as to hecome a right in gross {J)) ; hut it is otherwise, if the right is for a certain numher of beasts (c). A mere personal privilege or easement, such as a right of way in jri'oss, not annexed or appurtenant to a tenem'^nt, cannot he assigned or granted ovr (r/). A licence of pleasure cannot he assigned. Thus, if a licence is granted to me to walk in another man's garden, or to go through another man's grounds, I may not give or grunt this to another (r'). Extinguishment of conventional servitudes.— A title once gained hy grant, prescription, or custom, may be extinguished by the act of the owner, as by release or abandonment, or by the act of the law, as by unity of possession of the dominant and servient tene- ment, by destruction of the dominant tenement, and possibly by encroachment, or by non-performance of the conditions of the grant. In the case of Avays of necessity, the servitude will also be extinguished by the cesser of the necessity (/). £.rtintiuis]imcnt of conventional servitudes — Rcleasr. — A right of common is extinguishtd by an express release of part of the land originally subject tc it, because such release casts a greater burden on the rest of the land (//) ; but the law is other ise in the case of an exclusive right of pasturage (//). A mere parol licence or agreement will suffice for flie destruc- tion, although it is insufllcient for the creation, of an easement. Thus, if a person possessed of an easement over the land of an adjoining landowner, verbally authorizes the latter to do an act of notoriety upon his own land which, when done, will be incon- sistent with the continued enjoyment of the easement, and tlie licence or authority is acted upon, and the thing done, the autho- rity so given and acted upon cannot be revoked ; and the easement, consequently, is extinguished. Where the plaintiff, for example, having a right to the uninterrupted access of light and air across a (fl) Willes, J., Bailey v. Stephens, 12 C. B., N. S. 91 ; 31 L. J., C. P. 228. (h) I'yrvtghani's case, i Co. Rep. 36 1i. ((') Ilaiiifly. Hii'tsHp, 2 Lev. 67, por Hale, C. J. (rf) Ackroyif v. Smit/i, 10 C. B. 188. («•) Wingate's Maxims, 379, cittxl Shep. Touch. 239. (/) By the French law, "servitudes cease when things arc in such a state that it is impossible any longer to make use of them." They revive, if things ore re-established in sucli a manner that they can be made use of, unless a suffi- cient space of time has already elapsed to raise a presumption that the servi- tude has lx;en extinguished. A servi- tude is cxting^islied also by non-usage during thirty years. Cod. Civ., Arts. 703, 700. (y) Rotheram v. Grrev, Cro. Eiiz. 593. Per Willes, J., Joiinsoiiv. llarueii, L. R., 7C. P. 592; 41 L. J., C. P. 250. (/() Johnson v. Jiantes, L. R., 8 0. P. 627 ; 42 L. J., C. P. 259. iviiqiii,««i.' ^wmp wp<^ r^^ ■mpwe^^r*" SECT. II.] RIGHTS OF PROPP^RTY IN LAND. 359 351 the defendant's area, had given the defendant a parol licence or permission to put a skylight over his area, and the skylight was erected by the defendant on his own land, and, when built, was found to impede the passage of the air and light and to obstruct the plaintiff's easement, it Avas held that, as the parol licence or permission had been acted upon and executed, and the skylight built, the licence was irrevocable, and the easement was extin- guished (*). So, where the plaintiff, having a right to the use of a stream of water which flowed tlu'ough the land of the defendant, gave the defendant a parol licence or permission to lower the banks of the river, and erect a woir, and divert a portion of the water which had previously flowed to the plaintiff's mill, it was held that the plaintiff, after he had so given up his right to the water that had been diverted, and had suffered the defendant to act upon the faith of such relinquishment, and to incur expense in doing on his own land the very tiling that was authorized by the plaintiff to be done, could not then lawfully retract such ",onsent, and throw on the defendant the burthen of restoring things to their former condition (/r). E.rti»(jHifihment of vonrcutional servitudes — Abandonment. — A title once gained by prescription or custom cannot 1 e lost merely by non-user for ten or twenty years ; for, when there is once a title by prescription vested, it cannot be taken away by cesser of user of the right of late time (/). The question of abandonment is a question of fact, to be determined upon the wliole of the circum- stances of the case ; and the non-user is evit.ence with reference to abandonment. Where a modus decimandi Avas alleged by prescrip- tion time out of mind for tithes of lambs, and thereupon issue was joined, the jury found that before twenty years then last past there was such a prescription, and that for these twenty years he (the plaintiff) had paid tithe lamb in specie. It was objected : 1. That the issue was found against the plaintiff ; for that the prescription was general for all the time of prescription, and twenty years fail tliereof : 2. That the party by payment of tithes in specie had waived the prescription or custom. But it was adjudged for the I (i) IFiiiUr V. Bruvlacdl, 8 East, 309. {k) Liggins v. Inge, 7 Bing. 682. lilooil V. Keller, 11 Jr. Com. Law Rep. 130. The same rule prevails in the civillaw. In the "Digest," for example, it is laid down, that "if I havM a right of discharging my caves-droppings into Toiir area, and I authorize yon to build m this area, I loae my right of discharge ; and 80, if I liaro a right of way over your property, and I authorize j'ou to do anything m the place oyer which iny righc of way exists, I lose my right of way. Si stillicidii immittcndi jus hnhram in aream t'tam, et permisero jus tibi in cd aredadijicundi, stillicidii immit- teiidijiis amiito. Et similitrr, si per tinim fi(nd:im via iiiilii dehcatur, ft permisero tibi, in eo loco, per quern via miki dcbetur, ali- f/iiid fucerc, amitto Jus I'w." — Dig. lib. y, tit. 6, 1. 8. (I) Co. Litt. 114 b. O '.(/v. Gardinei; 4 M. & W. 500. Battishill v. Reed, 18 G. B. 6C7 : 25 L. J., C. P. 290. —T^ — r» ^ »-*-" '% w 'i - 4Sl,.CiI '^< ■ !l ;B , 9 N. J. 9; in such a case all lesser ris-hts and easements arc r ■ ' ■. Ittalc, 54 Me. -I U tlip ' of lands iivi! held by a defcttivo title the r; semi at by a valid one, ilii men'i, is Tiot extingui">ied by th^ ,ir. title • Tj/ler v. . re mond, 1 (Mass.) 193 So it joases when Ujc v^- tate to which it was apjiurtcnant ceases : Jfjff'iiiflu V. .*)'« affc, 15 Mass, 130. The rule may bo stated thus — whr,i>. an cascmert is once acquired it cam.H!' geneniUy be lost, except by a non-user fci a ])criod equal to ihat requisite to ^aiti it, Olid an aJvrrse user by the i.w uer of the es*- . . '. Non-user is merely evidence l'ror<, .\': ijh an abandonment may be preH'. iY:ti^, and is w«ak or strong according to tho circumstances ; more non-user is not enough ; there must either be an adverse user, or tho non- user must bo such as clearly to show an intention and purpose to abandon it : W/iile v. Crairfurd, 10 Mass. 183; Wil- Hams v. Xfkon, 23 Pick. (Mass.) 141 ; Xitzc/l V. raschall, 3 Rawle (Penn.) 70 ; Hatch V. JJuiflht, 17 Mass. 289 ; Wright V. Frcfinan, 5 Me. 154 ; Corning v. Gould, 10 Wend. (N. Y.) 531 ; Thomas v. McDonald, N. Y. 381 ; Farrar v. Cuopir, 34 Me. 394 ; Ycaick v. Xacc, 2 Whart. (Penn.) 123; Jennisonv. ll'al/.rr, 11 Gray (Mass.) 425 ; I>i/er , Depac, 5 Whart. (Ponn.) 584. Non-user may bo explained, as by showing that the person had no occasion for it ; and unless there is an adverse user by tho owner of tho estate, or such a state of facts as clearly indicate an abandonment, it cannot bo predicated of non-user alone: Hard v. Curtis, 7 Met. (Mass.) 94; Curniny v. Gould, 10 Wend. (N. Y.) 535 ; Farrar v. Cooper, ■■:. I :'■; >. 394 ; Miller v. Gortich; 5 Barb. (;i. :• ■> 183. Wl" ', the owner of the right does 'l^iit viiic 'i clearly iudicntes an abandon- .■r:it I, ■ the casement, non-user for a I'j.si period than that required to acquire +bt' right will be sutticient, but tho ' sser of tho use must be coupled with •..rjli acts as eleiu'ly indicate an in- tention, vr.* merely to cease to exorcise, but to h .itndou the right. Thus, in jr. (Hams V. Kdson, 23 T>ick. (Mass.) 141, the owners of a mill bikI dam on a stream had H<-,quired a prescriptive light to flow certain Ir.nd.s 1 eJonging to upj)i r owners. After the right had become vested in SECT. II.] KIGIITS OF PROPERTY IN LAND. 361 new track may be considered as an exercise of the old right, and evidence of the continued enjoyment of it (o). When, therefore, a new Avay has been substituted by agreement of the parties in lieu of an old prescriptive way, and the new way is stopped, the old prescriptive right of passage revives (p), unless the uon-user of the original right of way is accompanied by acts warranting the conclusion that it was intended to release the pre-existing ease- ment (q). If the jury find tlio right of way once well commenced, it must be shown tliat it has subsequently been released, abandoned, or destroyed. An express release of the easement would, of course, destroy it at any moment ; so the cesser of use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect without any reference to time. It is not so much the duration of the cesser of enjoyment, as the nature of the act done by the grantee of the easement, or of the adverse act acquiesced in by him, and the intention in him which either the one or the other indicates. The period of time is only material as one element from which the grantee'o intention to retain or abandon his easement may be inferred against him ; and what period may be sufficient in any particular case must depend on all the accompanying circumstances (r). Conventional scrvitiides — Extinguishment hij abandonment — Disuse of right to icatei: — A person who has a prescriptive right to a flow them they took down their i .ill and re- moved all the macliinery except the ■wheel, loaviiifjf the dam, however, still stiiudiiig'. Some of the owners declai'ed that the mill woidd not again be used. The owners of the lands above, which had formerly been Howed, cultivated dio lands and stocked them with grasses. At the end of nine years the owners re- sumed the occupation of the mill and the full exercise of all their former right to flow the lands. Tlio court held that thij was not such an abandonment of the right as prevented their resuming it, and the doctriiie of the court is clearly right. There was in this case a mere cesser of use ; the dam was left standing, and tlie wheel was left in its usual place. It was not the mill or its ma- chinery that created the injury, but the dam and its use. The dam, which was the instrument through which the right was acquired, was not disturbed, and its UBO might well lie resumed at any time befoi-e the right waa defeated by a(i verse use. In J^mtisvn v. Walker, 11 Gray (Mass.) 425, there v.'as an express grant to hiy an aqueduct through the i)laintiff'8 laud, but tho defendant's grantors having ceased to use it, and tho plaintiff having taken up the logs and dam withotheracts adverse to the right for a period of thirty years, it was held that tne right was lost. See Arnold v. Sterols, 24 Pick. (Mass. J lOG ; llanner v. Aiigier, 2 Allen (Mass.) 128 ; irigyins v. MeClearii, 49 N. Y. .340; Owen v. Field, 102 Mass. 114; Huffman y. Savage, 1.5 Id. 130; Bulls v. 'Thrie, 1 Eawle (Penn.) 218. This doctrine was applied in Railroad Co. V. Covington, 2 Barb. (N. Y.) 5.32, where a railroad company having an easement to maintain a railroad over one's land, took up the raUs and ceased to use it, and conveyed the road, but to other parties, the court lield that this operated as an abandonment of the ease- ment, although the non-user had existed for but a short period. (o) rayne v. Shedden, 1 M. & Rob, 382. {p) Lovell v. Smith, 3 C. B., N. S. 120. ('/) Mulvillcy. Fallun, C Ir. Rep., Eq. 468. (»•) Beg. V. Chorleif, 12 Q. B. 619. Williams V. Eyton, 2'H. & N. 771; 27 L. J., Ex. 176. I § I 5 C3 362 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. !-i! hi':: 353 of water to a pond or well does not lose his right merely because he has ceased to use his pond or well, and has allowed it to become choked with weeds (s) . But if, having a right to foul the water, he lies by, and allows other persons to incur expense, which would be useless if his right to foul the water continued, he must be taken to have abandoned it (t). Conventional spfrthides — Extinguishment hij abandonment — AbaU' ' of light and ait: — If a person entitled to an air does any act of notoriety showing that "w jf the light and air he enjoyed, he may "•■\ less period of time than would suffice to it. Where the owner of a building with looking the defendant's premises pulled down ■'.«. »> Ji ) ilmmcnt of a • ■"■ *"'f?'iment < !' ii;; ji,^ abani'o>s.-- t^ L>i3 his iLftix. *. enable h'n: ■. ancient v^' '"^ •" the build .J, id 1 erected another with a blank wall without any windows, and 'teen years afterwards the defendant erected a building next itiis blank wall, and the plaintiff then opened windows in the blank wall in the place where his ancient windows formerly stood, and brought an action against the defendant for the obstruction to the light and air caused by the defendant's now building, it was held that the windows thus opened could not claim the privileges of the ancient windows which had formerly existed on the same spot, that those privileges had been lost by manifest disuse, and that the action Avas not maintainable (»). If a window has been bricked up for twenty years, it is, when re-opened, prima, facie, a new window (,r). But, if the facts show that the windows were only temporarily disused, that the frames and sashes were kept jji, oy the spaces flllcil wUli a temporary hoarding which could reinilly |m yemoved, the owner of the window spaces will nnl hiso Ids riglil to ilio easement of light and till by (lifi disuse of the wiudowH for any period short of twenty years, unless jlie adjoining lahdott'Jier has boen pennitted to build against jliotll, (Itid to incur exjip<(8e, in the reasonable belief that the windoAVH have been pnrmanciitly abandoned, in which case the OAVliej' of I III) windows cannot llieu insist upon his ancient right and clnlhi damages for nn injury which has been brought about by his own negligence and want of tare (//). Conventional servitudes — Extinguishment hy merger — Unity of oiDii rshi]) of the dominant and servient tenements. — Easements and profits a prendre may become merged and extinguished in the general rights of property, when the land benefited by, and the (s) Hale V. Oldroyd, 14 M. k W. 792 ; Co. Litt. 1141) (<) Croit»iey\. i.ightowler, L. R, 3 Eq. 279 ; 2 Ch. 478 ; 36 L. J., Ch. 584. (m) Moore v. Rawtm, 3 B. & C. 332. Lc) Laivrcnce v. Obce, 3 Camp. 514. \y) Slokoc V. Singers, 8 El. & Bl. 39 ; 2C L. J., Q. B. 257. Cook v. Mayor of Bath, L. R., 6Eq. 177. SKCT. II.] UIGHTS OF PROPERTY IN LAND. .'{63 364 land burthoned witli, the easeraont or profit pass into the hands of one common proprietor, or when the person possessed of the incor- poreal right becomes the owner of the land over or upon which the right is exercised; for n man cannot, strictly speaking, have an easement in his own land (c) . Thus, if a man has a rent or common by prescription, unity of possession of as high and perdurable estate in the land is an interruption in the right ; for a title by prescription vested will be destroyed by unity of owner- ship of the dominant and servient tenements («). So, if one man erects on his own land a building which wrongfully darkens the windows of the adjoining proprietor, and afterwards purchases the house with the darkened windows, the tort is thenceforth purged by the unity of ownership, and the easement or privilege of enjoying the unobstructed aecess of light and air annexed to the darkened windows is extinguished ; for, both houses being in the hand of one person, he may deal with them as it seems best to him. If, therefore, he afterwards grants or conveys the house with the darkened windows, the grantee cannot lawfidly oomplaiu of the niiisauco, and has no remedy for its abatoineut. If one of two houses, which belonged to two dif¥\>ivnt proprietors, lias been built BO OS wrongfully to overliang the other, and thoy afterwards come into one hand, the wnmg is now puvgod ; bo that, if the houses come afterwards again into stA'eral hands, yet neither \'arty can complain of the wrong done before (A). The obligation imposed in certain oases by custom, presorip* tion, or contract, upon the owner of an estate to maintaiu a fence for the benefit of the owner or occupier of the adjoining land, is an obligat''(Mi. in the nature of a servitude. Where, therefore, adjoining lands, wliiuh liave onco belonged to different persons, one of whom is bound to repair the fences between the two, after- wards become the property of the same person, the pro-existing obligation to repair the fences is destroyed by the unity of owner- ship ; and, whore the person who has so beeome the owner of the entirety afterwards parts with one of the two closes, the obligation to repair the fences will not revive, unless express words aro intro- duced into the deed of conveyance for that purpose (c). If a man wlio has a right of common appurtenant {d) becomes himself the owner of the land over which the right of common extends, the incorporeal right is merged in the legal ownership, and the laud is dipchargod ; for a man cannot have common in his i (r) Outram v. .Vaiide, 17 Ch. D. 391. (a) Co. Litt. 114 b. Oiilii/ V. (jardiiicr, 4 M. & W. 500. Balthhi'u v. Itcii, 18 C. B. 697 ; 25 L. J., C. P. 290. (A) ifeJiNs V. inflows, Hob 131; RoUe'.i Abr. Customs (D.), pi. 7. Jialtishill v. lici'd, 18 C. B. 696 ; 25 L. J., C. P. 290. ((■) Bayley, J., Boyle \. Tamlyn, 6 B. & C. 337. {d) Ante, p. 285. •Ri >5. im INJURIES TO RIGHTS OF PROPERTY. [CIIAP. VIII. 1! in . 1 ^ lb 356 own land (c) ; and, if the owner afterwards grants the land to which, before the extinguishment, the riglit of common was at- tached, witli all easements and profits thereunto "appertaining" or ♦* belonging," these words will not bo sufficient to revive or re- create tlie right (./'). So, if a man purchases part of the land, the right of common is extinguished, unless it is a right of common appendant, in which case it will bo apportioned, because it is of common right {(/). If a copyhold tenement to which a right of common is annexed becomes vested in the lord by forfeiture, the right of common is not extinguished ; it remains by custom annexed to the customary tenement ; and, though the right is in abeyance while the estate remains in the lord, it is re-created or revived by a re-grant of the estate as a copyhold tenement citin prrfiiicnfiin. " When coj)y- holders for life, according to the custom, have used to have common in the Avastes of the lord of the manor, or estovers in his woods, or any other profit d prendre in any part of the manor, and afterwards the lord aliens the wastes or woods to another in fee, and after- wards grants certain copyhold houses and lands for lives, such grantees shall have common of pasture, or common of estovers, &c., notwithstanding the severance ; for the title of the copyholder is paramount to the severance , and the custom unites the common or estovers, which are but accessaries or incidents, as long as the liouse and lands, being principal, are maintained by the custom ; which customary apj)ui(('nnncps are not appertaining to the estate of the lord ; for lie is the owner of fho freehold and inheritance of all the manor ; but they are api)ertaini/)g to the customary estate of the co[)yholdor, after the grant made unto him ; which proiil (\ pvi'itdrc, being due by custom to tlie coj)yhold tenement (notwithfctanding tlie feoff niont or fine, &c., of the waste or woods made by tlie lord), remains and is preserved by the custom, which is, as hath been said, the title of the copyholder, and is paramount to the severance ; but, if the copyholder had derived his interest from the estate of the lord, then clearly, by the feofPment, fine, &o., of the lord, all those who afterwards claim by him, shall be barred of any profit a prciulir in the same waste or woods " (//). If, indeed, the lord grants the fee to a copyholder, the estate can never again become a copyhold estate, and the right of common is extinguished ; "for the common first used was gained by custom, and annexed to the estate, and is lost with it " (/). ((■) J\>/s(»i's ease, 3 Leon. 128. Saun- ders V. OUf'e, Moore, 467. Tyringhani' s case, 4 Rep. 38 a. (/) elements^. Lambert, 1 Taunt. 204. Grymes v. Peacock, 1 liulstr. 17. {g) Co. Litt. 12'J a. (/() Sutii/ue'scase, 8 Rep. 03 b. Brown's ease, 4 Co. 21 b. Benson v. Chester, 8 T. R. 401. (i) Bailgrr v. Ford, 3 B. & Aid. 155. Massamv. Hunter, Yolv. 180. ^^ SECT. II.] RiailTS OF PROPRRTY IN LAND. 363 356 For tlie oxtinguishment of a pre8crii)tivo right by unity of ownerHhip and possession "it is reqnisito that tho party should have an estatj in tho land a t/ud, and in the land in quii, equal in duration, quality, and all other circunistances" (/). "If," observes Alderson, B., " I am seized of freehold premises, and possessed of leasehold promises adjoining, and there has formerly been an oaso- nient enjoyed by the occupiers of the one as against the occupiers of the other, while the premises are in my hands the easement is necessarily suspended, but it is not extinguished, because there is no unity of seisin ; and, if I part with tho premises, tho right, not being extinguished, will revive "(/). If a lessor of tho dominant tenement takes a week's tenancy of tho servient tenement, he does not lose all the servitudes : ho will only lose the statutory mode of establishing thorn ; and he will only lose that, when it can bo said that at tho time of granting tho lease ho could grant tho servitude {m). " If a man hatli common by proscriiition, and taketh a lease of tho land for twenty years whereby the common is suspended, after the years ended he may claim the common generally by prescription ; for that tlie suspension was but to the possession, and not to the right, and tho inheritance to the common did always remain ; and, wlion a prescription or custom doth make a title of inheritance (as Littleton speaketh), tho party cannot alter or waive the same in pain " {n). Easements of necessity and continuous easements are not ex- tinguislied by unity of ownership ; and, therefore, a necessary way over land continues, notwithstanding a unity of ownership of the dominant and servient tenements, and a subsequent conveyance of such tenements to separate proprietors (o) ; but this is not the case with regard to mere easements of convenience, which are used from time to time only, such as the right of taking water from a pump {p). A private right of way is not extinguished by the subsequent dedication of the way to the public (r/) . Conventional scrvituucs — Ewtinguishmcnt hij destruction of the dominant tenement. — Where an easement is granted for a par- ticular purpose, or arises as accessorial to a thing granted, and the purpose can no longer bo accomplished, or tlie thing granted ceases to exist, so that tho easement can no longer bo applied to the object for which it was originally granted, the easement is at 5 m \k \ (A) R. V. Hermitage, Garth. 241. See Icimey v. Stacker, L. R., I Ch. 407 ; 31 L..T., Ch.033; 35 ib. 4G7; Co. Litt. 114 b. (/) Thomm V. Thomas, 2 C. M. & R. 41. (»n) Bramwull, B., Wtnhiirlon v. I'arke, 2 H. & N. 04 ; 20 L. J., Ex. 298. (m) Coke's lust., 170. («) Packer v. U'elUtenil, 2 Sid. 111. Ramon v. Spencer, 1 B. & S. 584 ; 3 B. &S. 701. (li) Polden V. Bastard, L. R., 1 Q. B. 150 ; 32 L. J., Q. B. 372. (v) BuHcan v. Loueh, 6 Q. B. 901. 366 INJURIES TO RIGHTS OF rROPEIlTY. [cHAP. VIII. 11 :, 3fi7 an end (r). But,whon mills or houses whicli liavo watercourses, or estovers, or other things appendant or appurtenant to them, are overthrown hy the wind, or burned hy fire, or fall by any other act of God, if the owner rebuilds lliom in tho s.i-iio manner as they stood before, they shall have the same ancient rights appendant and appurtenant to tho new structure ; and, although tho house or mill falls by tho act or default of the owner, or by the wrong of another, yet, forasmuch as tho durable materials remain, ho may rebuild it without the loss of anything appendant or appurtenant to it ; but it ought to be reconstructed upon the old foundations of the ancient house (s). A right of common appurtenant for cattle levant and couchant is not extinguished or suspended by reason of tho tenement in respect of which it is claimed having been changed so as no longer to be capable of supporting cattle, if it is still in such a state that it might easily be turned to the i)urpo6o of feeding cattle (/). Whore the grant of a right of way k in roRpect of the lands, and not in respect of tho person, it is not extinguished by tho severance of tho lands, but goes with every part of the severed lands (h). Coiirciifioiuil servitudes — Exti)i(jimhment hy encroachment. — An alteration of the dominant tenement which does not amoun' to a substantial variance in the mode or extent of user or enjoyment of tho easement, so as to throw a greater burden on the servient tenement, duos not extinguish or suspend the easement. Thus, where A is entitled to the right of eavesdrop, a slight raising of the eaves on the rebuilding of the premises will not affect tho right (jc). So, if a man has a watercourse to his mill, an alteration in the purpose for which tho mill is used will not destroy his light. " So, if a man has estovers, either by grant or prescription, to his house, although he alter the rooms and chambers of this house, as to make a parlour whore it was the hall, or the hall when the parlour was, and the like alteration of the qualities and not oi the house itself, and without making new chimneys, by which no pre- judice accrues to the owner of the wood, it is not any destruction of the prescription ; for then many prescriptions will be destroyed : and, although he builds new chimneys, or makes a new addition to his old house, by that he shall not lose his prescription ; but he cannot employ or spend any of his estovers in the new chimneys or in the part newly added. The same law of conduits and water- (>•) National Guaranteed Manure Co. v. Donald, 4 H. & N. 8 ; 28 L. J., Ex. 185. its 4 Co. 86 b, 88 a. [tS Carr v. Lambert, L. B., 1 £x. 35 L. J., Ex. 121. 168; («) Newcomen v. Couhon, L. R., 6 Ch. D. 133; 46 L. J., Ch. 469. (j) Uarvei/ v. Walteri, L. E., 8 C. V. 162 ; 42 L. J., C. P, 105. SECT. II.] IIIGIITS OP PKOl'ERTy IN LAND. 367 '^ 358 I'ipea and tho like. So, if a man has mi old window to his hall, and afterwards ho convoi-ts tho hall into a parlour or any other use, yet it is not lawful for his Ufighhoui- to Ntop it ; for ho flhall prescribe in have tho lij^ht in such part of his iiouso" {i/), Conccntioiml sorpifndcH — ExtimjutHhrnont hi/ encroacliincnt — Alte- rafioHH in nindows. — Opening a now window or eidarging an old window is no injury or wrong. It is ono of tho natural rights of property which any man is entitled to exercise ; ond he cannot, by exorcising that right, loso any other right which ho may liavo acqui.'od. Tlieroforo, having got a right to the entry of light into a window of a certain size, ho docs not, by making that window larger, lose his right to the "utry of light to tho old part of it {z). it follows that, if now or enlarged windows cannot bo obstructed without at tho same time obstructing ancient, unaltered windows, an obstruiition to such last-named windows cannot bo justified ; neither can an obstruction to a lower window bo justi- fied, merely on tho ground that an upper window has been en- larged, or a new ganot window has been thrown out(^/). Nor will the right bo prejudiced by any proposed decrease of light caused by buildings erected by tho owner of tho dominant tene- ment himself (h), nor by any increase of light caused by clearances cffocted in tho neighbourhood, unless amounting to so much light that no one could reasonably want more (r). But, if windows have boon allowed to bo opened, with blinds attached to them sloping upwards, so as to admit the light, but obstruct the view over the adjoining land, and the blinds are removed, the view from tho windows may be obstructed, provided the obstruction causes no greater impediment to tho light than was caused by the old blinds (d). If, however, a person possessed of an ancient diamond-paned, or stone- muUioned, or gothic window, or a window painted on the inside, puts in a modeni sash with plato glass, or rubs off the paint and so increases the amount of light inside his house, and his neighbour blocks up the window, or builds imme- diately before it, tho court will by injunction compel him to remove the obstruction (e). What alterations in a window will cause a loss of the right to light is a question which underwent considerable discussion in ((/) LiitttrlVs fate, 4 Rep. 86 a, 87 a. Aynakii v. Glover, L. R., 18 Eq. 544 ; 43 L. J., Ch. 777. liidlers v. Dickinson, 29 Ch. B. 155 ; 54 L. J., Ch. 770. (z) Tapling v. Joiie.t, 11 H. L. C. 290 ; 34 L. J., C. P. 344. Aymleii v. Glover, L. R., 10 Ch. 283 ; 44 L. J., Ch. 528. Newson v. Pender, 27 Ch. D. 43. (a) Binekes v. Pash, 11 C. B., N. S. 342 ; 31 L. J., C. P. 347, 350. (M Staiyht V. hum, L. R., 5 Ch. 163 ; \ 39 L. J., Ch. 289. EcclcHastical Com- Missioners v. Kino, 14 Ch. D. 213 ; 49 L. J., Ch. 529. (c) Di/er's Co. v. Kinff, L. R., 9 Eq. 438 ; 39 L. J., Ch. 339. (rf) Cotterell v. Griffiths, 4 Ewp. 69. (<■) Turner v. Spooner, 1 Drew. & Sm. 467 ; 30 L. J., Oh. 803. I ..I r > 5 s IMAGE EVALUATION TEST TARGET (MT-3) ^*i^>^ V^^ 1.0 ^^ i^ =^ ut li& |22 1 1.1 l.-^Kfi ■ li Photogra^ Sdaices Corporalion 23 WiST MAIN STREiT «VltSTiR,N.Y. 14SM (716)«72-4f03 '^ 'I' r 4 i^ \ ^ fS '•■ f. 368 INJURIES TO RIGHTS OF PROPERTY. [CilAP. VIII. 369 recent times (/). It is clear that an extension of the window in the same plane will not cause a loss of the old light ; neither is the light gone, when the house, having been pulled down for the puipose of being rebuilt, is rebuilt in substantially the same posi- tion ; and, even where the new house is set back or altered, so that the new windows are in a parallel plane at a greater distance or in a diagonal plane at a similar distance, tlie right is not lost so long as a substantial portion of the light which would have passed over the servient tenement through the old windows, passes also, or, but for the obstruction complained of, would pass through the new windows (./'). An intention to abandon the light must be clearly established by evidence {ff). Conventional scrcitiiden — EMinguinhnent hi/ non-pci'fonnance of conditions annexed to the grant. — If a righL of way is granted to another, he contributing and paying his rateable share and propor- tion of the expense of repairing the way, and repairs become necessary, and the wf.y is repaired by the grantor, and the grantee refuses to pay his rateable proportion of the expense, his right of way will become forfeited, or will be suspended, until the accom- plishment of the condition annexed to the grant ; but the grantee has the right to use the Avay without paying anything until repairs become necessary, and the cost of them has been ascertained, and the grantee has refused to pay his share of the cost {g). If a riglit of watercourse is granted, with certain limitations and restrictions, and the grantee exceeds his limited right, and refuses to conform to the restrictive conditions, he loses his right altogether, until he makes his enjoyment of it conformable to the conditions of the grant (A). Conventional servitudes — Extinguishment of ways of necessiti/. — A way by necessity is commensurate only with the existence of such necessity, so that, when the necessity ceases, the right of way also ceases. Where, therefore, a person who has a way of necessity over the lands of another is able to approach the land for which the way was used by passing over his own soil, the right of way is extinguished. " When, by a subsequent purchase, he is enabled to reach his house, farm, or field, without touching the land of his neighbour, the necessity of going upon the land of the latter ceases ; and, the necessity ceasing, the right founded upon such necessity ceases also" (t). But the easement revives again when the neces- sity for it revives (k). (/) Kational Frovincial Tlatc Glass In- surance Co. V. Prudential Assurance Co., j6 Ch. D. 767 ; 46 L. J., Ch. 871. Barnes V. Loach, 4 Q. B. D. 494 ; 48 L. J., Q. B. 756 ; Scott v. Papc, 31 Ch. D. 664. (ff) Grcot woody. Ilornsey, 33 Ch. D . 4 7 1 . (//) Limcan v. Louch, 6 Q. B. 9(14. (/() CawktvcU V. Jiussell, 26 L. J., Ex. 34. (i) Holmes v. Goring, 9, Bing. 76. (k) Pearson v. Spencer, 1 B. & S. 584 ; 3 ill. 761. I <• r SECT. II.] RIGHTS OF PROPERTY IN LAND. 3G9 360 Injuries to rights of property in land — What constitutes a trespass. — Every entry upon land in the occupation or possession of another constitutes a trespass, in respect of whi^h an action for damages is maintainable, unless the act can be justified. If a man's land is not surrounded by any actual fence, the law encircles it with an imaginary inclosure, to pass which is to break and enter his close. The mere act of breaking thiough this imaginary boundary con- stitutes a cause of action, as being a violation of the right of pro- perty, although no actual damage may be done (/). If the entry is made after notice or warning not to trespass, or is a wilful and impertinent intrusion upon a man's domestic privacy, or an insult- ing invasion of his proprietary rights, a very serious cause of action will arise, and exemplary damages will be recoverable (m) ; but, if there has been no insulting or wilful and persevering tresimss, and no actual damage done, and no question of title is involved, the damages recoverable may be merely nominal. Every trespass u^on land is, in legal parlance, an injury to the land, although it consists merely in the act of walking over it, and no damage is done to the soil or grass. Every injury to the posses- sion of the occupier is, in principle, an injury to the property; and, therefore, if a man is unlawfully turned out of his dwelling- house, that amounts, in point of law, to an injury to the dwelling- house (»). Where an action was brought for trespassing on a close and treading down the grass, and the defendant pleaded that he had land lying next the said close, auJ. upon it a hedge of thorns, and he cut the thorns, and they, ipso i.ivito, fell upon the plaintiff's land, and the defendant took them off as soon as he could, and the plaintiff demurred, it was adjudged for the plaintiff ; for, " though a man doth a lawful thing, yet, if any damage do hereby befall another, he shall answer for it, if he could have avoided it " (o). So, where, to an action of trespass for mowing the plaintiff's land and carrying away the grass, the defendant pleaded that he had land adjoining the plaintiff's, and, in mowing his own land, in- voluntarily and by mistake he mowed some of the plaintiff's land, intending only to mow his own land, it was held that this was no answer ; for the act was voluntary, and the knowledge and intent of the defendant could not be ascertained and were immaterial (jj). (/) Ante, p. 3y. (m) Merest v. Harvey, 6 Taunt. 443, («) Meritonv. Coombes, 9 C. B. 787; 19 L. J., C. P. 336. Lane v. Dixon, 3 C. B. 776. (o) Mich. 6 E. 4, p. 7, pi. 18. The true ratio decidendi in this case is not that a man who does a lawful thinf? which causes damafce to another shall answer for it if he could have avoided A. it, but that the act of cutting the thorns, in itself lawful, when coming inco con- flict with the plaintiff's right to the ex- clusive enjoyment of his own land, is subordinated thereto, and becomes un- lawful if it cannot be exercised without violating the plaintiff's superior right. Ante, p. 18. ( p) Baieley v. Clurksoii, 3 Lev. 37. It n s I ^ 370 •INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. i: 361 If one man throws stones, rubbish, or materials of any kind, on the land of another, this is a trespass for which he is respon- sible in damages {(/) . To pour water ouc of a pail into another man's yard, or to fix a spout so as to discharge water upon another's land, or to suffer filth to ooze through a boundary- wall and to run over another's close or yard without his leave or permission, is a trespass, unless a right of way over the adjoining close, or a right to discharge water upon it, or a right for the passage of waste water and refuse through it, has been gained (/•). Trespass — Abuse of a licence or author it 1/ renderimj a person a tres- passer ab iriitio. — When a man has a special privilege or authority given by the law to enter upon lands for any purpose whatever, and he exceeds his authority by doing on the land what he had no right to do, or by staying longer than he had a right to stay, he becomes a trespasser ab initio, and is in the same position as if he were a perfect stranger acting without any colour of excuse or justifica- tion (s). Thus, if, in pursuance of an authority given by tho law to enter upon lands to make a seizure of goods, he exceeds his authority by breaking open the outer doors of a dwelling-house, he is a trespasser ab initio, and all his subsequent acts are tres- passes (t). Trespass — Continuing trespasses. — If a man throws a heap of stones, or builds a wall, or plants posts or rails, on his neighbour's land, and there leaves them, an action will lie against him for the trespass ; and the right to sue will continue from day to day, till the incumbrance is removed. An action may be brought for the original trespass in placing the incumbrance on the land, and another action for continuing the thing so erected ; for the recovery of damages in the first action, by way of satisfaction for the wrong, does not operate as a purchase of the right to continue the injury (h). But, where the injury is not of a continuing nature, and the damages which flow therefrom, when they accrue, have accrued once for all, then the recovery of judgment in a previous action is a good bar (x). lawful, and while upon the premises the licensee forcibly injures the personal property of tho owner, he is not a tres- passer as to tho entry, but is only liable for the injury to the property : Diimont V. Smith, 4 Den. (N. Y.) 319. (<) Attack V. IhamwcU, 3 B. & S. 520 ; 32 L. J., Q. B. 146. («) Ilolmenv. Wilson, lOAd. &E. 503. Bowyer v. Cook, 4 C. B. 236. Ante, p. 56. Each day that the thing forcibly placed upon the land remains there is a continuous trespass, and a judgment in one action does not bar a recovery in another. (:i:) Ante, p. 56. {q) Williams, J., Cox v. Bnrhidge, 13 C. B., N. 8. 438 ; 32 L. J., C. P. 89. Holt, C. J., Mason v. Keeling, 1 Ld. Raym. 608 ; 12 Mod. 330. Bautry v. Huggins, Clayton, 32. Vin. Abr. Tees- pass (B). (>•) Reynolds v. Clarle, 2 Ld. Raym. 1399. {») Com. Big. Trespass (C), 2. Six Carpenters' ease, 8 Co. 146 a. Heed v. Harrison, 2W. Bl. 1218. Aitkenheadf. Blades, 5 Taunt. 197. If a person who has a licence to enter premises for one purpose enters for another or different purpose, he is a trespasser : Malcolm v. Spoon, 12 Met. (Mass.) 279 ; Abbott v. Wood, 13 Me. 116. But if the entry is t , fe r SECT. II.] RIGHTS OF PROPERTY IN LAND. 371 Nuisances {y). — The term nuisance, derived from the French word nuirc, to do hm-t or to annoy, is applied in the English law to infringements upon proprietary rights which interfere with their 362 comfortable enjoyment, but do not amount to a disseisin, either actual or implied. Thus, a man may become responsible for a nuisance by erecting a building which overhangs the house or land of his neighbour, or by constructing a cornice, or fixing a spout, or any projection which causes, or has a tendency to cause, an unnatural quantity of rain-water to descend on his neighbour's house and land {z) ; also, by erecting and working a noisy smith's forge, or noisy workshops {a), or a stinking tallow-furnace, smelt- ing-house, dye-house, lime-kiln, tan-pit, privy, or hog-sty (/>) ; or making a cesspool, the filth of which percolates througli the soil and contaminates the water of his neighbour's well or spring {c) ; or burning lime or bricks ; or erecting a glass-house or brew-house so near to a dwelling-house that the smoke and smell thereof enter the house and render it unfit for habitation {il) ; or setting up a lime-pit for cleaning skins, or a dye-house, and letting the drain- age therefrom run into a water- course or pond, and corrupt the water, or destroy or injure the fish and the fishing {e) ; or disturb- t (y) As to nnisanccs which can be dealt with summarily, see Public Health Act, 1875 (38 & 39 Vict. c. 65), sa. 91—111. (z) reitruddock^ s case, 5 Co. 205. Jiaten's case, ih. 96. Reynolds v. Clafk, Fort. 212. Fay v. Prentice, 1 C. B. 828. In Wood on Nuisances, p. 1, a nuisance is defined as " a wrong arising from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, or from his own improper, indecent, or unlawful personal conduct, making an obstruction of, or injuiy to the rights of another or of the public, and producing such ma- terial annoyance, inconvenience, discom- fort, or hiirt, that the law will presume a consequent damage." The erection of a house so that its eaves overhang the lands of another, or the putting up of a spout or other con- trivance so as to convoy the water there- from to another's lands, is clearly a nuisance : Codman v. Evans, 7 Allen (Mass.) 431 ; Aiken v. Benedict, 39 Barb. (N. T.) 400; Bellows v. Sackett, 15 id. 96. Every person making erec- tions upon the line of his own lands is bound tc keep the water, snow, and ice falling or forming there from being pre- cipitated upon his neighbour's land : Shipley v. Fifty Associates, 106 Mass. 194 ; Ball v. Nye, 99 trf. 682 ; Martin v. Simpson, 6 Allen (Mass.) 102. (a) Bradley v. Gill, Lutw. 69. Elliot- ton V. Feetham, 2 Bing. N. C. 134. In Whitney v. Bartholomew, 21 Conn. 213, while it was held that a blacksmith's B shop is not a nuisance per sc, yet that it might become so either by reason of ex- cessive smoke or noise emanating there- from. The use of fuel which developes dense or offensive smoke is a nuisance : Rhodes v. Dunbar, 57 Pcnn. St. 274. So is smoke that vitiates the taste, or which by reason of its pungency is disagree- able, or which soils clothes hung out to dry : Cartwright v. Gray, 12 Grant's Ch. (Out.) 400. In Dennis v. Eckhardt, 3 Grant (Peun.) 390, a tinsmith's shop near a dwelluig, which distiu-bed residents by the noise made there, was held a nuisance. (A) Poynton v. Gill, Morley v. Pragnell, Cro. Oar. 510. Jones v. Poiiell, Hutt. 135. Bliss V. Hall, 4 Bing. N. C. 183 ; 5 Sc. 504. In State v. Payson, 37 Mo. 361, a pig pen near a highway, which emitted noisome smells to the annoy- ance of travellers, was held a common nuisance. So a cattle pen near a dwelling, in which calves were kept, and by their bleating disturbed the sleep of the occu- pant, has been held a nuisance : Bishop V. Banks, 33 Conn. 118 ; State v. Koster, 35 Iowa, 221. (c) Norton V. Scholejield, 9 M. & W. 666. (rf) Walter v. Selfe, 4 Do G. & Sm. 321 ; 20 L. J., Ch. 433. Jones v. Powell, Palm. 539. See Wood on Nuisances, pp. 603 — 650, where the instances in which brick burning has been held to be a nuisance are given. («) Aldred's case, 9 Co. b^ti. Hodgkin- son V. Ennor, 4 B. & S. 229. Ottawa b2 5 s i ^ ■%■ 372 INJURIES TO mOHTS OF PROPERTY. [CHAP. VIII. ing a decoy-pond by the firing of guns in the neighbourhood of the pond (/) ; or stopping or diverting water that used to run to another's mill (ff). Every occupier of land is entitled to the reasonable enjoyment thereof as a natural right of property, and may maintain an action against any one who allows any filth or other noxious thing pro- duced by him on his own land to interfere with this enjoyment, or who, by artificial means, causes things in themselves inoffensive to pass into his neighbour's property to the prejudice of his enjoy- ment thereof {/i). The rule of law is, that the person who, for his own purposes, brings on his land, and collects and keeps there, anything of a kind or in a quantitj' not necessary for the ordinary enjoyment of his property, and likely to do mischiei if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage whicli is the necessary consequence of its escape ; but he can excuse himself by showing that the escape was owing to the plaintiff's default, or was the consequence of vis major or the act of God. The person whose mine is flooded by 363 the water from his neighbour's reservoir, or whose cellar is : 'k Gas Co. V. Thompson, 39 111. COl ; Drown V. Illins, 25 Conn. 583. The following trades have been held to be primd facie nuisances ; — Fat boiling : Howard v. Lee, 3 Sand. (N. T.) 126 ; Peck v. Elder, 3 id. 126 ; Dubois v. liudtong, 15 Abb. Pr. (N. Y.) 445. Lime kiln : lltitchins V. Smith, 63 Barb. (N. Y.) 252. Tmnerj- : Francis v. Schoellkoppf, 53 N. Y. 152. Privies : People v. Reed, 2 Parker's Cr. Eep. (N. Y.) 160; Treadwell v. Baris, 39 Ga. 84 ; Marshall v. Cohen, 44 Ga. 489. Hog pens: Smith v. McConuJn/, 11 Mo. 517 ; Peg. v. Waterhousc, 26 L. T., N. S. 761. Slaughter houses : Catlin V. Valentine, 9 Paige, Ch. (N. Y.) 575; Brady v. Weeks, 3 Barb. (N. Y.) 156; Allen V. State, 34 Tex. 230. Cattle yards : Bishop v. Banks, 33 Conn. 34 ; III. Centl. P. R. Co. v. Grabell, 50 111. 241 ; Babcock v. iV. J. Stock Yards, 20 N. J. 296. Soap and bone boileries : Hammond v. Les, 3 Sand. (N. Y.) 281 ; Radenburg v. Coats, 6 Grant's Ch. (Ont.) 140; Meigs v. Lester, 23 N. J. 199. Livery stables : Aldrich v. Howard, 8 R. I. 246 ; Burdettv. Swanson, 17 Texas, 289; Morros v. Brewer, Anth. N. P. (N. Y.) 308. Glue works: Charity v. Riddle, 14 F. C. (Sc.) 237 ; Colville v. Middlcton, 19 id. 339. Tripe works: Farquharv. Watson, 17 id. 692; Glasgow Waterworks Co. v. Aird, 18 id. 450. Neats' foot oil : Com. v. Brown, 15 Met. (Mass.) 365. Gas works: Cleveland v. Gas Light Co., 20 N. J. 201. Piling decrtj-ed vegetables near dwelling: Poeh,.ster v. Colhns., 12Biirb. (N. Y.) 339. Stable emitting otfcnsive stenches : Pickard V. Collins, 23 Barb. (N._ Y.) 444. Preparation of blood for Prussian blue, &c. : Jamison v. Hillcote, 12 F. C. (Sc.) 237. Burning black ashes of soap : Itcllamy v. Comb, 17 F. C. (Sc.) 158. Biu-ning horses' hoofs : Gullick v. Trem- litt, 20 W. R. 358. Boiling horseflesh and carrion : Gridley v. Booth, 12 L. T., N. S. 469. Burning fuel mixed with animal matter, or other substances emitting obnoxious smells : Roberts v. Clarke, 17 L. T., N. S. 384. Pondoretto works: Ponderette Co. v. Van Xciircn, 23 N. J. 255. Distillery: Smith v. McConathy, 9 Me. 617. Candle and tallow factory: Allci v. State, 34 Tex. 230. Boiling whale blubber, and fish works : Trotter v. Farnie, 5 W. & S. (Sc.) 649. Collecting or drawing up water, so that it becomes stagnant and emits offensive smells : State v. Stoiighton, 5 Wis. 291 ■,\Beach v. People, 11 Mich. 106. Chemical works: Com. v. Ritmford Chemical Works, 14 Gray (Mass.) 231. Brewery : Rev. v. Morris, Vent. 26. Bone mill: Reg. v. Micklin, 6 W. W. A'B. (Victoria) 68. And any and every use of property which charges the air with noisome smells to such an ex- tent as to render the enjoyment of ad- joining property uncomfortable. (/) Keble v. Hiekeringill, 1 1 Mod. 74, 130 ; 3 Salk. 9; Holt, 14. Carringtonv. Taylor, 11 East, 571. See Ibbotson v. Peat, 3 H. & C. 644 ; 34 L. J., Ex. 118. {g) F. N. B. 184. (/() Hurdman v. North Eastern Rail. Co., 3 C. P. D. 168; 47 L. J., C. P. 368. : SECT. II.] UIGIITS OF PROPERTY IN LAND. 373 •< invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works, is damnified without any fault of his own ; and it seems but reasonable and just that the neighbour who has brought something on his own property (which was not naturally there), harmless to others so long as it is confined to his own property, but which lio knows will be mischievous if it gets on his neigh- bour's, should be obliged to make good the damage which ensues, if he does not succeed in confining it to his own property. But 1 for his act in bringing it there no mischief could have accrued ; ^ and it seems but just that he should at his peril keep it there so ^ that no mischief may accrue, or answer for the natural and antici- > pated consequences (/). The predecessors of the defendants had 5 fenced their land with wire rope, which the defendants allowed to ^ remain, and from time to time partially repaired. From long j. exposure, the strands of the wires composing the rope decayed ; V\ and pieces of it fell to the ground and lay hidden in the grass of S the adjoining pasture, occupied by the plaintiff. The plaintiff's cow grazing there, having swallowed one of these pieces, and ^ having died in consequence, it was hold that the defendants were S liable to compensate the plaintiff for the loss of the cow (/.). So, ^ where the defendants planted on their own land, and at about ^ four feet from their boundary, a yew tree, which grew over the 3; boundary, and projected into the adjoining meadow of the j plaintiff, and the plaintiff's horse, feeding in the meadow, ate of y the yew tree, and was poisoned, and died, it was held that the defendants were liable (/). But a man is not liable to an action, simply because the leaves from a yew tree growing on his land get, by some unexplained means, on to his neighbour's land, and are there eaten by and poison his cattle, the tree not being in a boundary fence, and the defendant not having been guilty of any negligence (m). The occupier of a house is liable for allowing the continuance on his premises of any artificial work which causes a nuisance to a neighbour, even though it has been put there before he took possession. Where, therefore, the damp from an artificial mound on the defendant's land penetrated the plaintiff's wall, it was held that the defendant was liable for the nuisance («). If a man commits a nuisance, and afterwards does away with 364 it, and with all the effects of it, before action brought, the cause (j) Eylaiuhv. Fletcher, h.Ti., S II. Jj. (I) Crowhiirst v. Amersham Burial 339. Snow v. Whitehead, 27 Ch. D. 588; Board, 4 Ex. D. 5. 63 L. J., Ch. 885. Jial/ard v. Toiiiliimii, (in) If'ilsonv.Keivkrrt/.Ij.R.,! (^.B. 29 Ch. D. 115 ; 64 L. J., Ch. 454. 31 ; 41 L. J., Q. B. 60. (k) Firth v. Boieling Iron Co., 3 C. P. («) Broder v. Saillard, 2 Ch. D. 692 ; D. 254 ; 47 L. J., C. P. 358. 46 L. J., Ch. 414. ^ !i . I' 4 Irfj 374 INJURIES TO RIGHTS OF PROPERTY. [CIIAP. VIII. of action is extinguished (o) : bnt the abatement of the nuisance is no defence in point of law against a complaint for an antecedent injury. If damage has been sustained, the defenc'aLt io uul the less bound to compensate for that, because he has promptly and properly repaired his fault (p). A nuisance may bo caused by several persons acting inde- pendently of each other. In such a case it will bo no defence that the injury caused by any one of them might not, if it stood alone, be sufficient to give any ground of complaint, or that it is impossible for tho plaintiff to show what share each has had in causing the nuisance (q). Wliere a nuisance arising from any noxious cr offensive gas or gases is wholly or partially caused by the acts or defaults of several persons, any person injured by such nuisance may proceed against any one or more of such persons, and may recover damages from each person made a defendant in proportion to tho extent of the contribution of such defendant to tho nuisance, notwithstanding that the act or default of such defendant would not separately have caused a nuisance (>•) . Nuisance — Continuing nuisances. — Tho continuance of the nuisance is a fresh injury for which another action may be brought, and so, totics quotics, until the obstruction is removed (v), or the wrongful act done away with {t). And a person is entitled to bring an action for damage by subsidence after receiving com- pensation for previous subsidence (»). Nuisance — Nuisances from the non-repair of\ or from neglcctinrj to cleanse, sewers, drains, and watercourses. — Every occupier is bound to prevent the filth from his drains or cesspools from filtering through the ground into his neighbour's house or land. Where the plaintiff declared that he was possessed of a cellar con- tiguous to the defendant's privy, and parted by a wall, part of the defendant's house, which the defendant, " dehuit, ct so/ebat repa- rare," and that, for want of repair, the filth of the privy ran into the cellar, it Avas moved, in aiTcst of judgment, that, thi being a charge laid upon the occupier of the adjoining land, the plaintiff should have shown a title by prescription to have the wall kept in (o) Bro. Abr. pi. 2. (p) BM\. Twmtymdn, 1 Q. B. 774. (v) Thorpe v. BrinnJiU, L. 11., 8 Ch. G60. See Chipmmi v. r•) The Alkali, &c. Works Regulation Act, 1881 (44 & 45 Vict. c. 37), s. 28. This section does not apply to any de- fendant who can produce a certificate from tho chief inspector, that in the works of such defendant the require- ments of this Act have been comjjlied with, and were complied with when tho nuisance arose. (*) S/iadivellv. Hutchinson, 2 B. & Ad. 97 ; ante, p. 67. {t) Whitehouse v. Fellowes, 10 C. B., N. 8. 765; SOL. J., C. P. 305. (h) Darleij Main CoUicnj Co. v. Mitchell, 11 App. Gas. 127. \ ; I SECT. II.] RIGHTS OF PROPERTY IN LAND. 375 365 repair for his benefit ; " sed non afhcafur ; " for it is a charge laid on the defendant of common right, which by law he is subject to. As one is bound to keep his cattle from trespassing on his neigh- bour's ground, so ho must a heap of dung, if he erects it [x) . Every landowner who constructs a sewer on his own land, and uses it for the purpose of draining his own premises, is bound to keep the filth from his sewer from becoming a nuisance to the adjoining occupiers ; and if, by reason ot an original faulty con- struction of the sewer, the filth therefrom percolates through the soil and floods the collars of the adjoining occupiers, the landowner will be responsible for the nuisance, although such occupiers are his own tenants (//). Wliere the plaintiff and defendant Avere occupiers of adjoining houses, and an old drain commenced on the defendant's premises and then passed under other houses, receiving their drainage, and back again under the defendant's house and then under the plain- tiff's, and did damage by leakage into his cellar, it was held that the defendant was liable for the damage done, although he was unaware of the existence of the drain and was guilty of no negligence, for it was his duty to keep his drainage from passing to the plaintiff's premises otherwise than along its accustomed channel {z) . Provisions are contained in the Public Health Act, 1875, giving power to piu'chase and sell sewer rights («), and to make and drain sewers {h), to alter or discontinue sewers (c), and to cleanse them {(l), and giving powers to the owners and occupiera of pro- mises to drain into sewers of the local authority (e), and power to the authority to enforce the drainage of houses (/). The cleansing of offensive ditches and the removal of filth is also provided for {g). Nnimnce — Offensive smells and noisome trades (It). — A man may, without being liable to an action, exercise a lawful trade, as that of a butcher, brewer, or the like, notwithstanding it is carried on so near the house of another as to be an annoyance to him, in rendering his residence less delectable or agreeable : provided the trade is so conducted that it does not cause what amounts in point of law to a nuisance to the neighbouring house. But if a nuisance [x] Tenant v. GoUUiig, 1 Salk. 21. Hodnkimon v. Ennor, 4 B. & S. 229 ; 32 L. J., Q. B. 231. (y) AMon v. Grant, 3 El. & Bl. 128. (:) Iltimphncs v. CoiisinK, 2 C. P. D. 239. (a) 38 & 39 Vict. c. 55, h. 14. (A) Sects. 15—17. (f) Sect. 18. (d) Sect. 19. («) Sects. 21, 22. (/) Sects. 23—26. {(/) Sects. 48—50. (/() As to offensive trades, see 'Public Health Act, 1875 (38 & 39 Vict. c. 55), Bs. 112 — 115. As to keeping pigs in the metropolis, see Chelsea J'csln/v. Kiny, 17 C. B., N. S. 625 ; 34 L. J., M. C. 9 ; the trade of cattle slaughtering, Liverpool Xcw Cattle Market Co. v. Hodson, L. B., 2 Q. B. 131 ; 36 L. J., M. C. 30 ; the consumption of smoke in Birmingham, Cooper \. Woolley, L. R., 2 Ex. 88; 36 L. J., M. C. 36. \ - i. It oro INJURIES TO RIGHTS OF PROPERTY. [cHAP. VIIJ. i i 366 is created, it is no answer to an action for damages to show that tlio place where the trade is carried on is a fit and convenient place for such a trade, and that the exercise of the trade there is only a reasonable use by the defendant of his own land. The spot may be very convenient for the defendant or for the public at large, biit very inconvenient to a particular individual, who chances to occupy the adjoining land ; and proof of the benefit to the public from the exercise of a particular trade in a particular locality can be no ground for depriving any individual of his right to compen- sation in respect of the particular injury he has sustained from it (/). When, therefore, it is said that "a tan -house is necessary, for all men wear shoes, yet this may bo pulled down if it is erected so as to cause a nuisance to another ; so of a j^lass-house, for they ought to be erected in places convenient for them " (A) : what is meant is, that they must be erected in a place where they will not cause a nuisance to anybody. There is, however, it seems, a dis- tinction in this respect between a trade that injuriously affects pro- perty and one that causes only a certain amount of personal discomfort (/). It is not necessary to prove that the smell is unwholesome. The smell of stied hogs, molting tallow, and other smells, may not be positively noxious ; but they may be very noisome and sicken- ing, keeping all who inhale them in a state of chronic discomfort, though they may not injure or destroy healtli (/«). Trades 'ire, no doubt, carried on for the benefit of the public ; but the primary object is the benefit of the particular manufacturer who realizes the profit of the business ; and it is no answer to a private indi- vidual, who is prejudiced or injured by the exercise of the trade in such a way as to be a nuisance, to say that others aro benefited by it (»). But the injury to be actionable must be such as sensibly to diminish the value of the plaintiff's property and the comfort and enjoyment of it. All the circumstances, including those of time and locality, must be taken into consideration ; and, in counties where great works have been erected and carried on, persons must not stand on their extreme rights and bring actions in respect of every matter of annoyance ; for, if so, the business of the whole country would be seriously interfered with (o). The damage must (i) Bamford v. Tarnley, 3 B. & S. 62 ; 31 L. J., Q. B. 286. Carey v. Lidbittcr, 13 C. B., N. S. 170; 32 L. J., C. P. 105, overrulinar Hole v. Jiarlow, 4 C. B., N. S. 335 ; 27 L. J., C. P. 207. See Jlrffhiff- botham v. Eastern end Continental Uteam Packet Co., 8 C. B. 337. {k) Jones V. Powell, Palm. 536. {I) St. Helen's Smelting Co. v. Tipping, 11 H. L. C. 642 ; 35 L. J., Q. B. 66. (m) Walter v. Selfe, 4 De G. & Sm. 323; 20 L. J., Ch. 433. («) Stockport IVaterivorks Co. v. Putter, 7 H. & N." 160 ; 31 L. J., Ex. 9. (o) St. Helen's Smelting Co. v. Tipping, 11 H. L. C. 642 ; 35 L. J., Q. B. 66. See Wood on Nuisances, Chap. XVII. t* "i I eECT. II.] IIIGIITS OF TROPEUTY IN LAND. 377 be sensible, so that every fairly-instnicfed person can really and 367 clearly perceive it, not merely such as can only bo mado sensible by the microscope or by chemical tests (/)), Smoke, unaccompanied by noise or noxious vapour, may con- stitute a nuisance (7). Brick-l)urning is not in itself a noxious trade (/•) ; for bricks may be burned, by tlie selection and combination of proper sub- stances for burning, without the emission of smoke or disagreeable smells. But if, by the use of coals or impure ashes and animal substances, smoke, and vapour, and noisome gases are communicated to tho air which surrounds and enters tho plaintiff's house, so as to cause inconvenience to the occupiers thereof, and render the house manifestly less comfortable, the brick-burning will be a nuisance, though the pollution of the air may not be carried to tho extent of rendering it noxious to animal or vegetable health. But the incon- venience or discomfort must go to the extent of materially inter- fering with the ordinary physical comfort of human existence, not merely according to elegant or dointy modes and habits of living, but according to plain, sober, and simple notions amongst English people (s). In cases where a man is not carrying on tho trade of brick-making, but is merely digging out tho soil from his own land for the building of a house thereon, and when tho nuisanco, conse- quently, is of a temporary nature, and is also of a trifling cha- racter, the court Avill not interfere by injunction ; for a mnu must have a house to live in ; and it is reasonable that he should make his own bricks out of his own land at a slight temporary inconve- nience to his neighbours (t). Nuisance — Prescriptive rigJits to the exercise of a noisome trade. — If the trade is proved to be a noisome trade tho defendant may, nevertheless, establish a prescriptive right to the exercise of the trade on the particular spot, by showing that he has exercised it with- out molestation or interruption for the period of twenty years (»). " It used to be thought, that if a man knew there was a nuisance, and went and lived near it, he could not recover, because, it was said, it is he that goes to the nuisance, and not the nuisance to him. That, however, is not the law now" {x). (p) Sail in V. Xorth lirancepcth Coal Co., L. R., 9Ch. 705 ; 44 L. J., Ch. 149. (/?) Crump V. Lambert, L. R., 3 Eq. 409. (;•) Wanstead Local Board, i;c. v. Hill, 13 0. B., N. S. 479; 32 L. J., M. C. 135. (s) Knight-Bruce, V.-C, Walter v. Selfe, 4 Do G. & Sm. 323 ; 20 L. J., Ch. 433. Pollock V. Lester, 11 Hare, 256. Jieardmore -v. Trcdwell, 3 Giff. 683; 31 L. J., Ch. 893. £am/ordv. Turnley, 3 B. & S. 62; 31 L. J., Q. B. 286. (<) Att.-Gen. v. Cleaver, 18 Ves. 219. iu) Elliotson V. Fcctham, 2 Bing. N. C. 134; 2 So. 174. Jilinsy. Hall, 4 Bing. N. C. 183 ; 5 So. 504. As to prescriptive rights to foul a stream, kc, see Goldsmid V. Tiiiibridge If 'ells Commissioners, L. R., 1 Ch. 349 ; 35 L. J., Ch. 882. Att.-Gen. V. llichmond, L. R., 2 Eq. 306; 35 L. J., Ch. 697. Att.-Gen. v. Mayor of Basingstoke, 45 L. J., Ch. 726. See Wood on Nuisances, Chap. XX., on "Prescription for Nuisances. " (j5) Byles, J., Holey. Barlow, 4 C. B., N. S. 336 ; 27 L. J., C. P. 208. And 2 Si \ •S 5 i ^ \iA- .378 IN.IURIKS TO RIGHTS OF PROPERTY. [CHAP. VIII. Nuisanw — Noine. — Quiotnoss and freedom from noise are in- 368 diHponsablo to the full and free enj.)ymont of adwolHng-houBe. Every jjorson, therefore, who blows a horn in the night-time in the neiglihourhood of a dwoUing-houso, so as to disturb the repose of the inmates, is guilty of a nuisance, and is responsible in damages, luiloss he can show some justification for the making of a noise (i/). Every person, also, who erects a mill, or a smith's forge, or any noisy machine, or carries on any noisy trade or manufacture ad- joining a dwelling-house, whereby the comfort and quiet of the house are destroyed, and the rest of the inmates disturbed at night, is gui'ty of a nuisance, and is liable to an action for damages, unless he can show that he haw gained a prescriptive right to make the noise by twenty years' user and enjoyment (a). If a belfry is erected so near to the dwelling-house of the plaintiff, that the bolls when rung prevent people from being heard whilst talking in the house, or disturb the rest of the inmates at night, this is such an invasion of the domestic comfort and enjoyment of a man's homo as entitles him to an injunction to prevent the nuisance (a). So, the setting up a powerful brass band, which plays twice a week for several hours in the immediate vicinity of a gentleman's house, is a nuisance (/>). But a nuisance from noise is much more difficult to establish than when the injury complained of is the demonstrable effect of a visible or tangible cause, as when waters are fouled by sewage, or when the fumes of mineral acids passing from the chimneys of factories over land or houses produce deleterious physical changes which science can trace and explain. A nuisance by noise (sup- posing malice to be out of the question) is emphatically one of degree; and the law does not regard trifling inconveniences (f). Annoyance from noise caused by the unusual use of a house, as by turning it into a stable, may be a nuisance, where like annoy- ance from the ordinary use of it would not be (d). Nnimiicc — Wafer. — A person who, for his own purposes, brings upon his land, and collects and keeps there, water in such quantities as to be likely to do mischief if it escapes, is prima facie answerable t m % 5 i sec Tipping v. St. Jfchii's Smell im/ Co., L. R., 1 Ch. 66. Tho rule iii this country has always heeii otherwise, and tho fact that a person goes to a nuisance does not deprive him of his remedies : 2'ayhr v. I'lople, 6 Parker's Cr. Rep. (N. Y.) 3.53 ; Jlradi/ v. llWLo, 3 Barb. (N. Y.) 166; Hour'lly. McVoi/, 3 Rawlo (Pcnn.) 356; Mills v. Jlali, 9 Wend. (N. Y.) 316; Smith v. J'hillips, 8 Phila. (Penn.) 10 ; Catlin v. Valetitiiie, 9 Paige, Ch. (N. Y.) 675 ; Comm. v. Upton, 6 Gray (Mass.) 473. (y) Jt. V. Smith, 2 Str. 703. (.-) Jiradki/ V. Gill, 1 Lutw. 69. i:ilioi- son V. Feel. ham, 2 Bing. N. C. 134 ; 2 Sc. 174. {a) Solum y. De Held, 2 Sim., N. S. 133; 21 L. J., Ch. 169. Sco Wood ou Nuisances, Chap. XVIII., on " Noiso and Vibration." (A) VaUer v. Brewster, L. R., 5 Ei^. 25 ; 37 L. J., Ch. 33. {c) Seo the observations of Lord Sel- borne, L. C, Gaunt v. Finney, L. R., 8 Ch. 8 ; 42 L. J., CI;. 122. (rf) Ball V, Ray, L. R., 8 Ch. 467. SECT. II.] RIGHTS OF PUOPERTY IN LAND. 870 for all the damage which is the natural oonsoquonce of its oscopo, although he has not been guilty of any negligence {(•). Thus, if t (») Jli/liitKla V. FMeher, L. R., 3 II. L. 330. fi'ilHon V. Xiir Bcilfmil, 10!) Mush. 201 ; Vahill v. Eimtimiii, 18 Minn. il\. J'or injuries ri'MultinK from uatiirnl oauHcH a inTMDU Ih novcr liiiblc, however oxtentiive or diHiiMtrouH they may Ito, nor witli however litthi hihouror expense lie conld remove the caiiMO and prevent tiio injury. Ail Hueh duniago \n i/diiiiimn iibm/iif iiijiiiiil. In U'(M(liiift' V. I'isrlirr, 17 JJarb. (N. Y.) 224, tlie defendant was theowniT of a traetof nwamp hiudadjoin- inff tlie puiintiH'H farm, upon which a hirge body of water wuh eulleoted, wliicli remained Htaj^naiit, and the cvapora- tiont4 from whieii were exceedingly in- iuriouH to tliu liealth uf the neighbour- hood. The Hwamp could easily bo drained, and at a small expense ; lut the defendant neglected and refused to drain it. The plaintitf brought an action against liim for injuries resulting to him from the miasmatic emissions fiom tlie swamp. The (tourt held that an action could not bo predicated of a nuisance that resulted from natural causes purely, no matter liow serious or disastrous the conseciueucos might bo ; and that a man is not obliged to drain his land, however injurious his neglects t(j do so may bo to other.s, nor liowevcr easily or ehoapily it might bo done. See, also, Jliirliiitl v. Ariiislroiu/, 11) Barb. (N. Y.) 101 ; Muhr v. (/dtilt, 10 AVis. 313 ; Jiiw/l v. Liyhl, 70 Tenn. St. 2G8. So if when a person in the cxerciso of liis right of dominion over his owii premises, for the usual and ordinary purposes to which such premises aro devotesi; him. Thus, in J-Ulisoii V. Comiinmiiuners, o Jones, Eij. (N. (J.) 221, the court refused to enjoin the clearing up of marsh land Jiear the plaiutill's premises, upon the ground that the cutting down of the trees and exposing the soil to the direct rays of tho sun would cause tho liberation of unwholesome and noxious vapours. Tho court held that this was a legitimate and ordinary exercise of dominion over pro- perty essential to its iniprovemcnt and ordinary enjoyment, witli which courts could not interfere, and for injuries resulting from which no action at law or in equity could bo predicated. Tho case of iVolir v. Gdiilt, 10 Wis. 313, is still further illustrative of tho fact, that no nuisance can be predicated of a natural cause, except when it is the result of 8omo interference with the natural order of things by " tho hand of man." lu that case the defendant was tho owner of certain lands, and tho bed of a running Htream, which fonned tho outlet of a natural pond. Ui^ya tho occ:asion of a sever;) trcshet largo quantities of earth and debris wore do- I)osited i'l the bed of the stream, which choked the free passage of tho water, and sent it back upon the plaintiff's land, and X'roduced sericus danuigo. Tho ili'fendant had no dam upon the stream, and had not by his own act, or thatof others, in any manner contributoil to tho cause or the result. The plain- titf, claiming that it was the duty of tho defendant to clear out the stream, and restore it to its natural condition, brought an action against him for the inj uries ho had sustained by tho flooding of his lands. 13ut tho court held that tho actiim would not lie ; that no man could bo nuule liable for injuries resulting from purely natural causes ; and that iu order to create an actionable nuisance, tho hands jf man must have contributed thereto. In this ease, if tho defendant had erected a dam upon tho stream, or in any manner interfered with the natural flow of the water, bo that tho choking up of the stream eotdu bo tra give him a remedy." The mere fact that natural causes combino with artificial to produce an injury that would not have hpppened except for the artificial cause, can never be a defcujc. If ^atu^al causes did not coinbine with artificial, no nuisance would arise. It is not the fact that a person can-ies on a trade that libe- rates noisome smells, smoke, or noyious vapours upon his premises that Tnaiies the cxereiso of the trade by him there a nuisance, but because he does not confine its iU effects to his own premises. This ho could always do, excepl, for the fact that the gases liberated by him are minglecl with the atmosphere, and in the natural process of distribution are carried by it over the premises of others. Except for the fact that the air is con- stantly "travelling," so to speak, all the ill effects of his trade would be con- fined to hisown premises, and no nuisance would arise. Thus it will be seen that in all cases of injury from purely natural causes an actionable nu'janco does not exist; but when the injury results from natural causes, and would not have arisen CT.cept for some act done by man, the fact that the injury results in part from the one cause and in pare from the other is no defence, but liability attaches for all the consequences precisely the same as though the entire injury had resulted from artificial causes : J'coplev. Totcnsend, 3 Hill (N. Y.) 479 ; Thinzey v. Aur/iista, 47 Ga. 263 ; J)el/ous v. Siic/ctlt, 15 Barb. (N. Y.) 96 ; Mills v. Hall, 9 Wend. (N. Y.) 315; Caliill v. Eastman, 18 Minn. 324 ; Jtoolrr v. Terkins, 14 Wis. 79 ; Miller v. Trushart, 4 Leigh (Va.) 569 ; StouffJ'ton V. Stale, 6 Wis. 271 ; Mtinson v. Fvople, 5 Parker, Cr. Rep. (N. Y.) 16 ; Wood on Nuisances, pp. 115 — 139. (/) Hiirdman v. yorth Eastern Hail. Co., 3 C. P. D. 168 ; 47 L. J., C. P. 368. ig) Whalley v. Lancashire (• Yorkshire Rail. Co., 13 Q. B. D. 131 , o3 L. J., Q. B. 285. ■; : SECT. II.] RIGHTS OF PROPERTY IN LAND. 081 the act of God or vis major, such as a storm or an extraordinary rain- fall which could r•) Saxby v. Manchester ^ Sheffield Rail. Co., L. R., 4 C. P. 198 ; 38 L. J., C. P. 164. («) Bishop V. Trustees of Bedford Charity , 1 El. & El. 697 ; 28 L. J., Q. B. 215 ; 29 ib. 53. Payne y. Rogers, 2 H. Bl, 349. SECT. II.] RIGHTS OF PROPERTY IN LAND. 387 had the use and occupation of the drain and sewor. Proof tliat the defendant occupies the land throu/). This has been held to be the case where the thing demised con- sisted of a wall erected so as to obstruct the access of light and air to ancient windows (s) ; or a dam or mound of earth stopping up the channel of a river or watercourse, or keeping a mill-pond at an undue elevation (a) . But, if the landlord demises tenements and premises which are not in themselves a nuisance, but may or may not become a nuisance, according to the mode in which they are used by the tenant, the landlord cannot be made responsible for a nuisance created upon them by the tenant. He is not re- sponsible for enabling the tenant to commit a nuisance if he pleases. Therefore, where the landowner erected a coffee-shop with a low chimney under the plaintiff's windows, and let the coffee-shop to a tenant who lighted a fire in the chimney and created a great smoke, which penetrated the plaintiff's dwelling- house and caused a nuisance, it was held that the landlord was not responsible for this nuisance, as the tenant could have burnt coke or charcoal in the cliimney, and have used the chimney with- out necessarily creating a great smoke, or might have abstained from making fires at all when the wind was in such a direction as to carry the smoke to the plaintiff's house (b). An occupier who uses premises demised to him so as to create a nuisance is, of course, always responsible for the consequences of his wrongful act. The landlord is responsible to the occupiers and proprietors of the adjoining property, if he demises houses which are in a 377 ruinous state and dangerous to the neighbourhood, either from original faulty construction, or from want of proper and timely repair (c), unless at the time of the demise he did not know that («) Per Cur., liosewell v. Fry or, 12 Mod. 639 ; 2 Salk. 460. Ihmnpson v. Gibson, 7 M. & W. 462. (:r) M. V. Tedbj, 1 Ad. & E. 822. Marshall v. Cohen, 44 Ga. 488 ; Smith v. Humbert, 2 Kerr (N. B.) 602. (y) Thompson v. Gibson, 7 M. & W. 456. (r) Rosewell v. Pryor, supra. {a) Roll. Abr. Nuisance, K. 2. Leslie V. rounds, 4 Taunt. 649. Bishop v. Trus- tees of Bedford Charity, 1 El. & El. 697; 28 L. J., Q. B. 216 ; 29 ib. 53. (4) Rich V. Basterjicld, 4 C. B. 806. Seo Brown v. Busscll, L. R., 3 Q. B. 261. (c) Toddv. Flight, 9 C. B., N. S. 377; 30 L. J., C. P. 21. £. V. Fedly, 1 Ad. I SECT. II.] UiailTS OF rUOPKKTY IN LAND. 389 the houses were in a dnngorous state, and was not to blame for not knowing it, and the tenant has covenanted to repair {d). But, if the houses and buildings are in good repair and condition at the time of the demise, an., subf^equently become ruinous and dangerous to the neighbourhood, the landlord is not responsible for the nuisance, unless ho has taken upon himself the burden of repairing and maintaining the premises during the existence of the lease {e), or has renewed tlie lease after the houses had become ruinous and in danger of falling ; for an owner of a house is not as such liable for want of repair (/). When both landlord and tenant are responsible for the injury, the plaintiff may proceed against either at his election. But ho can have only one satisfaction for the same wrong ; and, having sued and recovered judgment against one, ho cannot recover against the other {(j). Injuries to ritj/its of common. — A commoner may maintain an action for an injury done to the common by taking away from it the manure which was dropped on it by the cattle, though his proportion of tlie damage may be inappreciable; for the repetition of a tortious act of this kind might eventually be made the foundation of a right, to the serious injury of the other com- moners. The action may be brought by the lord, or by any one of the commoners ; and all the commoners may maintain separate actions for the ^vrong (//). If one commoner puts more cattle on the common than he is entitled to do, ho is liable to be sued by all or any one of the other commoners who have a right to depasture beasts upon the same common ; and it is no answer to the action that the plaintiff has himself surcharged the common, or that the damage is insigni- ficant ; for the wrong-doer might, by repeated torts of this sort, eventually enlarge his right. But, if the beasts have been put upon the common by the lord of the manor, or with his licence and permission, the commoner cannot maintain an action, unless he has sustained actual damage, and can show that there was not 378 a sufficiency of pasture for his beasts (i) . Any act that totally & E. 822. Nchon v. Liverpool Brewery Co., 2 C. P. D. 311 ; 46 L. J., C. P. 676. See also Anderson v. Oppenheim, 5 Q. B. D. 602 ; 49 L. J., Q. B. 708. (rf) Gwinnell v. Earner, L. K., IOC. P. 668. See Wood on Nuisances, pp. 950 —965. («) Tayne v. Rogers, 2 H. BI. 349. Leslie v. Pounds, 4 Taunt. 648. Bishop V. Triutees of Bedford Charity, 1 El. & El. 697 ; 28 L. J., Q. B. 216 ; 29 ib. 63. Jtobbinsv. Jmus, 15 C. B., N. S. 221 ; 33 L. J. , C. P. 1 . Sco Wood on Nuisances, pp. 126—129 ; Benson v. Suarez, 28 How. Pr. (N. Y.) 511. (/) Chauntlery. Robinson, A Exch. 173. Q) Rosewell v. Pryor, 2 Salic. 460 ; 12 Mod. 636. Brent v. Haddon, Cro. Jac. 566. (A) Pindar v. Wadsworth, 2 East, 159. (i) Hobson V. Todd, 4 T. E. 73. Smith V. Feverell, 2 Mod. 7. Greenhow v. Ilsley, Willes, 619. I 5 ^ ki 390 INJUUIK8 TO inOllTS OF Pltorr.RTY. [chap. VIII. 'il 1 destroys tlio liorbago, as feeding innumorablo rabbits on a com- mon, will support an action against tlio lord (/i). A commoner may sue a railway company for disturbance, if they have made a railway over the common without making him compensation for his riglits under the Lauds Clauses Act, although they have compensated the lord of the manor and taken a convey- ance of the soil from him (/). IiiJiiricH to ri(jht8 of initer — Bofikmcut of springs and running streams. — Every person who throws dirt and rubbish into a stream 80 as to block up the channel, or defiles the water with gas refuse and filth, and prevents the riparian proprietors and others from having the beneficial use of the water they have been accustomed to have, is guilty of a nuisance, and may be made responsible in damages (;«), unless ho has gained a prescriptive right to carry on an offensive trade on the river- bank, and corrupt the water («)• Provisions for the protection of water are contained in the Public Health Act, 1875 (o). Injuries to rig/its of uafer — Disturbance of tfie permissive use and enjoyment. — A landowner or occupier of a house, who receives permission from an adjoining landowner to draw water from the premises of the latter through a pipe or watercourse, is entitled to an action for damages, if the water is fouled by a wrong-doer, and damage is sustained by him from the fouling of the water. Though there may be no right on the part of a plaintiff to have water flow to his premises, yet, if the water does come, and the defendant fouls it without having any right so to do, and so causes foul water to flow into the plaintiff's premises, and the plaintiff sustains damage therefrom, and the defendant cannot justify, the plaintiff will be entitled to recover all the damage he has sustained from the wrongful act. The plaintiff in such a case relies upon no title to the water as a riparian proprietor, but merely alleges that he was lawfully in the enjoyment and use of water flowing through his premises in a pure and unpolluted state, and that the defendant wrongfully fouled it (jo). Injuries to the right of support. — If a house is de facto supported by the soil of a neighbour, this is a sufficient title to the support against any one but that neighbour, or one claiming under him {q). 379 A man who should prop his house up by a shore resting on his (k) Wells V. WatUug, 2 "W. Bl. 1233. (/) Stoncham v. London S; Brighton Rail. Co., L. R., 7 Q. B. 1 ; 41 L. J., Q. B. 1. {m) Murgatroyd v. Itobinson, 7 EI. & Bl. 391 ; 26L. J., Q. B. 233. Hodgkin- son V. Ennov, 4 B. & S. 229 ; 32 L. J., Q. B. 231. Stockport Water Works Co. v. Totter, 7 H. & N. 160 ; 31 L. J., Ex. 9. (m) Bealey v. Shaw, 6 East, 214. See Wood on Nuisances, p. 501, Chapter on " Pollution of Water." (o) Sects. 68—70, and sect. 332. [p) Laing v. Whakij, 3 H. & N. 685 ; 27 L. J., Ex. 422 ; affirming Whaley v. laing, 2 H. & N. 476. {q) And as to right of support of buildings by buildings, see ante, pp. 306, 331. 8KCT. II.] niOIITfi OF PUOPEHTY IN LAND. 391 neighbour's ground, would have a right of action against a stranger who, by removing it, should cause the house to fall, though ho could have no action against his neighbour, if the latter took it away, and caused the same damage (r). Injuries to right of support — Ncyligvncc in jm/liiiff doirn houses — Nvijiigcnt cxcnvatiom. — It is the duty of all persons to use duo care and skill, and take due, reasonable, and proper precautions in pulling do^vn houses and walls which rest against, or are in contact with, an adjoining house or wall ; and, if an injury is sustained from a neglect to exercise such care, skill, and ])recaution, a wrong is done, and the wrong-doer is responsible for the damage («) ; and it is no answer to an action for damage done to set forth that the damage was repaired by the defendant before action, although the fact may bo given in evidence in reduction of damages {t). If a man negligently and carelessly excavates his own land close to the foundations of his neighbour's house without giving the latter any warning, or giving him an opportunity of shoring up or protecting his house, the careless excavator will be responsible for the damage he occasions (»/) . But the duty of taking care does not arise where the excavator is ignorant of the existence of the thing which may be injured by the want of care. Thus, where a landowner exca- vated in his own land close to a cellar of his neighbour's, not knowing of the existence of the cellar, it was held that he could not be made responsible for an injury to the cellar {r), no right to support having been gained by long enjoyment. Obstructions to the access of light. — To establish a cause of action for an obstruction to the access of light to the plaintiff's ancient windows, the plaintiff must prove a substantial privation of light, sufficient to render the occupation of his house comparatively un- comfortable {y), or to prevent him from carrying on his business as ^ 3 I (»j JeJ'ries v. Williams, 5 Excli. 800 ; 20 L. J., Ex. 14. Seo Wood on Nui- sances, Chapter V. (,v) Tioicvr V. Chadwick. 3 Bing. N. C. 334 ; 6 Bing. N. C. 1 ; 8 Sc. 19. Walters V. Ffwl, M. «& M. 3C5. Davics v. Loudon % Blackwall Hail. Co., 1 M. & G. 799 ; 2 Sc. N. R. 74. (<) Tai/lor V. Steiidall, 7 Q. B. 634. (k) Dodd V. Holme, 1 Ad. & E. 50G. Bradbce v. Christ's Hospital, 4 M. & G. 768. Massey v. Goiider, 4 0. & P. 1C5. Jones V. Bird, 5 B". & Aid. 837. Tlio penalty which the Metropolitan Build- ing Act (18 & 19 Vict. 0. 122), by s. 94, imposes upon any building-owner who fails to make good the damage done to an adjoining owner by the execution of any work authorized by him, is cumu- lative upon the remedy by action. Wil- liam V. Oolding, L. B., 1 C. p. 69 ; 35 L. J., C. P. 1. {x) Chadwirk v. Trower, Bing. N. 0. 1; 8Sc.20. Seoliylamh\.Flelc/icr,'L.Il., 3 H. L. 330, ante, p. 368. There is no duty imposed by the Metropolitan Build- ing Act upon a budding -owner, who piUls down a party wall under its autho- rity, of protecting by a boarding or otherwise the rooms of the adjoining owner which are left exposed to the weather while the wall is being re-built. Thompson V. Uill, L. E., 5 C. P. 564 ; 39 L. J., C. P. 264. (y) See Kdk v. Pearson, L. R., 6 Ch, 809. City of London Brewery Co. v. Ten- nant, L. B., 9 Ch. 212 ; 43 L. J., Ch. 457. Wo have -^een, by a previous note, that in this country the doctrino prevail- ing in England relative to ancient lights does not prevail. But where a right to have the light enter at certain windows 392 INJURira TO RIGHTS OF PUOPERTY. [CIIAP. VIII. 380 bonofioially and profitably as ho had formerly dono (s). Tho more diminution of a ray or two of light will not suffico for the maintonanoo of an action {a), Tiioro is no positive rulo of law on tho subject ; but tho question of tho amoimt of obstruction is always a question of fact which depends on tho evidence in each case (/>). But the owner of tlio dominant tenement has a right to all tlio light which ho has actually enjoyed ; and tho owner of the servient tenement is nf)t at liberty to raise buildings to a height whicih will subtend an angle of 4/5*' measured from a base lino level with tho centre of tho plain- tiff's light, if by so doing ho will cause a serious diminution of the amount of light which the plaintiff has actually enjoyed up to that time (c). The owner of the right of light is entitled to tho amount of light lie has actually enjoyed, irrespective of the purpose for which he has enjoyed it, so that tlie actual modo of occupation of the dominant tenement is not the test of tho right {((). Justification of injuries to land. — A trespass may be justified on tho g-round that it was committed in the exercise of some legal or personal authority or right, or excused as having been dono in self- defence, in order to escape from some pressing danger or appre- hended peril (f;), or in defence of the possession of a man's goods and chattels, or cattle, sheep, or domestic animals ; for, '^* if I drive my beasts along tho highway, and you have open, iminclosed land adjoining the highway, and my beasts enter your land and eat the herbage thereof, and I come freshly and chase them out of your land, you shall not have any action against me, because tho chasing them was lawful " (,/'). So, if my goods have been taken by you, and placed on your land, I may justify my entry on your laud for the purpose of re-taking them {g). If a man is bound by contract 4 has been acquired by grJ""'*'! f^tprcss or implied, tho rulew as to obntructions thereof stated in the text prevail. (z) Dent V. Auction Mart Co., L. R., 2 Eq. 238, 246 ; 35 L. J., Ch. 655. (a) Hack v. Stacey, 2 C. & P. 466. Tarker v. Smith, 6 ib. 438. Friuffle v. JFenifiam, 7 Hi. 378. JJ'ells v. Odi/, ib. 410. Ciirricm' Co. v. Corbett, 4 De G., J. & S. 764. The Metropolitan Build- ing Act, 18 & 19 Viot. 0. 122, which, by sect. 83, gives a right to the building- owuer to raise any structure, &o., upon condition of making good all damage occasioned thereby to the adjoining pre- mises, does not authorize the erecting of such a structure as will obstruct ancient lights. (6) Parker v. First Avenue Hotel Co., 24C!h.D.282; 49L.T.318. Ecclesiastieal Commi>»ioners v. Kino, 14 Ch. D. 213 ; 49 L. J., Ch. 829. (c) Theed v. Debenham, 2 Ch. D. 165. (rf) Aynnleii v. Glover, L. R., 18 Eq. 544, 651 ; 10 Ch. 283 ; 4t L. J., Ch. 523. Moore v. Hall, 3Q. B. D. 178 ; 47 L. J., Q. B. 334. (<) 37 Hen. 6, 37, pi. 27 ; and post, p. 383. (/) Catesby, arg., 6 Edw. 4, 7, pi. 18. (Jooduyn v. Cheveleij, 4 H. & N. 631 ; 28 L. J., Ex. 298. {g) 2 RoU. Abr. 565, pi. 9. Where cattle stray from tho enclosure of tho owner to the lands of another, the owner of the cattle may, even though forbidden to do so by the owntr of tho land, enter the premises to get his cattle, if he can do so peaceably: Richardson v. Anthony, 12 Vt. 273; but he must not let down a fence for the purpose of getting them out : Gardner v. Rowland, 2 Jred. (N. C.) 247. So a person who has property upon the land of another, which was placed there by the consent of the owner, may lawfully enter to carry it away, as bark peeled from trees uador an agreement I SECT. II.] UiailTS OF PROPKRTY IN LAND. Dm or proscription to repair a fonco botwocn my land and lii», and lio noglocts to repair, and by reason thereof my beasts got on to his land, it ia lawful for mo to go into his land after ray bnosts ; ond I 381 may plead this as a jtistifioation for tho trespass, because it was rendered neecssary by his default (//). JuHtification — Lihvruin friicmi'iifidn. — At common law, if a man had a right to the possession of land and a right to enter thereon, ho might enter and obtain possession with force and arms, and retain possession by force, which gave an opportunity, wo are told, to powerful men to enter upon land nnder protenco of feigned titles, and forcibly eject thoir weaker brethren (/) ; and, therefore, it was enacted {/>), " that none henceforth make entry into any lands and tenements, but in cases Avliero entry is given by tho law ; and in that case not with strong hand, nor with multitude of people, but only in a peaceable and easy manner " (/). A mere trespasser cannot, by tho very act of trespass, immediately, and without acquiescence on the part of tho landowner, become possessed of tho land upon which ho has trespassed, and whicli he tortiously holds; and ho may, consequently, bo expelled by main force («<). A mere intruder upon land, who has been allowed to nin up a hut and occupy it, has no right to the hut or to the possession thereof ; and the landlord may enter and pull down the hut about tho ears of the occupants, and remove the materials (it). But tho dweiling- houses of strangers cannot bo pulled down, whilst people are living in them, for tho mere purpose of abating a nuisance or preventing the enjoyment of some incorporeal right, such as a right of com- mon (o). The rightful owner cannot, in any case, when he has a right of entry, whether legal or equitable, bo made responsible in damages for a trespass upon his own land ; for he is no trespasser, if he has a right t) go upon it (p). But, if he assaults and expels persons who, }\aving originally come into possession lawfully, continue to hold unlawfully, after their title to occupy has been determined, he may be made responsible for the assault, and be indicted for a forcible entry (q), though he cannot be made respon- sible in damages for the expulsion {>•). Having a right to enter i 'A 5 with the owner that he should have the bark for peeling them : Ncttleton v. Syken, 8 Met. (Mass.) 34. So, if his property has been wrongfully taken from him, and placed upon tho land of another, ho may lawfully enter to take it away: Chambers v. Sedell, 2 W. & S. (Penn.) 225. (h) 2 Roll. Abr. Teespass, 565, pi. 4. (i) Bao. Abr. Foeciblb Eiitby. (A) 5 Eic. 2, c. 7. (/) As to recovery of possession by persons forcibly expelled, see 8 H. 6, 0. 9 ; 31 Eliz. o. 11 ; 21 Jao. 1, c. Id. («») Browne v. Dawson, 12 Ad, & PI. 629. («) Dacison v. Wilson, II Q. B. 890; 17 L. J., Q. B. 196. («) Jones V. Jones, 1 H. & C. 1 ; 31 L. J., Ex. 506. But see Diivics v. IFil- liams, 16 Q. B. 546 ; 20 L. J., Q. B. 330 ; post, p. 397. (/)) Davxson v. Wilson, supra. In) Netvlon v. Harland, 1 M. & G. 644 ; 2 Sc. N R. 474. (/•) Pollen v. Brewer, 7 C. B., N. S. 37a. ...fc,.||. 394 it';! .1 .! INJURIES TO RIGHTS OF PROPERTY. [CUAP. VIII. upon his own land, he may do so peaceably ; and, if his entry is reeisted hy force, he may, it seems, repel force by force (s). ** Where a breach of the peace," observes Parke, B., "is committed by a freeholder, who, in order to get into possession of his land, assaults a person wrongfully holding possession of it against his 382 will, although the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable \kj the other party. It is a perfectly good justification to say that the plaintiff was in possession of the land against the will of the defendant, who was the owner, and that the defendant entered upon it accordingly " {t). A licence by a tenant to his landlord to eject him without process of law is void as being contrarj' to the statute (m) . Although a wrong- doer has allowed the person entitled to enter peaceably through the outer door, it is still illegal to turn the wrong-doer out with violence (x). Damages cannot be recovered against the rightful owner for a forcible entry on land ; for the statute (y) only makes a forcible entry an indictable offence, and does not create any civil remedy for it. But for any independent wrong, such as an assault or injury to furniture, committed in the course of the forcible entry, damages can be recovered, even by a person whose possession was wrongful, for the statute makes a possession obtained by force unlawful, even when it is so obtained by the lawful owner (s). Justification — Legal Process. — An entry upon land in'pursuance of a warrant of a county court authorizing the high bailiff to give possession under the 19 & 20 Vict. c. 108, s. 50, is not justifiable, unless the party obtaining the warrant has a lawful right to the possession; and the production of the warrant alone, without proof that the party in whose favour it was issued is entitled to the land, is not, except so far as the officers of the court are con- cerned, any answpr to an action of trespass brought by the person in possession, at any rate if he was not a party to the action in which the warrant was issued («). When the defendant justifies the demolition of a house imder the powers and provisions of the Metropolis Local Management Act (6), or of a portion of a house projecting beyond the general line of the street xmder the Metropolis Local Management Amend- (») Newton v. Harland, 1 M. & G. 644; 2Sc. N. R. 474. {I) Hancy v. Brydgcs, 14 M. & W. 442 ; 1 Exch. 261. Davison v. Wihon, 11 Q. B. 890. Meriton v. Coombes, 9 C. B. 787 ; 19 L. J., 0. P. 336. (u) Eduiek v. Haw. •■, ISCh.D. 199 ; 60 L. J., Ch. 697. («) Edwiek v. Hawkea, svpra. (y) 6 Ric. 2, c. 8. [z) Bcddall v. Maitland, 17 Ch. D. 174; 50 L. J., Ch. 401. (a) Hodson v. Walker, L. R., 7 ZLjc. 66; 41 L. J., Ex. 61. («) 18 & 19 Vict. 0. 120, 8. 76. SECT. II. RIGHTS OF PROPERTY IN LAND. 395 ment Act (c), it must he shown that the person damnified had an opportimity of being heard before the board prior to the exercise of the power (rf). The breaking and entering a dwelling-house without warrant 383 to make an arrest for felony, or to prevent the commission of murder, art justifiable; but it must be shown, in the first case, that a felony had been committed, and that there was reasonable ground for believing that the felon was in the house (). So, where the t ip) Woody. TTflHrf, 3 Exch. 772. Roch- dale Canal Co. v. King, 14 Q. B. 135, 138. Ante, p. 39. In Freedenatein v. Heine, 6 Mo. App. 287, an action was broug'htfor causing' surface water to run oft' upon the plaintitl's lands. No actual damage was shown, but the court held that a re- covery might be had for an injury to the right. As a rule, however, in an action for a nuisance the recovery is limited to the actual damage: Thayer v. Brooks, 10 Ohio, 161 ; Luther v. Winnistmount Co., C Cush. (Muss.) 171. Where the injury is of a visible, tangible character, the damage is susceptible of easy estimation ; but in a majority of instances the subject of damages rests largely in the discretion of the jury : Frink v. H. R. Co., 20 La. An. 25. Where an action is brought for an injury to the comfortable enjoyment of business, by a nuisance, no definite rate for fixing the amount of damages can be given, as, in the very nature of things, the subject-matter affected is not susceptible of exact measurement ; and the jury are necessarily left to say what, in their judgment, the plaintiff ought to have in money, and what the defi .'ndant ought to pay, in view of the discomfort or annoyance to which the plaintiff and his family have been subjected by the nuisance ; and, whether the verdict is large or small, if, in "lew of the evidence, it has any reasonable foundation, it will not be disturbed because it is too small on the one hand, or too large on the other : Fierce v. Bart, 8 Cow. (N. Y.) 605 ; OM/rtcrt v. R. R. Co., 38 N. Y. 455; Fike V. Boyle, La. An. 362. But in the case of an action by the reversioner for an injury to the estate the damages are usually the subject of easy computation. Thus, if the injury complained of is the loss of a tenant, the actual rental vali'.e of the premises during the period that the premises have remained unoccupied is the limit of recovery: Francis v. Schoellkoppf, 53 N. Y. 152 ; IVcssom v. Washburn Iron Co., 13 Allen (Mass.) 95. Or, if the injury is to the value of the premises themselves, the difference in the value of the premises before the nuisance existed, and their value with the nuisance there, is the measure of damage : Feck V. Elder, 3 Sand. (N. Y.) 126 ; Bana v. Valentine, 5 Met. (Mass.) 8. In fieeley v. AUkn, 61 Penn. St. 312, it was held, in the case of an injury to a water-power by filling the water with tar. bark, that, in ascertaining the mea- sure of damages, evidence was admis- sible as to the value of the land with and without the nuisance. In Selma R. R. Co. V. Knapp, 42 Ala. 480, it was held, when the rental value of the pro- perty had been diminished, that, for the purpose of establishing that fact, it was not competent to show that the rental value of other property had been di- minished by the same nuisance. It has been held that when lands have been laid out into building lots, even though no buildings are erected thereon, the owner may recover for their depre- ciation in value by the erection of a nuisance iu their vicinity; that is, he may maintain an action for the differ- ence in their market value : Feck v. Elder, 1 Sandf. (N. Y.) 126 ; Bana v. Valentine, 6 Mete. (Mass.) 8. Butin Califomiait was held that in an action to recover for special damages a. .sing from obstructing a street in front of the plaintiff's pre- mises, evidence that the value of the premises was thereby diminished was inadmissible : Hopkins v. Western Fac. R. R. Co., 60 Cal. 190. And the fact that the premises have been increased in value by reason of the nuisance will not prevent the recovery of damages to sup- port the plaintiff's right: Francis v. Schoellkoppf, 78 N. Y. 152 ; Wessom v. Washburn Iron Co., 13 Allen (Mass.) 95. In the first instance, in an action for a nuisance, the i-,oovery is limited to the actual damage sustained : Harsh v. Butler, 1 Wright (Penn.) 99 ; Thayer v. Brooks, 10 Ohio, 161 ; McKnight v. Rat- cUffe, 44 Penn. St. 156; Hatch v. Buight, 17 Mass. 289 ; Shawv. Cuminisku, 7 Pick. (Mass.) 76 : but if the nuisance is con- tinued after a verdict at law establish- ing the nuisance, exemplary damages DD \ RS m m 81- i iih 402 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. 889 defendant, a riparian owner on the banks of a stream wliicli fed a spout, the water of which the plaintiff, in common with the not only muy, but shall bo given, and that to Huch an extent oh to secure an abutomout of the wrong : Bradley v. Amen, 2 Hay. (N. C.) 899. The fact that the perHon maintaining the nui- saneo continues its exercise after his right to do so has been denied by a verdict of a jury, is regarded as a wan- ton and wilful invasion of another's right, which clearly entitled the party injured to exemplary damages : New Or- leans, (^r. R. R. Co. V. Stutham, 42 Miss. 607. In Morfmdy. Woodivorth, 7 Ind. 83, an action was brought against the defendant for a nuisance committed by his servants. The plaintiff claimed a recovery in excess of actual damages by way of punishment, and the court re- fused the claim upon the ground that the defendant personally was not at fault. It is only in instances when the injury is inflicted from wanton or mali- cious motives, or a reckless disregard of the rights of others, or when the act re- sults in great hardship and oppression, that punitory damages are given : Nngle V. JUorrisoti, 34 Penn. St. 48 ; Dorset/ v. Manlove, 14 Cal. 663 ; Uodtjson v. Med- ivard, 3 Grant (Penn.) 406; Borsl v. Allen, 30 111. 30 ; and these elements exist when, after the legal right is de- termined, a party goes on with a nui- sance injurious to others, and he cannot, by making changes in the method of his use of the property, screen himself from liability for exemplary damages. Where the damages are of a permanent character, and go to the entire value of the estate affected by the nuisance, arecovery may be had of the entire damages in one action : Troi/ v. Cheshire R. R. Co., 23 N. H. 101 ; Cheshire Turnpike Co. v. Stevens, 13 ibid. 28; Parks v. City of Boston, 15 Pick. (Mass.) 198. Thus, in an action for overflowing the plaintiff's land by a mill dam, the lands being sub- merged thereby to such an extent, and for such period, as to make it useless to the plaintiff for any purposCj the jury were instructed to find a verdict for the plaintiff for the full value of the land : Anonymous, 4 Dall. (U. S.) 147. So, too, when a railroad company; by per- manent erections, imposed a continuous burden upon the plaintiff's estate, which deprived the plaintiff of any beneficial utie of the i>ortion of the estate so used by it, it was held that the whole damage might be recovered at once [Troy v. R. R. Co., ante) ; but where the extent of a wrong may be apportioned from time to time, and does not go to the entire de- struction of the estate, or its beneficial use, separate actions not onlv may but must be brought to recover the damage sustained : Flumer v. Harpir, 3 N, H. 88 ; Cheshire Turnpike Co. v. Stevens, ante. Where, in an action for a nuisance, it appears that, for a part of the period covered by the declaration, anot'icr per- son was jointly in the occupancy of tho premises with the plauitiff, thii. does not prevent a recovery by him for damages during tho entire period {Branch v. Jhane, 17 Conn. 402) ; and where tho d images are continuous in their nature, tho party injured is entitled to recover for all damages done previous to tho bringing of the action (I'uckell v. Smith, 6 Strobh. (S. C.) 20) ; but, ordinarily, damages are only recoverable up to the time of the bringing of tho action : Shaw v. Etteridge, 3 Jones (N. C.) 300. It is not necessary to X)rove actual damage. If there is an invasion of a right, which might have an effect upon the right of the plaintiff, if not asserted, nominal damages will bo given where no actual damage is proved : I'aul v. Slason, 22 Vt. 231 ; Pastorius v. Fisher, 1 Rawle (Penn.) 127. The rule is, that in all cases where a right is invaded, even though the damage is so small as not to be susceptible of estimation — infinitesi- mal, as it is called — tho court will give nominal damages in recognition and support of tho right : Cory v. Silcox, Ind. 39. All damages that are the natural and necessary consequence of a nuisance may be recovered under a general allegation of damage ; but damages that, although the natural, are not a necessary, conse- quence, must bo specially alleged, or no recovery can be had therefor. The rule may, perhaps, be stated thus : General damages are such as are the necessary consequence of an act, but damages that arc the natural, although not tho neces- sary, consequence of an act, are special, and must be specially averred : Vander- slice V. Kcivton, 4 N. Y. 130; Griggs y. Fleckenstcin, 18 Minn. 92. Thus, in an action by a reversioner against one who shut off the access to a store owned by the plaintiff and leased to a tenant, by piling up lime, sand and other materials near the entrance thereto, so that the lime and sand were blown into the store and damaged the tenant's goods, and the access to the store being cut off so that his trade was destroyed, and he left the store, tho plaintiff having failed to al- lege, in his declaration, the loss of a tenant as a consequence of the nuisance, it was held that no recovery could be had: Furlong y. Polleys, 30 Me. 491. In an action for injuries to the free- hold by excavations made near thereto, whereby a subsidence of the plaintiff's lands is caused, the measure is not what SECrr. II.] RIOHTS OF PROPERTY IN LaND. 403 other inhabitants of a certain district, was entitled by custom to use for domestic purposes, abstracted the water to such a degree as to be it would coHt to replace the lot in itH former uondition, but the actual dimi- nution in itH value by reason of the de- fendant's ncta : McOuire v. Omul, 20 N. J. Eq. 350 ; Harney v. Sides, ^-c. Co., 1 Nov. 639. For injurioH to a pernon'M Iiouho and Ki'oundH by reason of water diverted from its course by another, the nieasiu-o of dumafj^es is the actual diminution in tho value of the prcmisos resulting from the wrongful diversion : C/inne v. ^V. Y. C. It. It. Co., 24 Barb. (N. Y.) 273. In tho case of on injury to a water-course sup- plying a mill with motive power, by reason of obstructions placed therein, tho owner of the mill may recover for all the damages sustained by him by reason of being deprived of water, not only by the obstruction, but also during its tem- porary necessary diversion for tho re- moval of tho obstruction: Dayton v. Pease, 4 Ohio (N. S.) 80. In an action to abate u nuisance, and for damages caused by digging a ditch ou the plain- tiff's lands, it was held that an order to abate the nuisance, and an award of damages sufticient to pay for filling the ditch, was erroneous, as tho plaintiff could not recover prospective damages, and the award should only have been for the actual injury sustained: l>e Con/a V. Massachusetts, S;e., Co., 17 Cal. 013. The reason for this is obvious ; the ditch was tho nuisance, and the abatement involved its filling by the defendant, and it was not proper for the court to punish the defendant by compelling him to fill the ditch, and pay the expense thereof to the plaintiff in addition. In an action to recover damages for a nuisance whiuh temporarily injures the realty, and foi a time prevents its use by tho plaintiff, it was held that the measure of damugos was tho actual cost of restoring the buildings to their former condition, and the damage sustained by reason of being deprived of their use during the continu- ance of the nuisance : Freeland v. Mim-- tine, 9 Iowa, 4G1. In an action by a reversioner for an injury done to his premises, tho true measure of damages is tho actual injury to the reversion : Butro v. Wilson, 4 Ohio St. 101. Thus, in an action by a reversioner for cutting off the eaves of a building belonging to him and erecting a wall with a drip over his premises, it was held that thfl actual injury up to the time of the bringping of the action was the true measure of damage, and that, as repeated actions might be brought, et'.dence of the diminution of the market value oi the estate could rot be given. In Ludlow V. Yonkers, 43 Barb. (N.Y.) 493, which was an action against h municipal corporation for tho construc- tion of a wall in such a negligent man- ner that it fell and injured tlie plaintiff's mill, it was held that the millowner was only entitled to recover the actual injury sustained by him, with interest from the time of tho injury, anil that, if rent was recoverable, it could only be re- covered for such a period as was reason- ably necessary to repair the premises. In Kane v. Johnston, 9 Bosw. (N.Y.) 154, tho court held that, where a person's tenement and business were injured by a nuisance, a loss of anticipated profits from an illegal business cannot bo re- covered. But in this case no question was made but that such a recovery might be had where the business was legal, and such as was not opposed to public morals and public policy. In an action for the destruction of a bridge, it wochcld that the measure of damages was tho value of the superstructure, and the loss of tolls during tho time reasonably necessary to rebuild the bridge. The rule seems to bo that, where the estate injured is actually devoted to a use that yields a profit to the owner, ho is not only entitled to recover for the actual injury to tho estate, but also such sum as compensates him for a loss of such profits during such period as is actually necessary to restore the property to its former condition. He cannot, however, sit down with folded arms and charge tho defendant with loss during the period of his own inactivity. If a wrong has been done him, he is nevertheless bound to proper diligence himself to repair it, and during the period reasonably neces- sary for that purpose tho law will give him full indemnity ; but beyond that the loss is his own. Neither can a person, who is not at the time when the injury is infli^,ted using his premises for any profitable purpose, recover damages for an injury which might have been sufi'ered had the property been aevoted to a use never contemplated by him. Damages are given as compensation for a loss actually suffered, and are intended to be measured by such a sum as the plaintiff ought to have, and tho defendant ought to give, in view of all the circumstances, for the injury inflicted. But, in the absence of bad motives, of wantonness or malice, no more than actual compensation Avill be gfiven : JFoosler v. Great Falls Manuf. Co., 41 Me. lo9. Thus, in an action of trespass for cutting growing trees, al- though the actual value of the trees at the time of cutting n'ay have been no more than for firewood, yet the recovery will not be restrictad to their value for < dd2 404 INJURIES TO RIGHTS OF PROPKRTY. [ciIAP. VIII. f : \l i',! k I ! render what remained insufficient for the inhabitants, it was held that the plaintiff might maintain an action, although ho had not that purpose, but a rooovonr may bo had for the actual injury to the liind by their cutting ; and, in determining thutques- tioD, all the ciroumHtanooH, att well an the purpose for which the trees were designed to Ih) used, may bo eonsiderod : Chipman v. HMiurd, Cal. 102. In an action for injuries arising from the unlawful raising of a dum below the plaintiff's cotton mill, on the same Btroara, the operation of which was greatly impeded by back water, where- y the plaintiff's profits were greatly diminished, ovidonco of the profits of the manufacture was hold admissible, as a basis upon which to estimate the damages, if not as an actual measure thereof : Simmoiia v. Jirowii, 6 R. I. 299. In all cases of this character the true measure of damages is the actual com- pensation which, in view of all the cir- cumstances, the plaintiff ought to have for the injury {laber v. Hit {son, 6 Ind. 322) ; but if there are several defendants, some of whom are more culpable than the rest, yet, if they are found to be jointly liable for the injury, the damages should not be graduated by the dilfercnco in culpability, but such damages should be given against all of them, as the most culpable ought to pay : Jiell v. Morrison, 27 Mass. 68. So, too, where damages result from two concurring causes, the party in fault is not exempted from full liability because ho did not occasion the whole of it {Itieker v. Freeman, 50 N. H. 420) ; if he contributed in any measure to the injury, he may be charged with the whole injury, as much as though it had been occasioned by his individual act. There is no division of a wrong or contribution between wrongdoers. In an action for an injury sustained by a livery stable keeper, by reason of the communication of the horse dis- temper to two of his horses by a horse brought by the defendant to his stable to be kept, the defendant knowing the diseased condition of his horse, the court held that the plaintiff was entitled to recover the profits ho would have de- rived from the services of his horses during the period of their illness ; and that while evidence of the profits he would probably have derived trom them was not admissible definitely to fix the damage, yet that it was admissible as one of the means by which the jury might arrive at the proper measure of compensation : Fultz v. Aycoff, 26 ind. 321 ; Haines v. Ashfield, 99 Mass. 640 ; Albert v. Blcecker St. ^c. B. it. Co., 2 Daly (N. Y. C. P.) 389. In GilUtt v. Western Railroad Co., 8 Allen (Mass.) 660, in an action for injuries to a horse by reason of a defect in a highway, the Slaintiff was held entitled to recover the iminution in tho value nf the horse at the oommoncemont uf tho action, and, in addition thoreto, such sums as ho had expended in its euro while under troat- laent, and aroasonublo coinponsatiou for tho loss of tho use of the horso during the periods of its disability. Thus it will bo soon that compensatioii for actual loss is the rule and measure of damnges where there are no aggravating circum- stances to increase them. In an action for a nuisanco, actual benefits to tho plaintiff's estate there- from cannot bo considered, cither in defence or in mitigation of damages : Vinnel v. Vinnel, 4 Jones (N. C.)M21. Thus, in Francis v. Schoellkoppf, f>',\ N. Y. 152, the defendant offered evidence to prove that the rental value of the plain- tiff's promises had boon largely increased by reason of the erection of his tannery, which had called large numbers of people to that locality ; but the court held that this evidence was not admissible, and could have no bearing upon the case in any possible view. A lessee of lands may maintain an action for injuries to tho possession by a nuisance, and may recover therefor such damages as he can show to his possessory right. Thus, in an action by the lessee of a livery stable against a person who laid gas pipes in the streets so imperfectly that the gas escaped therefrom through the ground and iuto tho water of the well used by him in connection with the stable, rendering the water unfit for use, it was held that ho might recover not only for the incon- venience to which he was thereby sub- jected, but also for expenses reasonably and properly incurred by him in attempts to exclude the gas from tho well ; but that he could not recover for injuries to his horses from drinking the water after he knew that it was so corrupted by tho gas as to be unfit for that purpose : Sherman v. Fall Eiver, ifC. Co., 2 Allen (Mass.) 624. So, too, a tenant at will of lands may recover for an injury to his possessory estate : Foley v. Wyeth, 2 id. 131. It is held that inert water lying upon the surface of an estate, as well as the water with which the estate is charged, BO long as it remains inert, is the pro- perty of him who owns the soil ; yet, as water percolates by natural causes, and in obedience to natural laws, if an ad- joining owner sees fit to excavate upon Lis own land he may do so, although tho result be that the water in his neigh- bour's soil is completely exhausted : Frazier v. Brown, 12 Ohio St. 294. His wells or his springs may thereby bo r SECT. II.] KIGIITS OF I'KOPERTY IN LAND. 406 liimsolf flufferod any personal inconvenience (q). So, too, an action may bo maintained by a commoner for an injury dono to his common, without proving actual damage ; and, whenever there has been an obstruction to the exercise of a right of way, which, if acquiesced in for twenty years, would be evidence against the existence of the right, there is an injury in respect of which damages are recoverable, although there is no proof of actual pecuniary damage (r). But, when the act of which the plaintiff complains has been done by the defendant on his own land, and the constant repeti- dcHtroycd, but no action lies for tlio in- jury: Gooilale v. Tiittli; 'I'd N. Y. -lOO ; Mosicr V. Caldwell, 7 Nev. 303. So, too, ono ptTHon may erect a solid wiill iiround liiH entatv' and prevent the water therein from percolatiu); through hiHUoighbour'H Hoil, aH it otherwise would do, altliough thereby a neighbour'8 well is made dry and liw Hupply of water in completely cut off, and it seems that the motive with which the act \» dono has no effect upon the question of liability : Chatjicld V. mhoii, 28 Vt. 49 ; Jfaruootl v. Btn- tuii, 32 id. 724 ; Frazier v. Jlrouii, iinte. But this is only applicable to perco- lating or inert water; as to running streams, or watercourses upon the sur- face, the rule is different, and liability attaches for the sensible diversion of such water by trenches, wells or other means, even though the diversion results from percolation: Delhi \. Youmans, 45 N. Y. 3G3 ; Dirhinson v. Canal Co., 7 Ex. 282 ; rixley v. Clark, 32 Barb. (N. Y.) 2G8. There are a multitude of uses to which one may devote his own property that operates injuriously to another for which no damages are recoverable. Indeed, it may bo said, that a man is never liable for the results of the proper exercise of a lawful act ; all the injuries resulting therefrom are damnum absque injuria. They are not the subject of damage, for Ihe reason that no right has been vio- lated by their exercise ; and, therefore, in the eye of the law, the person injured should neither have, nor the defendant pa, ly compensation therefor. Thus, wht J, person excavating his own lands injured a cistern under the street, it was held that no liability existed against him : Dubuque v. Maloncc, 9 Iowa, 460. So, too, -where ono in excavating upon his own land causes the walls of a build- ing erected upon an adjoining lot to crack, and the building itself to fall into his pit, ho being in the exercise of due care, no damages are recoverable there- for : McGuire v. Grant, 1 Dutch (N. J.) 356 ; Thurston v. Hancock, 12 Mass. 220 ; FoUy \. Wyeth, 2 Allen (Mass.) 131, So, too, if a person owning lands ad- joining the premises of another, upon which has been erected a palatial rcsi* dcnco, erects upon his lands a cheap, unsightly building, which seriously annoys his neighbour, and impairs the value of his property, vet, so long as the building is not devoted to uses that make it a nuisance, no action lies tliereft'r : JIarnca \. Jlathorn, 54 Me. 224. Tho reason is, that every person may do what ho will with his own, so long as he does not trench upon the positive rights of another. His acts may be unneighbourly ; they may bo prompted by the most malicious motives, and for malicious purposes, yet, so long as ho keeps within the scope of his legal rights, no action, cither at lavr or in equity, will lie against him therefor: Ross v. llutler, 19 N. J. Eq. 294. The test of nuisance is not injury and damage simply, but injury and damage resulting from tho violation of a legal right of another. If there is no right violated there is no nuisance, however much of injury and damage may ensue: Mahan v. Jlrou-n, 13 Wend. (N. Y.) ; Chatfeld v. Wilson, 28 Vt. 49 ; Frazier v. liruwn, 12 Ohio St. 294 ; Smith v. liowen, 2 Dis. (Ohio) 163 ; but if a right is violated there is an actionable nui- sance, even though no actual damage results therefrom : Fisher v. Clark, 4 1 Barb. (N. Y.) 327 ; I'ickard v. Colltns, 23 id. 444. While in the one case there is actual injury and damage, yet there is no legal injury, hence no right of action : Quinv. ilore, 15 N. Y. 432; Kinsel v. Kinsel, 4 Jones (N. C.) 149; while in the other, while there is no actual da- mage, yet there is legal injury, and consequently a right of action, the law imputing damage to sustain the right : Fickardv. Collins, 23 Barb. (N. Y.) 444 ; Thurston v. Hancock, 12 Mass. 220. Therefore, in all cases of nuisance, be- fore the bringing of an action, it should first be ascertained -whether a legal right has been violated ; if so, a nuisance exists ; if not, no nuisance exists ; and, however great the damage, it is damnum absque injurid. (q) Harrop v. Hirst, L. R., 4 Ex. 43 ; 38 li. J., Ex. 1. (r) Sower v. Hill, 1 Bing. N. C. 649 ; 1 Sc, 633. Ante, p. 39. I I r 33 < ■I 406 INJURU:« TO RIOHTB OF PROrERTY. [CHAP. VIII. Li:-) ;-2) ; the maintenance of livery stables near (l»vellings, impairing their comfort by noxious stenches, noit M C < ^'•Si 414 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. him to substantial damages (/). The court will not interfere to protect a dry, strict, legal title, merely because the legal right has been infringed. It must be shown that some actual damage has been done or threatened, in order to lay a ground for relief (A). The courts will, by injunction, prevent the continuance of a nuisance on one man's land to the injury or annoyance of another (/). An injunction will bo granted, in certain cases, to prevent the fouling of a stream by pouring into it the contents of sewers, and the refuse of dye-houses and manufactories (in) ; or to prevent a nuisance caused by the fouling of a canal by taking water from a stream polluted by sewage, although the pollution of the stream was not caused by the proprietors of the canal («) ; also to prevent the burning of bricks (o), the erection of coke-ovens (p) and densely- ii ■/ t question of right, invasion and damage: Galea v. McLaniel, 2 Stew. (Ala.) 211 ; Livingston v. Van Itigen, 9 Johns. (N. Y.) 607. So, too, courts of equity will always exercise jurisdiction in cases of natural franchise, or special franchise acquired by long user. Thus, the owner of lands upon a navigable stream, whose title extends to low-water mark, is regarded as possessed of a natural franchise, a special privilege over that portion of tho stream covered by his title, subject only to the easement of navigation. By virtue of this privilege, he may erect wharves for his own use, or for his own profit, taking care not to materially ob- struct navigation ; and in the exercise of this right he will be protected against the unlawful interference of others by injunction : Bel. ^- Hud. Canal Co. v. Lawrence, 16 Hun. 1.54. So, too, a per- son, by long exercise of tho exclusive right of fishery in a public river, may acquire a right to fish there of which he cannot be deprived, and in the exercise of which he will be protected. So, too, on public streoms, where the owner of the banks owns also thebedof the stream, unless otherwise provided by special law, hehastheexclusiverightof fishing in that portion of the river, and this is a right which a court of equity will protect: Chapmanv. OshkoshR.R. Co., 33Wi8.C39. Generally, when the answer denies tho nuisance, and all the equities of the plaintiff's bill, the court will dissolve the preliminary injunction : Finnegan v. Lee, 18 How. Pr. (N. Y.) 186 ; Gottldv. Jacob- son, id. 158 ; Manhattan Gas Light Co. V. Barker, 7 Eobt. (N. Y.) 156 ; Middle- totcn V. Roundbout R. R. Co., 43 How. Pr. (N. Y.) 481 ; Rhea v. Forsyth, 37 Fcnn. St. 503 ; Rayle v. Indianapolis R. R. Co., 32 Ind. 269 ; Conolly v. Conger, 40 Ga. 229 ; Le Godey, 39 id. 167 ; Wim- low v. Hudson, 21 N. J. 172 ; Youngs v. Shcpard, 44 Ala. 315; Miller v. McDougall, 44 Miss. 682; Xew\. Wright, id. 202 ; ISroun v. Haskins, 45 id. 183 ; Edwards v. lianksmith, 35 Ga. 213; Johnson v. Allen, id. 252 ; Murrai/ v. ElatoH, 23 N. J. 27 ; Peterson v. I'afrott, 4 W. Va. 44 ; but this is not neccs-sarily the case, as if the court is satisfied that a nuisance is being, or is likely to be, committed, which will produce iiTC- parable injury to the plaintiff if allowed to go on, and which is likely to be con- summated before a hearing upon the merits can be had (Cokcr v. liirge, 9 Ga. 425), or if the act compIainEtl of will operate a total or even partial destruc- tion of the plaintiff's right {R. R. Co. v. R. R. Co., 49 Me. 392 ; Smith v. Fit::- gernld, 24 Ind.. 316 ; Van Jkrgen v. Van Bergen, 3 Johns. Ch. (N. Y.; 282), or if the act, if in fact a nuisance, will, if allowed to go on, involve the defendant in serious pecimiary loss, the court will retain the injunction until final hearing for the protection of the right. (») Elmhirst v. Spencer, 2 Mac. & G. 51. Bent v. Auction Mart Co., L. R., 2 Eq. 238 ; 35 L. J., Ch. 555. [k) Wandsicorth Board of Works v. London and South Western Rail. Co., 31 L. J., Ch. 855. See Lingwood v. Stow- market Paper Co., L. R., 1 Eq. 77. (/) Oldacre v. Hunt, 19 Beav. 489. Inchbald v. Robinson, and Inchbald v. Barrington, L. R., 4 Ch. 388. (»i) Wood V. Sutcliffe, 2 Sim., N. S, 163. Att.-Gen. v. Borough of Birming- ham, 4 K. & J. 528. (n) Att.-Gen. v. Bradford Canal, L. R., 2 Eq. 71. And sec Att.-Gen. v. Rich- mond, ib. 306 ; 35 L. J., Ch. 597. (o) Walter v. Selfe, 4 De G. & S. 321 ; 20 t. J., Ch. 433. (p) simple V. London and Birmingham Rail. Co., 1 Rail. Ca. 120. i SECT. II.] RIGHTS OF PROPERTY IN LAND. 415 ■ J smoking chimneys (q), and the carrying on of gas-making or any noisome trade, so as seriously and materially to interfere with the ordinary comfort and enjoyment of a neighbouring dwelling-house; or to injure the trees or vegetation of the neighbouring fields (r) ; to prevent the use of such heavy steam-rollers on a road as to crush or damage gas-pipes lawfully laid under the road, there being no statutable authority for the use of such rollers («). But the coxirt will not interfere in any case, unless some serious inconvenience has been sustained, or some actual damage done or threatened (f). For, it must be sho^vn either that there is imminent danger of a substantial kind, or that the injury that is apprehended would be irreparable (ti). Nor will the court interfere where the injury, in itself trifling, will shortly be abated by the operation of an Act of Parliament (x). If the injury is accidental, or temporary and occasional only, and not likely to become more frequent, or to be 393 exceptional in amount, such as arises from the storage of inflam- mable materials, the person complaining will be left to his action for damages (i/). It is no answer that the removal of the nuisance is a task of great difiiculty, though that may be ground for sus- pending the injunction for a period (s). The injunction will be enforced by sequestration, if necessary (a). Remedy by injunction — Injunction against local boards to prevent nuisances. — A local board, under the Public Health Act, 1875, causing a nuisance by any act which, apart from the statute, would have given a cause of action to any person, may be restrained by injunction, unless they can justify under the statute, but if they do not act but merely neglect to perform their duty of providing proper drainage, the only remedy is mandamus (b) ; nor can the local board be compelled by injunction to restrain third parties from committing a nuisance. But where a third party had entered into an agreement with a local board by which he was allowed to use certain pipes for the purpose of passing surface water, and he allowed sewage to pass through, it was held that an (q) Sampson v. Smith, 8 Sim. 272. (r) Imperial Gas, ^c. Co. v. Broadbent, 7 H. L. C. 600. Haines v. Taylor, 10 Beav. 75. Crump v. Lambert, L. E., 3 Eq. 409. («) Gas Light and Coke Co. v. Ventry of St. Mary Abbotts, Kensington, 15 Q. B. D. 1; 64 L. J., Q. B. 414. (0 Wandsworth Board of Works v. Lon- dott and South Western Mail. Co., supra. As to prospective damage, see Goldsmid V. Tunbridge Wells Commissioners, L. R., 1 Ch. 349 ; 35 L. J., Ch. 382. (m) FUteher v. Bealey, 28 Ch. D. 688 ; 64 L. J.. Ch. 424. [x) Att.-Gen. v. Gee, L. R., 10 Eq. 131. {y) Cooke v. Forbes, L. R., 5 Eq. 166. Stcaiiie v. Great Northern Rail. Co., 4 De G., J. & S. 211. {z) Att.-Gen. V. Colney Hatch Asylum, L. R., 4 Ch. 146 ; 38 L. J., Ch. 265. (n) Spokes v. Banbury Board of Health, L. R., 1 Eq. 42; 35 L. J., Ch. 105. (A) Glossop V. Heston and Isleivorth Local Board, 12 Ch. D. 102 ; 49 L. J., Ch. 89. Att.-Gen. v. Dorking Guardians, 20 Ch. D. 595 ; 51 L. J., Ch. 585. See also Att.-Gen. y. Acton Local Board, 22 Ch. D. 221 ; 52 L. J., Ch. 108. 2 < W c <■ 416 INJURIES TO RIQHTS OF PROPERTY. [CHAP. VIII. ■ I I injunction would lie against the local board, since they could stop the pipes if they wished (c) . Remedy by injunction to prevent nuisances — Acquiescence precluding relief. — In some cases it lias been held to be the duty of a person seeing a nuisance in progress, and having the power of abating it and stopping it, to give notice to the person erecting the nuisance of his intention to object ; and it is clear that a person may so encourage that which he afterwards complains of as a nuisance, as to preclude him from any claim to an injunction {d). If a person sees a building in progress of erection which, when completed, must necessarily darken his windows, and nevertheless allows the building to be completed, and finished and decorated at great expense, without making any protest or complaint, or taking any proceedings against the wrong-doer, the court will not interfere by injunction to compel the pulling down of the building, but will leave the complainant to his remedy in damages {e). But acquiescence in the erection of injurious buildings, or of noxious works, while they produce little injury, will not deprive the person so acquiescing of his right to an 394 injunction if the nuisance is increased and becomes productive of more serious damage ; otherwise it would follow that a partial obscuration of ancient lights might be followed by their total destruction, and that an easement assented to might be increased at the pleasure of the grantee, provided it could be shown that the increase was only a probable and natural consequence of the use of the easement. Nor can a prescriptive right be claimed, it seems, in such a case — at all events, unless there has been a continuance of sensible damage for the requisite period (/). If a person has acquiesced in the erection of chemical or smelting works, in ignorance of the nuisance that will arise from them when they are put into operation, the acquiescence in the erection is no acquiescence in the nuisance arising from them, and will not pre- (c) Charles v. Finchky Local Board, 23 Ch. D. 767; 52 L. J., Ch. 554. See post. Abatement of Nxtisances, p. S97. (rf) WUUamH V. Earl of Jersey, 1 Cr. & Ph. 97. See Wood on Nuisances, pp. 374—385, 677 ; also Radenhurst v. Coates, 6 Grant's Ch. (Ont.) 146. If a person labouring under a misapprehension as to the effect of an act, has consented there- to, he may at once, upon discovery of the actual effects, revoke the licence, and thereafter the person to -whom the licence was given will be liable for the damages resulting therefrom : Brown v. Sowen, 30 N. Y. 519; Druse v. Wheeler, 22 Mich. 439 ; Ltmpsey v. Kipp, 62 Barb. (N. Y.) 311 ; Freetnan v. Uadley, 33 N. J. L. 523 ; Smilh v. Scott, 1 Kerr (N. B.) 1 ; Allen v. Fis/:e, 42 Vt. 462 ; Fstca V. China, 66 Me. 407 ; Dodye v. McClintock, 47 N. H. 383 ; Rhodes v. Otis, 33 Ala. 678 ; Giles v. Simonds, 15 Gray (Mass.) 441 ; Hamilton v. Windolf. 3 Md. 301 ; Mayo v. Tappan, 23 Cal. 306. But as to all that has been done under the licence before revocation, the licence is a full defence, unless it has been ex- ceeded. And in some instances a court of equity will rc-i.iin a revocation, and decree a specific performance : Cook v. Priyden, 45 Ga. 331 ; R. R. Co. v. MeZan- ahan, 69 Penn. St. 23. (e) Cooper v. Hubbtick, 30 Beav. 160 ; 31 L. J., Ch. 123. Cotchiny v. Basset, 32 Beav. 101 ; 32 L. J., Ch. 286. (/) Goldsmidv. Tunbridge Wells, L.R., 1 Eq. 161: 1 Ch. 349; 35 L. J.,. Ch. 3S2. Crossley v. Lightoirler, infra. ^ SECT. II.] KiailTS OF rHOI'KRTY IN LAND. 417 elude him from tlio remedy Ly injunction (y) ; and if tho person injured has refrained from taking any active stops to abate or i)ut an end to a nuisance, in cormequence of assurances ho lias received from the person creating tho nuisance that measures would be taken to put a stop to it, there is no Mrhcs on his part, and no such acquiescence as will deprive him of his riglit to an injunction (h). Nor will the fact tb'\t tho i)laintiff lias purchased tho land with ftiU knowledge of tho nuisance disentitle him to relief (/). Nor tho fact that the plaintiff is much more injured by many other people, provided a definite injury can be traced to the do fond ant (Z-). Remedi/ hif iii/iniction — Ofisfnicfions to the free mrcss of fly /if to miidoirs. — If a building has been commenced whicli, when carried up and finished, will cause a serious ( /) obstruction to the passage of light and air to anoient windows, the owner of the windows may obtain an injunction to restrain the erection of the building (/«) ; and there is no distinction in this respect between houses in a town and in the country («). But the court will not, upon an rx parte application for an injunction, order a building which is in course of erection to be pulled down, as that miglit do irreparable injury to the person erecting it, if on the final hearing of the matter it should be found that the right was with him. The proper order will be for the building not to be further proceeded with, until the rights of the parties have been decided (o). 395 " Whenever it is shoA\'n that the comfort or enjoyment of a man or his family in the occupation of his house is seriously inter- fered with (yj), and, still more, where he is prevented from carrying on his business with the same degree of convenience and advantage as theretofore, so that substantial damages would be recovered, there is sufficient groimd for the interference of the court " {<]) ; and there is no rule which prevents the court from interfering on the ground that the injury sought to be restrained has been completed before the commencement of the action {r). It depends, however, upon all the circumstances of the case whether the court will grant a 2 2 < a MM H r > c {ff) Banliarl v. HoiKjhton, 27 Beav. 431 ; 28 L. J., Ch. 473. (A) Alt. -Gen. v. Jlinniiiff/iain, 4 Kny & J. 54ro the plaint i IF liad set up poles on his own land, in order to build a house which, when erected, woidd bo a nuisanco to the adjoining dwcUing-houso of the defendant, and the latter entered upon the plaintill's land and prostrated the poles, to pre- vent the nuisanco, it was hold that tho entry was wludly unjusti- fiable {('). Hut, if A builds a house so near inino that it stops my lights, or shoots iho water upon my house, or is in any other way a nuisanco to mo, I may, after previous notice and request to remove the building, enter upon the owner's soil and pull it down, provided the whole house is a nuisanco. If part only of the house obstructs my lights and creates a niiisance, I am not justified in pxdling down the whole building (./). Before an entry is made upon tho land of another for tho purpose of abating a nuisance, notice should be given to the occupier of tho land of tho existence of tho nuisance, and he should be required to abate it himself {;/) ; and, if he neglects or refuses to do it, the party injured may enter upon the laud and abate it himself, using no more violence than is necessary for the purpose (//). A distinction has been taken between nuisances of commission and nuisances of omission ; and it is said that, if the plaintiff was the original wrong-doer, and himself created the nuisance, it may be abated without notice ; but, if the nuisanco was created by another, and tho plaintiff succeeded to tho possession of the locus in quo afterwards, then notice to remove it must bo given in order to make out a justification (/). " There is no decided ease," observes Best, J., " which sanctions tho abatt^nent by an individual of nui- 397 sances of omission, except that of cutting the branches of trees which overhang a public road, or the private property of the person who cuts them. The security of lives and property may, however, sometimes require so speedy a remedy, as not to allow time to call on the person on whose property the mischief has arisen to remedy it ; and, in such cases, an individual would be justified in abating a nuisance from an omission without notice. In all other cases of such nuisances, persons should not take the law into their own hands, but follow the advice of Lord Hale, and appeal to a court of justice " (k). J? 2 < H /J > c («) Norris v. Baker, 1 Roll. Rep. 393, pi. 15. See Wood on Nuisances, pp. 970 —980. (/) Jl. V. Roseicell, 2 Salk. 459. (g) Perry v. Fitzhoue, 8 Q. B. 776. Jones V. Jones, 1 H. & G. 1 ; 31 L. J., Ex. 506. (/() Davies v. Williams, 16 Q. B. 556 ; qualifying Perrij v. Fitzhoxve, 8 Q. B. 757. (i) Joiifs V. Williams, 11 M. & W. 176. l\iiyitiidotk^t ease, 5 Co. 205. Winsmore V. Grtinhaiih; Willes, 683 (/.) Loindule v. Nelson, 2 B. & C. 311. E E 2 ■i' ; -« r II m •i 430 INJTTTITFS TO niOTTTS OP PROPKnTV. [CTIAP. VITT. A notico to abate or romovo a uuisaiico, dolivorod at the pro- misoB to which it relates, to tho occupier for the time being, will bind a subseciuont occupier (/). JtfiiH'dij — Ahntcmont of niiimnccH upon comiiionn. — Where an (uioroachmoiit liiid been made on a common, ar.d a house built which obstructed tho exercise of tho right of common, it was held that tho ooramoncr might, after notice and request to tho wrong-doer to romovo the house, pull it down, though tho latter wos at the time actually present in tho houso with his family (itt). Tho commoner has a right to pull down and remove a hedf ~ a gate, or a wall, whic-h obstructs or abridges the exorcise % right {n) ; but he cannot destroy beasts of warren, such as .^o or rabbits, although they have increased to such an extent as to destroy all the herbage (o). Where fences are wrongfully oroctod upon land subject to a right of common, tho commoner in exer- cif'Tig his right is not restricted to pulling down so much of tho fence as it may bo necessary for him to remove in order to enter upon the common, but may remove the whole of tho fences, 80 as to restore to himself tho full and unrestricted exercise of liis right 0>). Itemcdi/ — Abatement of nuimuccs armnfj from the exercise in excess of limited rig/its. — Where a person who is entitled to a limited right exercises it in excess, so as to produce a nuisance, and the nuisance cannot be abated without obstructing the enjoyment of the right altogether, the exercise of the right may be entirely stopped, until means have been taken to reduce it within its proper limits. " Thus, if a man," observes Alderson, B., " has a right to send clean water through my drain, and chooses to send dirty water, every particle of the water may be stopped, because it is dirty " (q). 398 If a riparian proprietor having a prescriptive right to obstnict the flow of a stream with a dam or weir of a certain height, for the purpose of watering his meadows, exceeds his right by enlarging his dam or weir, to the prejudice of another riparian proprietor, the latter may, after notice, remove the enlarged portion of the struc- ture, but cannot lawfully remove the whole dam. Thus, where the plaintiff, being possessed of land, the occupiers whereof from time immemorial enjoyed the right of penning back the water of a stream, by means of a dam or weir made with a loose board kept in its place with large stones, fastened the board down with stakes (/) Salmon v. Bentley, B. & M. 189. (m) Lavies v. JFilliams, 16 Q. B. 546. But nee Jonea v. Jones, 1 H. & C. 1 ; 31 L. J., Ex. 606 : ante, p. 381. (ft) Mason v. Casai; 2 Mod. 66. (o) Cooper v. Marshall, 1 Burr. 226 ; 1 Roll. Abr. 406. (p) Arlett V. Ellis, 7 B. & C. 346. Iq) Cawktcell v. Russell, 26 L. J., Ex. 34, cited with approval by Pearson, J., in Charles v. Fi)ichley Loeal Board, 23 Ch. D. 767, 775 ; 52 L. J., Ch. 554. SIXT. II.] HIOilTS OF J'Uon:UTY IN LAND. -m driven into tho bod of tho stroani, nnd tli« dcfondant, who had rightH on tho siuno Hfrcimi, Ihinkiiij^ the* Htiik(is unauthorizod by tho l)huntifT'8 an(uont right, imlled up both tho utiikos and tho board, it ■was hoM that tliis was an nnjustifiablo trespasH ; for, assuming ho had a right to removo tho stakos, ho had no right to roniove the board also (r). The removal of obstructions in watercourses on the land of a third person, by those who havo a right to tho watorcourso, and con- versely tho stopitago, on another's land, of a watorcourso which would otherwise flow wrongf Ay on to Iho laud of the person who stops it, must bo ofTocted with tlio least powsiblo damage to the owner of the servient tenement, whotlier the method adoi)tod (if there aro alternative methods of effecting the object) is more onerous to tho wrong-dner or not (v). Itemed !/ — DinfrcHH damage feasant. — Every occupier of land has a riglit to geizo animals and chattels trespassing upon and doing damage to his land, and to detain them \intil he is tendered or paid a fair compensation for tho injury. Tho distress must be taken at the time tho damage is done ; for, if tho damage was done yester- day, and the distress taken to-day, that would be illegal {t). If, therefore, a man coming to distrain beasts damage feasant sees the beasts on his ground, and the owner of the beasts, or his servant, chases them out before the distress is taken, though it is done pur- posely to prevent the distress, yet the owner of the soil cannot distrain them ; and, if lie does, the owner of tho cattle may rescue them ; for the beasts must be damage feasant at the time of the distress. A man may, therefore, distrain cattle damage feasant in the night ; for otherwise, perhaps, the cattle will be gone before he can take them. If a man takes my cattle and puts them into the land of another man, tho tenant of the land may take these cattle damage feasant, though I, who am the owner, was not privy 399 to the cattle's being damage feasant ; and he may keep them against me until he has obtained satisfaction of the damages. A commoner may justify tho taking of the cattle of a stranger upon the land damage feasant ; and if a man has a right of common for ten cattle, and he puts in more, the surplusage above the ten may bo distrained damage feasant. "Where there is a colour of right to put beasts upon a common, one commoner cannot distrain the cattle of another, because it would be judging for himself in a question that depends upon a more competent inquiry. If there is no colour of right, he may ; and, therefore, he may distrain the a c: n •'4 rr a M MM :1 »•) Grmislader. irallidai/, 6Bmg. 379. '») lioberU v. Jtose, L. R., 1 Ex. 82 ; 33 L. J., Ex. 1 ; 35 ib. 62. (t) Warmer v. Biggn, 2 C. & K. 31. Lindon v. Hooper, Cowp. 416. it); lit! 422 INJURIES TO KIGHT8 OF PlJOrEUTY. [ciIAP. VIII. beasts of a stranger. In the case of lovancy and couchanoy, one commoner cannot distrain another's cattle for a surcharge, but must try by a jury the number accommodated to the land; and, where any admeasurement lies between commoners to ascertain what quantity of land the commoner has, one cannot distrain the cattle of the other (w). Nor can the cattle of the commoner be distrained, where there is common jmr came de viciiHuje (jc). But this general rule may bo superseded, and a right to distrain given, by an agreement between commoners to restrain the exercise of their privilege to ccrtoin specified portions of the common field (//). If many cat*^^le are doing damage, a man cannot take one of them as a distress for the whole damage ; but he may distrain one of them for its own damage, and bring an action of trespass for the damage done by the rest (z). If cattle get out of the close before the party coming to distrain has got into it, they cannot be followed and distrained when off the land {a). The lord may distrain in respect of injuries done to his soil, and to his hedges, fences, and trees, although he has no interest in the herbage {h). licmcdt/ by distress — Bight to distrain animals trespassiiiff and doing damage on unfenccil lands adjoining public highways. — If the owner of lands adjoining a highway is bound by statute or pre- scription to fence against the highway, and he neglects to do so, and cattle, whilst passing along the highway under the care of the owner or his servants, stray therefrom into the adjoining land, and do damage there, the owner of such adjoining land, who has brought the mischief on himself by neglecting to fence, has no right to dis- tre' 1 the cattle, unless they are abandoned and left there by the owner or his servants an unreasonable time. So, if a man who has land adjoining a highway plants tempting green crops close beside 400 the highway, and neglects to fence them off therefrom, so that cattle being driven along the public thoroughfare are irre- sistibly invited to trespass on the adjoining land through the ope- ration of the tempting food upon their natural instincts, the owner of such adjoining land who has so neglected to fence has no right to distrain the trespassing animals, unless the drovers who have charge of them fail in their duty in endeavouring to prevent them from trespassing and from continuing on the adjoining land (c). Whilst cattle are lawfully passing along a highway, the owners {«) Hall V. Harding, 1 W. Bl. 674 ; 4 Burr. 2426. [x) Cape V. Scott, L. R., 9 Q. B. 269 ; 43 L. J., Q. B. 65. (y) Whiteman v. King, 2 H. Bl. 4. {z) Gilbert on Distress, 4th ed. p. 22 ; Co. Litt. 161 a. Bao. Abr, Distbess, F. (n) Clement \. Mihm;Z'Es]^.^b. War- mer V. Biggs, 2 C. & K. 33. (i) Hoskins v. Hobins, 2 Wins. Saund. 327 a. ((•) Goodwgn v. Chevclei/, 4 H. & N. 631 ; 28 L. J., Ex. 298. See ante, p. 380. 6KCr. II.] . RIGHTS OP PllOPEirn- IN LAND. 423 of the cattle ai-e using the highway according to the dedication of the owner of the soil, and, being there with his consent, they are occupying the highway ; but, if the cattle have strayed into the high road, and have passed therefrom into the adjoining close, they may be distrained there damage feasant, notwithstanding the owner of that close was bound to repair the fence between his close and the road, because the cattle were wrongfully on the road, and the owners were not occupying it so as to cast any obligation to repair the fence upon the distrainor, who is not bound to fence against trespassers {il). If a landowner neglects to repair and maintain a fence which he is by law bound to repair, and by reason thereof his neighbour's cattle stray into his land, he has no right to distrain them damage feaxaid, as ho is himself the occasion of the injury ( z < {(I) Manchester, Sheffield, and Lincoln- shire Mail. Co. V. JFalli.1, 14 C. B. 213; 20 L. J., C. P. 85. ((■) Singleton v. iniliamson, 1 H. i*^ N. 410; 31 L. J., Ex. 17. (/■) Gilbert on Distress, 4th od. p. 21, (g) 9 Vin. Abr. 121, Distbebs, A., pi. 4. (A) Field v. Admnes, 12 Ad. & E. 649. (i) Bunch V. Kennington, 1 Q. B. 680. 424 INJURIES TO KIGHTS OF PROPERTY. [CITAP. VIII. '^y?. 5 upon a common, da mage feasant, a commoner may distrain them ; but ho cannot burn them. A greyhound may be distrained running after conies in a waiTen ; and so may a ferret brought into a warren. If a man brings gins and nets through my warren, I cannot take them out of his hand ; but, if men are rowing upon my water, and endeavouring witli their nets to catch fish in my several fishery, I may take their oars and nets, and detain them as damage feasant, to stop their further fishing (/.). If domestic pigeons come upon land sown with corn, and eat up the corn, the occupier of the land is justified in shooting them, as he has no other means of taking them damage feasant (f). All railway companies have a common law right to distrain engines and carriages encumbering their railway and obstructing the right of passage along the line ; and the provisions of the Rail- ways Clauses Consolidation Act, with respect to the introduction of engines upon the railway and the removal of improperly con- structed engines, do not control or qualify this right, but give a cumulative remedy (»«). Remedy by distress — Tender of amends. — If the owner of the land or his bailiff comes to distrain beasts damage feasant, and before the distress the owner of the beasts tenders sufficient amends, and the distrainor refuses it, the latter becomes a wrong- doer if he then distrains. Tender before the distress makes the distress tortious. Tender after the distress, and before the impound- ing, makes the detainer and not the taking wrongful («). Tender after the impounding is of no avail, as the distress taken is then in the custody of the law (o) . The hazard of the sufficiency of the tender rests upon the wrong-doer whose cattle have trespassed, and not upon the party who has sufPered by the trespass. If the latter, therefore, demands 402 an exorbitant sum for compensation, that will not dispense with the necessity of a tender of a proper compensation, and will not relieve the owner of the trespassing cattle from the obligation of estimating and tendering at his own risk the proper amount of damage (/>) ; for, being the original ^vrong-doe^ by suffering his cattle to trespass, he is bound to tender the sum which he main- tains to be sufficient, before he is in a position to complain of the exorbitant amount of compensation claimed. The 2 W. & M. c. 5, which enables landlords to sell things dis- {k) Bdo. Abr. Disteess, F. {l) Leu-ell V. Sanders, Cro. Jac. 490. Bayley, J., Hannam v. Mockctt, 2 B. & C. 939. (m) Ambergate, <5r. Rail. Co. v. Mid- land Rail. Co., 2 El. & Bl. 793. («) Gh/nn v. Thomas, 11 Exch. 870; 25 L. J." Ex. 128. (o) Singleton v. Williamson, 7 H. & N. 747 ; 31 L. J., Ex. 287. Thomas v. Harries, 1 M. & G. 695 ; 1 Sc. N. R. 524. (p) Gulliver v. Coiens, 1 C. B. 796. SECT. II.] RIGHTS OF PROPERTY IN LAND. 425 / trained for rent, does not extend to distresses damage feasant. Con- sequently they remain as they were at common law, more pledges ; and the sale of them will make the party distraining a trespasser ab initio, unless the sale was necessary to cover the expense of finding food and water for the animals distrained, and can be justified under the 17 & 18 Vict. c. GO. The distrainor must at his peiil find a proper pound. Generally, the manor pound would be the proper place ; but, if that is not in a fit state, ho must find another, lie cannot impound so as to injure or destroy the subject-matter of the distress {q). And where he impounds on private premises, and not in a common pound, a sub- sequent tender of sufficient compensation for the damage actually done is good ; and if the distrainor demands and obtains an exces- sive sum to release the animal, the sum so paid may bo recovered in an action for money had and received (/•). Remedif hij distress — Sale of iinjwinided animals. — By the 12 & 13 Vict. c. 92, s. 5, it is enacted, that every person (s) who shall impound or confine any animal in any pound or receptacle of tho like nature shall provide it with food and water ; and by the 17 & 18 Vict. c. GO, 8. 1, it is further enacted, that every person who has supplied such animal with food and water, shall be at liberty, after the expiration of seven clear d. ys from the time of impounding the same, to sell any such animal openly in the public larket, after having given three clear days' public printed notice thereof, and to apply the produce of the sale in discharge of the value of such food and nomishment and the expenses of the sale, rendering the over- plus to the owner of the animal. Where several beasts have been distrained and impounded damage feasant, the ' distrainor cannot justify the sale of each beast individually in discharge of the cost of 403 its food and the expenses. Parties availing themselves of the statute must show that it was necessary to sell the number they did sell, or that they sold one, and that it did not produce enough, and then that they sold more. *' The power is measured by the necessity of the case ; and, if the distrainor is obliged to keep the distress for an indefinite period, there is nothing to prevent him from selling from time to time to defray the expenses" (/). To enable a person to avail himself of the power to sell impounded animals given by this statute, it must be shown that the animals had been impounded by (fj) Wilder v. Spcer, 8 Ad. & E. 547. Bignell v. Clarke, 6 H. & N. 485 ; 29 L. J., Ex. 257. By the Roman law, he who took tho cattle of another person feeding in his ground, or doing any other damage, was responsible for any violence doing hurt to the cattle, or for driving them in any other manner than he would his own ; and, if he caused any damage to the cattle, ho was bound to make it good. Domat, liv. 2, tit. 8, s. 2, { 6. {)■) Green v. Duckett, 11 Q. B. D. 275; 52 L. J., Q. B. 435. («) This does not extend to the pound keeper. Bnrgan v. Davies, 2 Q. B. D. 118; 46 L. J., M. C. 122. «) LaytoH V. Siori/, 8 Q. B. 819 ; 15 L. J., Q. B. 244. Pi c: 2 < «, 426 INJURIES TO RIGHTS OF TROPERTY. [CUAP. VIII. 11 3 ■? II Borae person in the exercise or intended exercise of a right to dis- train. The word " confined " in the 12 & 13 Vict. o. 92, s. 6, does not apply to all takings and confinement of animals under all circumstances («). Itemcdy hij distress — Duties of poiuid-/>eej)ei:s. — It has hecn held that, if an officer charged with the performance of certain public duties does that which belongs to his office, and intermeddles no further, he shall not be liable for any precedent tortious act of which he could know nothing. A pound-keeper, therefore, who only does the duties of his office by impounding things brought to him, does not by detaining them in the pound render himself re- sponsible for the unlawfulness of the distress. The pound-keeper is bound to take and keep whatever is brought to him, at the peril of the person who brings it, without any judgment, discretion, examination, or warrant ; and, if the things have been wrongfully taken, the person bringing them to the pound, and not the pound- keeper, is responsible for the wrong. "It would be terrible," observes Lord Mansfield, "if a pound-keeper were liable to an action for refusing to take cattle in, and were also liable to another action for not letting them go " (.*')• Division of rights over land in respect of their quantity. — The highest interest in land known to the law is that of a tenant in fee simple in possession ; but this interest may be divided amongst two or more persons, of whom one may be entitled to the present use and enjoyment, for a longer or shorter period, while the other is entitled to the use and enjoyment of the land upon the determi- nation of the interest of the first ; of these, the first is said to have the possession of the land, and the other the reversion ; and this division of the right to land into Lhe right to the possession, and the right to the reversion, is one of great importance in th law of torts. The right to land, again, may belong to one person, or may be shared between two or more as joint tenants or tenants in common. 404 Division of rights — Possession. — A person may be entitled to the actual use and enjoyment of land for a period dependent upon the will of the reversioner (tenant at will), or for a term of years (termor or lessee), or for life (tenant for life). Whatever the duration of his interest, he may, as the actual occupier, maintain an action for wrongful acts interfering with the beneficial use and enjoyment of the property and diminishing the value of his pos- sessory interest ; but the amount of the damages he will be entitled to recover will depend upon the quantity of his interest. If the soil (tt) Machcll V. Ellis, 1 C. & K. 685. Mason v. Newland, 9 C. & P. 675. {x) Badkin v. Fowell, Cowp. 478. SECT. II.] EIGHTS OF PROPERTY IN LAND. 427 and freehold of the locits in quo are proved to be in the plaintiff, the possession is also presumed to be in him, unless there is some evidence to the contrary (i/) ; for possession follows the property •when there is no actual possession in another person (s). Actual or constructive possession, without proof of any title to the soil and freehold, is quite sufficient to support an action against a wrong-doer ; for he who commits a trespass upon the possession of another, being himself a wrong-doer, has no right to put the other party to proof of title («). A lessee of the vesture or herbage, or a purchaser of growing crops, who has a right to the use of the land for bringing the crops to maturity, and has, consequently, an interest in the soil, may maintain an action for a trespass upon his close or land against any person who wrong- fully comes upon the land, or interferes in any way with the growing crops (b) ; but a purchaser of crops arrived at maturity, who has bought them with a view to their immediate severance as chattels, and has no interest ;'n the soil, cannot maintain an action for a trespass upon the land, but must confine his cause of action to a claim for damages for an injury to goods and chattels (c). Very slight evidence of possession is sufficient to establish a priind facie title to sue for an injury to realty, such as the occupation of the soil with stones and rubbish, which have been placed thereon by order of the plaintiff, and kept there for some short time without molestation ; or the building of a wall, or a dam, mound, or fence, which goes on for some weeks without interruption, and is then knocked down (d) ; or the inclosm-e or cultivation of a piece ol waste ground, the mowing of the grass thereof, or the pasturing of a cow thereon; for mere occupancy 405 of land, however recent, gives a good title to the occupier, whereon he may recover as against all who cannot prove an older and better title in themselves (e). The digging of pits in a com- mon, and throwing out heaps of earth, are i)rimd facie proof of ownership of the heaps cast out, so as to support an action against a wrong-doer for carting away the heaps (/). To maintain the action, however, there must in all cases be proof, either of title, or of actual or constructive possession by the a C 2 m' 'J ir [y) Parke, B., Ilehbcrl v. Thomas, 1 C. M. & R. 864. [z) R. V. Mayor, ij1a.\xat. 621. (/•) J)>iison V. CoUick, b B. & Aid. 600 ; 1 D. & R. 225. (/) Harrison v. Parker, 6 East, 154. (w) HolUs V. Goldfinch, 1 B. & C. 218. Lee Conservancy Board v. Button, 12 Ch. D. 383. (w) Revetl v. Brown, 6 Bing. 7. SECT. II.] RIGHTS OF PROPERTY IN LAND. 429 the trespass was committed, the trespass is not a trespass against him ; and he cannot maintain an action in respect of it (o), unless it is a continuing trespass (p). Division of rig/its — Disseinin and rc-eiitri/. — If one disseises me, and during the disseisin he cuts down the trees or grass, or the corn growing upon the land, and afterwards I re-enter, I shall have an action of trespass against him for the trees, grass, corn, &c. ; for, after my regress, the law, as to the disseisor and his servants, supposes the freehold always continued in me((/). By his re-entry the disseisee is remitted to his first possession, as if he had never been out of possession (/•). A person, therefore, who has the freehold and a right to the possession of land may, by a peaceable entry upon the land, acquire sufficient possession of it to enable him to maintain an action for a trespass against any person who, being in possession at the time of his entry, wrong- fully continues upon the land(.s). It is not necessary that the person who makes the entry should declare that he enters to take possession. It is sufficient if he does any act to show his intention, and, having regained constructive possession by his peaceable entry upon '.he unlawful possession of the occupier, and being entitled to treat t le latter as a trespasser, all those who come upon the land without title, after such vesting of possession, are trespassers, and liable to be sued as such. If a landlord, having a right to the possefsion of land on the expiration of a lease, sends his agent to the Jand to demand possession, and the agect enters and makes the dciaand, this is a sufficient entry to clothe the landlord with the constructive possession, so as to enable him to sue in trespass all persons who subsequently come upon the land by the authority of the tenant (^). As soon as a person is entitled to possession, and enters in the assertion of that title, the law vests the actual 407 possession in him. If there are two persons in a field, each asserting that the field is his, and each doing some act in the asser- tion of the right of possession, the person who has the title is in actual possession, and the other person is a trespasser (u). Division of rights — Tenant and reversioner. — The actual occupier of real property is always entitled to maintain an action for un- justifiable trespasses thereon ; but the owner, who has parted with the possession in favour of a tenant or lessee, can only maintain an action if an injury is done to his reversionary estate. If a 3 < IT mm H (o) Pilgrim v. Soitthampton, ^-c. Mail. Co., 8 C. B. 25 ; 18 L. J., C. P. 332. [p) Holmes v. Wilson, 10 Ad. & E. 503. ((?) Liford's case, 11 Co. Rep. 51 a. ((•) Ilolcome v.llawUns, Moore, 461. is) Butcher v. Butcher, 7 B. & C. 402 ; 1 M. & R. 220. Litchfield v. Beady, 5 Exch. 939. (<) ITct/ V. Moorhouse, 6 Bing. N. C. 62 ; 8 So. 168. («) Jones V. Chapman, 2 Exch. 821. 4.30 INJURIES TO RIGHTS OF PROPERTY. [ciIAP. VIIT. i" i' . a ff .t : ' .1 i< „ _ I ,1 h i house or land is occupied merely by the servant of the owner, the occupation of the servant is the occupation of the owner (j*) ; and the latter, being then the occupier as well as the owner, may sue for any temporary trespass or injury, rendering his occupation loss profitable or commodious ; but, whore the land has been demised to a lessee, who has entered thereon, and is clothed with the ])0s- sessory interest, the lessee, and not the landlord, is the proper party to sue for a trespass upon the property, unless the wrongful act complained of imports a damage to the reversionary estate (//). Where the injury is of a permanent nature, and deteriorates the marketable value of the property, so that, if the landlord or re- versioner were to sell it, it would fetch less money in the market, there is a damage to the reversionary estate, in respect of which the reversioner may maintain an action (z). Thus, if A is seised in fee of the reversion of a close, expectant upon a term for years, and B is possessed of another close adjoining thereto, tlirough which close there runs a rivulet, and li stops it, per quod the close of A is surrounded, so that the timber-trees, &c., become rotten. A, in respect of the prejudice to the reversion, and the termor, in respect of the injury to the possession, and the loss of the shade, shelter, &c., of the trees, may each have an action ; and satisfaction given to one is no bar to the other {a). So, where the subject of com- plaint was, that the defendant had fixed a spout to the eaves of his house, which poured rain-water into the plaintiff's yard and made it damp, it was held that this was an injury of a permanent nature, which entitled the plaintiff to damages, although the yard was in the occupation of a tenant (i). " The removal of the smallest portion of soil must, in general, be esteemed an injury to the reversion, because it tends to alter the evidence of title" (r). But a presumed intention to continue the injury is not suificient, 408 even where there is evidence that the premises will seV for less if the injury is continued ((/). Where a public street was improperly used as a stable-yard, it was held that the nuisance to the neighbouring houses was not so permanent as to entitle the reversioner to sue (c). Nor can a reversioner sue for a nuisance caused by the noise of machinery in adjacent premises (/), or by the erection of a furnace and smoky (x) Ante, p. 263. (v) Dobson V. Blackmore, 9 Q. B. 991. (z) Jackson v. Fesked, 1 M. & S. 234. Jesser v. Gifford, 4 Burr. 2141 ; 3 Leon. 209. As to injuries from the removal of fixtures, see Hare v. Horton, 6 B. & Ad. 727 ; 2 N. & M. 428. (a) BedingjUU v. Onshw, 3 Lev. 209. (*) TttcAerv. Kcwman, 11 Ad. & E. 41. {c) Alston V. ScaUs, 4 Bing. 4 ; 9 i«. 3 ; 2 M. & Sc. 6. (rf) Mtimford v. Oxford, Worcester ^• Wolverhampton Rail. Co., 1 H. & N. 34 ; 25 L. J., Ex. 265. Simpson v. Sarage, 1 C. B., N. 8. 347 ; 26 L. J., C. P. 50. (e) Mott\. Shoolbred, L. R., 20 Eq. 22 ; 44 L. J., Ch. 380. (/) Jones V. Chappell, L. R., 20 Eq. 539 ; 44 L. J., Ch. 658. SECT. II.] RIGHTS OP PROPERTY IN LAND. 431 chimney in close contiguity to dwelling-houses in the occupation of his tenants, although the noise and the smoko render the houses uninhabitable, and the tenants give notice to leave ; for the occu- piers of the workshop and the funiaoo may bo compelled, by proceedings on the part of the tenants, to discontinue the nuisance. " The action," observes Brarawell, 13., " should be brought by the tenant. It is said that the noises diminished the value of the premises. I do not agree to that. If the tenant is damaged by them to the value of 10/., he will get 10/. compensation." *' In order to give a right of action to the reversioner," further observes Pollock, C. B., " the injury must be of a permanent nature. Here the hammering and noises may be stopped and the nuisance removed at any time" (ff). If, however, the tenant actually leaves the premises, and the reversioner comes into possession, then an immediate injury accrues to him, in respect of which he has an immediate right of action. In the case of permanent injuries to buildings, from trespasses or acts of negligence by strangers, the tenant is entitled to sue in respect of the immediate residential injury, and the reversioner in respect of the diminished saleable value of the property (/<). Where trees have been injured by a stranger, the lessor and the lessee may both sue in respect thereof ; the lessor for the damage done to the body of the tree, the lessee for the loss of the shade and fruit (/). So may the copyholder and the lord (A). But the reversioner cannot maintain an action against a stranger for entering upon land in the occupation of his lessee, and with carts and horses trampling down the soil and grass, though the entry is made in the exercise of an alleged right of way, as the act is not attended with any permanent injury to the reversion. " Such an act," observes Parke, J., " done while the premises were out on lease, would not be evidence of any right as against the rever- 409 sioner' ' ( /) . Where a house has been burned down , or destroyed by culpable negligence, and there are several persons interested in the property, viz., tenant for life, tenant in tail, and reversioner in fee, the tenant for life can recover o^ ""y such damages as are com- mensurate with his life estate (w*). «• house demised to a tenant has been set on fire, or thrown down ough the negligence of a neighbour, the damages are apportion-* ble between the landlord and tenant. The tenant is entitled to recover in respect of the value of his possessory interest and unexpired term in the premises, c c: :3 j i 'J {g) Mumford v. Oxford, Worcester ^• Wolverhampton Rail. Co., 1 H. & N. 33. Simpson v. Savage, 1 C. B., N. S. 347 ; 26 L. J., C. P. 50. : (A) Hosking v. Phillips, 3 Exch. 168. (i) Bedingfield v. Onslow, 3 Lev. 209. [k) Jefferson v. Jefferson, ib. 131. (/) Baxter v. Taglor, 4 B. & Ad. 76. (m) Evelyn v. Jtaddish, Holt, N. P. C. 543. 432 INJURIES TO RIGHTS OF rROrKRTV. [rHAP. VIII. M- f and tho landlord in rospoct of the injury to his reversion (»). But, if the tenant is bound by covenant to keep tho house in repair, tlio substantial injury will then accrue to the tenant, and tho tenant will be entitled to recover tho cost of rebuilding the liouso, deducting the difference in value between old materials and now(o). The tenant, moreover, will be entitled to damnj^es in respect of tho loss ho has sustained in being obliged to seek out and pay for another residence; but he cannot recover the full value of the house ( p) . An obstruction to the exercise of a private right of way appur- tenant to lands or tenements which, if allowed to continue unopposed, would be evidence against the enjoyment of the right, irt, of coiu'se, an injury to the reversioner, in respect of which an action for damages is maintainable (7), " The erection of a wall," observes Maule, J., '* across a way — assuming, of course, that there was no contract as between tho tenant and the defendant — would be an injury to tho reversion, although such wall might bo pulled down before the plaintiff became entitled to the actual possession of the land ; and there might be such a locking and chaining of a gate as would amount to as permanent an injury to the plaintiff's reversionary interest as the building of a wall"(/'). But a reversioner cannot maintain an action against a stranger for merely entering upon his land held by a tenant on lease, though tho entry is made in the exercise of an alleged right of way, such an act during the existence of the tenancy not being necessarily injurious to the reversion. Neither can he maintain an action in respect of an obstruction of a public way lending to' his property, unless he can show, either that the obstruction is of a permanent character, or that it would afford evidence against the existence of the right, if it was allowed to continue unopposed. For the public injury the landlord has a remedy, as one of the public, by indictment ; and he is not 410 himself personally damnified merely by his tenant's being temporarily prevented from enjoying his house in so ample a manner as he might otherwise have done. But, if the obstruction appears to be of a permanent character, or professes, either by notice affixed, or in any other way, to deny the public right, and BO lead to an opinion that no road was there, the value of the house might be lowered in public estimation, and pecuniary loss might follow, for which an action might be maintained by the reversioner (s). ill (;») Panton v. /«/ia»i, 3 Lev. 369; 1 Sidk. 19. (0) Lttkin V. Godsall, 2 Peake, 15. Ip) Hoiking v. Phillipt, 3 Exch. 182. {q) BattishiU\. Reed, 18 C. B. 696; 25 L. J., C. P. 290. (/•) Kidgill v. Moor, 9 C. B. 378. (») Bobson V. Blachmre, 9 Q. B. 1004 ; SECT. II.] RIGHTS OF PROPERTY IN LAND. Ifi 433 An action is also maintainable by the reversionor of a mill demised to a tenant, for the diversion by a stranger of water from the mill-head ; for, if the diversion were allowed to continue with the knowledge of the reversioner, and without interruption from him or his tenant, it might eventually be made the foundation of a legal right to divert the water, to the serious injui'y of the inhe- ritance. Where permanent damage has been done to property, let on lease, by the erection of a wall or hoarding obstructing ancient lights, and lessening the value of the property in the market, there is an injury to the reversion, in respect of which the rever- sioner is entitled to maintain an action (/), as well as an injury to the possession, in respect of which the occupier may sue. A wooden hoarding of an unsubstantial character may cause per- manent injury to the property, by the obstruction it offers to the passage of light and air, and may be an injury to the rever- sioner («). If the windows of a house occupied by the servant of the owner have been unlawfully darkened or obstructed, the owner may sue for the immediate injury as the occupier of the house, the occupation of the servant being the occupation of the master (.r) ; but, if the house is in the possession of a lessee paying rent, the action should be brought in respect of the injury to the reversion (//). Proof of possession of land and pernancy of the rents is pnmA facie evidence of a seisin in fee of the person possessed, the pre- sumption being in favour of the fee and not of any less estate (s), unless it is rebutted by a contrary presumption arising from the surrounding circumstances. If, therefore, a person is shown to be in receipt of rent, he is presumed to be entitled to the reversion in fee of the laud in respect of which the rent is received, unless the 411 rent is so disproportioned to the annual value of the property, as to lead to the presumption of its being a mere quit rent («) . Thus, in an action on the case for an injury to the plaintiff's reversion in cutting down trees on land in the possession of his tenant, proof of payment of rent by the latter to the plaintiff is prima facie evidence of the plaintiff being the reversioner, and of the trees being his property {h). Tenant ami reversioner — Rights against strangers — Damages. — If C c: ri < X H 4 16 L. J., Q. B. 233. Uopwood v. Scho- Jield, 2 M. & Rob. 34. Kidgill v. Moor, 9 C. B. 379. (0 Jesserv. Gifford, 4 Burr. 2141 ; 3 Leon. 209. Shadtvell v. Hutchinson, M. & M. 350. [u) Metropolitan Association v. Pdch, 5 C. B., N. S. 604 ; 27 L. J., C. P. 332. (i) Bertie V. Beaumont, 16 Ilast, 33. A. [if) And if there is a lease in writing, it must be produced. Cotterill v. Hobby, 4 B. & G. 465. (z) Jayne v. Price, 5 Taunt. 326. Doc V. I'enfold, 8 C. & P. 637. (a) Boe V. Johnson, Gow, 173. Bey- nolds V. Reynolds, 12 Ir. Eq. Rep. 181. (i) Daintry v. Brockkhiirst, 3 Exch. 209. F I" rr 434 INJUKIi:S TO HIGIIT8 OP PROPERTY. [cHAP. VIII. i. Ml' I tho plaintiff is only tenant on sufforanco or tenant at will, the damages may be merely nominal. Where a trespass, of which tho plaintiff complained, consisted in pulling down a wall between tho close of tho plaintiff and an adjoining close of tho defendant, in doing which a few bricks and some mortar foil upon tho plaintiff's land, and no evidence was given as to tho nature of tho plaintiff's interest in the premises, and the jury gave In, damages, it was hold that, as tho plaintiff had not proved that ho had any interest in the land beyond that which results from tho bare possession, ho had not shown himself to be entitled to any greater damages than the jury had given (r). But, where the plaintiff proves that he is in tho actual occupation and possession of the land and crops growing thereon, he will be entitled to recover exemplary damages from trespassers who wrongfully enter upon the land, and trample down and injure the crops, although he is only tenant at will ; for, if a stranger subverts land leased at will, the lessee may bring an action against him and have limages for tho profits ; and the lessor may have another actioi., and recover damages for tho destruction of the land {d). But, as the injury consists of two parts, an injury to a temporary right in the lessee and to tho per- manent freehold of the lessor, the damages must be assessed with reference to their several interests ; for, where different persons have distinct rights in tho subject-matter of a trespass, tho com- pensation must be to each in proportion to the injury he has re- ceived. One of them cannot claim that part of the compensation which belongs to another ; nor can tho satisfaction made to one be a bar to an action brought by tho other (e). In an action for an injury to the plaintiff's reversionary interest, by pulling down a house in tho occupation of the plaintiff's yearly tenant, it was held that the diminution in the saleable value of the promises was tho true criterion of damage, and that the jury should consider how much less the land was worth in consequence of the loss of the house (/). But where 412 an action is brought by a reversioner to recover damages in respect of an injury to his reversionary estate in certain lands and premises, by reason of a nuisance committed by the defen- dant, the diminution in the saleable value of the premises is not the true criterion of damage, because every day that the defen- dant persists in continuing the nuisance, lie renders himself liable to another action. Nominal damages are generally given in the first action ; and then, if the defendant persists in con- (c) Ttoynam v. Knowks, 13 C. B. 224. (rf) 2 RoU. Abr. 561. {c) Ghambre, J., Altenoll v. Stevens, 1 Taunt. 194. (/) Hoiking v. PhiUips, 3 Exoh. 168. SECT. II.] RIGHTS OF PROPERTY IN LAND. 435 tinuing tho nuisance, and another action is brought, and a verdict is obtained against him for continuing the nuisance, tho jury f-'enorally give exemplary damages, to compel an abatement of the nuisance {(/). If, however, the jury choose to give sub- stantial damages in tho first instance, there is nothing to prevent them from so doing (h). Wherever the nuisance was, in its oommoncemont, an injury to the reversion, on any ground whatever, tho continuance of the nuisance nmst be so likewise ; and an action is maintain- able by tlio reversioner, foli'cs (juolies, until tho nuisance is abated (/). Tenant and revenionet' — Riyhts againnt utranyers — Ly'nnrtion. — The courts will interfere to protect by injunction the proprietary rights of a reversioner, as well as the enjoyment by tho tenant or occupier (/•). But, where tho injury is of a temporary nature, not likely to last long, nor to deteriorate the marketable value of the property, the reversioner has no claim to tho interference of tho court (/). Tenant and reversioner — liiy/its against each other — Waste.— ** Waste," observes Blackstono, " is a spoil or destruction of houses, gardens, trees, or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion. It is either voluntary, which is a crime of commission, as by pulling down a house, or it is permissive, which is a matter of omission only, as by suffering it to fall for want of necessary reparations. Whatever does a last- ing damage to tho freehold or inheritance is waste. Tenant for life or term of years was not by the common law responsible for waste ; nor was waste punishable in any tenant, Excepting guar- dian in chivalry, tenant in dower, and tenant by the curtesy. And the reason of the diversity was, that the estate of these three tenants was created by the act of the law itself, which, therefore, gave a remedy against them ; but tenant for life, or for years 413 came in by the demise and lease of the owner of the fee ; and, therefore, he might have provided against the committing of waste by his lessee; and, if he did not, it was his own de- fault " (/«). But, for the benefit of reversioners, it was provided by the statutes of Marlbridge («), and of Gloucester (o), that every man from thenceforth should have a writ of waste in the {g) Hopwood V. Schofield, 2 M. & Rob. 35. BatthhiU v. Seed, 18 C. B. 714 ; 25 L. J., C. P. 290. (A) Cresswell, J., Battishill v. Reed, tupra. (i) Shadtvell y. Hutchinson, 2 B. & Ad. 97. (k) Wilson V. Townend, 1 Dr. & 8m. 324 ; 30 L. J., Ch. 25. Ilcrz v. Union Bank, 2 Gift. 686. H) Cleeve v. Mahany, 9 W. R. 882. 2 Bl. Com. ch. 18, s. 6. In) 62 Hen. 3, c. 23. («) — - ^ - o) 6 Edw. 1, 0. 6, repealed. See 42 & 43 Vict. 0. 69. F V 2 436 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. mu> - 'S -i (i 1 :i chancery against him that holds for term of life or years, or a woman 'a dower ; and for waste made in the time of wardship it shall Lc done as is contained in the great charter, &o. Since the passing of these statutes, therefore, all tenants for life or term of years have been liable in damages for waste, unless thelt leases have been made to them without impeachment of waste. All tenants, whatever their term or interest, are liable for com- missive waste ; but a mere tenant at will, or from year to 3 ear, is not responsible for permissive waste (p). Commissive, or, as it is more frequently termed, wilful waste, consists, amongst other things, in the doing by a tenant of some wilful injury to the premises demised to him, such as pulling down houses and buildings, prostrating walls, removing landlord's fixtures, breaking windows, or tiles and slates, and uncovering the roofs of houses, digging or ploughing up, or destroying the surface of ancient pasture land, and sowing the land with pernicious crops (q), digging and carrying away brick-earth (/•), or stones (s), opening mines or quarries {t), abusing a limited right to dig for and carry away stone (»), cutting turf (^), timber (y), or under- wood of insufficient growth (s), or pulling down fences and buildings, and carrying away the materials (a). Tenant for life not made unimpeachable for waste by the person creating the tenancy is, by the statute of Gloucester (i), put upon the same footing, with regard to waste, as tenant for a term of years, and is responsible for permissive as well as commissive waste, so that, if he fails to keep up and maintain buildings, walls, and fences, he will be liable to an action for dilapidations. If the roofs of houses are uncovered by the wind, he must, in convenient time, repair them ; but, if buildings are blown down by a violent 414 tempest, or destroyed by lightning, he is not bound to re- build ; and, it a house was uncovered and ruinous when he came into possession of it, it is then no waste to suffer it to fall down, as he is not bound to keep up and maintain a mere ruin (c). He is entitled to all such trees fdlled by the wind as he would have been entitled himself to fell, and also to all proper thinnings of planta- (p) Harnett v. Maitland, 16 M. & W. 267 Redfern v. Smith, 1 Bing. 382. Tenants for life under the Settled Land Act, 1882, are protected as regards waste in nxaking improvements, s. 29. (?) Wnrsley v. Sttinrt, 4 Bro. P. C. 377. Druri/ V. Molins, 6 Ves. 323. Pratt v. Brett, 2 Madd. 62. (r) London [Bishop of) v. Web, 1 P. Wms. 528. Vincr v. Vaughan, 2 Beav. 466. («) Coivpery. Baker, HVus. 128. (<) Gibson v. Smith, 2 Atk. 182. Under the Settled Land Act, 1882, s. 11, part of the mining rent is to be set aside as tapital under a mining lease. («) Thomas v. Oakley, 18 Ves. 184. [x) Coppinger v. Gubbins, 9 Ir. Eq. Eep. 310. (g) Perrot v. Perrot, 3 Atk. 94. Pack- ingtoti's ease, 3 Atk. 216. Morris v. Morris, 16 Sim. 509. (i) Brydges v. Stephens, 6 Madd. 279. (rt) London [Mayor of) v. Ilcdger, 18 Ves. 356. (A) 6 Ed. 1, c. 5. (c) 2 Roll. Abr. Waste, C. Co. Litt. 53. Bac. Abr. Waste. SECT. II.] BIGHTS OF PROPERTY IN LAND. 437 tions, &o., as well as to all coppices and osier beds out in the nature of crops ; but it seems to be doubted whether he has a right to cut poles ((/). He may properly work an open mine, i.e., a mine which has been worked within a few years of his coming into possession; but he cannot open a new mine and search for and carry away minerals (e). Tcuant and reversioner — Rights against each other — Waste in trees. — Tenant for life not made unir"^.peachable for waste may not cut timber. The question of what is timber depends, first, on general law ; and, secondly, on the custom of the locality. By the general law, timber trees are those which serve for the building or reparation of houses, such as oak, ash, and elm (/), provifled they are of the age of twenty years and upwards, and provic ed they are not so old as not to have a reasonable quantity of useuk^le word in them, sufficient, it has been said, to make a good post. But the kind of tree which may be called timber may be varied by local custom. In some localities beech trees are considered timber, in others birches {g), in others hornbeam, and even white-thorn and black-thorn, and many other trees. Again, in certain localities, arising probably from the nature of the soil, trees of twenty years old are not necessarily timber ; and, in other places, the test of when a tree becomes timber, is not its age but its girth. In the case of estates which are cultivated merely for the produce of sale- able timber, which is cut periodically, it is not waste to cut the timber in accordance with the usual course, because in such a case the timber so cut down is looked upon as the annual profits of the estate. The tenant for life cannot cut ornamental trees, or destroy " germins," or stools of underwood (//), nor can he destroy trees planted for the protection of banks. But, with these and some similar exceptions, he may cut all trees which are not timber, except such trees as, being under twenty years of age, would become timber if they were allowed to grow to the requisite age (/) ; these last, however, may be cut down, provided it is done 415 for the purpose of allowing the proper development and growth of other timber which is in the same wood or plantation (k). The property in timber wrongfully cut down by the tenant for life or anybody else, or blown down by a storm, if it is timber properly so called, belongs to the owner of the first vested estate S •XI 'A ^ ■ ((/) liatemtiu v. llutchkhi, 32 L. J., Ch. 6. (e) Bagot v. liagot, 32 Beav. 509 ; 33 L. J., Ch. 116. This applies to quarries aa well as mines. Elum v. Griffith, 8 Ch. D. 521 ; 48 L. J., Ch. 203. (/) 1 Cruise's Dig. 116. \g) Aubreij v. Fisher, 10 East, 440. Larch trees appear not to be timber, per Baggallay, L. J., in Harrison v. Harri- son, 28 Ch. D. 227 ; 54 L. J., Ch. 617. (/() 2 Roll. Abr. 815, 817. Gage v. Smith, Godb. 210, pi. 298 ; 1 Inst. 53 a. (0 2 Roll. Abr. 815, 817. (/.) Hollywood V. Honywood, L. R., 18 Eq. 306; 43 L. J., Ch. 654. 438 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. I* P. h.H" I', |ti Ij . il «. :t- *■■:■' i». .1. • -• •Ml: of inheritance (/), unless he has colluded with the tenant for life to induce him to cut it down, in which case the court will interfere, and not allow him to get the henefit of his own wrong (»*). If the timber so cut or blown down is not timber properly so called, it belongs to the tenant for life, unless ho has himself cut it down wrongfully, in which case also the court would probably interfere, and not permit him to take the benefit of his own wrong (w»^). If timber is decaying from age, or if for any special reason, as from its injuring other timber, it is proper that it should be cut down, but the tenant for life has no power to do so, an order of the court may be obtained, in a suit properly constituted, to have it cut down, unless it is for the defence and shelter or ornament of a mansion house («) ; and in that case the court will dispose of the proceeds on equitable principles, and make them follow the interests in the estate, that is to say, the proceeds are invested, and the income given to the successive owners of the estate, until it comes into the possession of the owner of the first absolute estate of inherit- ance, who thereupon becomes entitled to the fund (o). But it is not sufficient, it seems, that the timber is merely ripe ; it must be for the benefit of the remainderman that it should be cut, as where it is decaying, or injuring the growth of other trees, otherwise no order will be made (^;). Where timber fit to be cut is felled by the tenant for life for the benefit of the estate, the person next in remainder may elect to treat the timber as lawfully cut, and require the value of it to be invested in land, and held as part of the estate, the tenant for life taking the interest of the fund, and the first owner of the inheritance, or tenant for life without im- peachment for waste, taking the capital {q). If the tenant for life cuts the timber without the authority of the court, that is a wrongful act ; and the Statute of Limitations will run against the 416 remainderman in fee from the time when the timber was cut, and not frorii the death of the tenant for life (/•). The tenant is, in general, entitled to take sufficient wood for necessary repairs to buildines and fences, to enable him to keep them up in the same state as ne foimd them in, but not for the [l) Bewick V. IVliitficld, 3 P. Wms. 268. Whitjicld v. Bewick, 2 ib. 241. See poit, p. 445. (»i) Powlett V. Bolton {Duchess of), 3 Ves. 377. TiiUit v. TuUit, Ambl. 370. Bare v. Hopkins, 2 Cox, 110. (m') Honywoodv. Iloni/wood, L. R., 18 Eq. 30G ; 43 L. J., Ch. (354. («) Biirges v. Lamb, 16 Ves. 182. Bewick v. Whitfcld, 3 P. WmB. 267. Field V. Brown, 27 Beav. 90. (o) Honywood t. Honywood, L. R., 18 Eq. 306 ; 43 L. J., Ch. 652. See Harri- son V. Harrison, 28 Ch. D. 220 ; 54 L. J., Ch. 617. {p) Seagram v. Knight, L. R., 2 Ch. 628; 36 L. J., Ch. 918. {q) Phillips V. Barlow, 14 Sim. 263. Gent V. Harrison, Johns. & H. 519 ; 29 L. J., Ch. 68. Bagot v. Bagot, 32 Beav. 609; 33 L. J., Ch. 116. Loicndea v. Norton, 6 Ch. D. 139 ; 46 L. J., Ch. 613. (»•) Seagram v. Knight, L. R., 3 Eq. 398; 2 Ch. 628; 36 L. J., Ch. 918. Higginbotham v. Hawkins, L. R., 7 Ch. 676 ; 41 L. J., Ch. 828. i '■:: ill SECT. II.] RIGHTS OF PROPERTY IN LAND. 439 purpose of making new buildings or fences, where none before existed (s). Tenant and reversioner — Rights against each other — Waste by taming and reclaiming deer. — ^In the old books, the feeding of deer is declared to be waste where the deer have always been kept on the estate in a wild state ; for wild deer go with the land to the heir-at-law, whereas, if they are fed and reclaimed, they cease to be animals ferw naturae, and become personal property, and are severed from the freehold, and go to the executor ; and it is this alteration in the nature of the property which makes the taming of the wild animal waste. But wild deer which have never been fed are seldom to be met with in England at the present time {t). Tenant a^d reversioner — Rights against each other — Equitable waste. — Where tenant for life held without impeachment for waste, he might, nevertheless, have been restrained from committing what is termed equitable waste, which consists in doing acts of destruc- tive injury to the property, to the detriment of the persons entitled in remainder ; and, by the Judicature Act, 1873 (it), an estate for life without impeachment of waste will not confer upon thfe tenant for life any legal right to commit waste of the descrirtion known as equitable waste, unless an intention to confer such right ex- pressly appears by the instrument creating the estate. The term ** without imp achment of waste," contained in a deed or will creating a life estate in land, does not enable the life tenant to d il with the property as if he were the absolute owner thereof in fc' simple. He may cut down timber and growing trees fit for tim^'r>r (a;), and convert them to his own use(^), and open new minf3, and work them for his ow i benefit ; but he cannot dig and carry off brick-earth, and destroy l. field, to the prejudice of the inheritance (s) ; and he will be restrained from committing wanton and malicious waste, such as damaging and destroying buildings, pulling down ancient boundary walls and fences («), and cutting c: 'in t*'. (s) 1 Inst. 53 b. Folci/ v. JFikon, 11 Eant, 66. {t) Ford V. Ti/iUe, 2 Jolina. & H. 150 ; 31 L. J., Ch. 177. (ii) Sect. 25, sub-sect. 3. {.>■) fimythc V. Smijthe, 2 Swanst. 251. Gurdmi v. ll'oodforil, 29 L. J., Ch. 222. A tenant for life is entitloil to all trees and timber which have fallen, and may- cut such as are necessary for the pur- poses of fuel or repair (IfoKi/hloii v. Cooper, B. Mou. (Ky.) 287 ; 'Shttltz v. Ilar/,c); 12 8. & II. (Penn.) 272 ; Harris V. Godiii, 3 Har. (Del.) 19; Moers v. irait, 3 Wend. (N. Y.) 104) ; and may, ■when necessary, cut trees to sell, to buy boards, to make repairs {Loomis v. Jf'il- ber, 5 Maes. (U. S.) 13), or cut timber from one lot to repair fences on another. Oiniis V. Hi/de, 6 Yeng. (Tenn.) 334. Where it is the custom of the country to do BO, ho may sell hay from the farm (l^urles V. Sarles, 3 Sandf. Cli. (N. Y.) COl) ; BO ho may work mines and quar- ries which are open {Corr v. ''urr, 4 D. k B. (N. C.) 170 ; Loomis' Appeal, 31 Penn. St. 44) ; but he may not open new mines. Mill v. Taylor, 22 Cul 191; Vniled States v. Farrott, 1 McAU. (U. S. C C 1 271 (v) Fi/ncY. For, 1 T. R. 56. (■;) Zoiidon [Jiisfwp of) v. Web, 1 P. Wms. 528. {a) Aston v. Aston, 1 Ves. sen. 265. Vane v. Lord Barnard, 2 Vem. 739; Co. Litt. 220 a. Buke of Leeds v. Lorii Amherst, 14 Sim. 367. 440 I- if INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. ¥'/. f u t- ■ ■ .» ^"1 If, H. I ^i ' r •..^ 1 •„H • p, ,. J •*•!! ■s:!; . ^ t-x ' 1 .' ■H m\ i\ 417 down thriving wood unfit for timber, and the felling of which would be destructive to the property {b) ; also from cutting down trees which were either planted or left standing for the shelter or ornament of a mansion-house (c). He may, however, cut such ornamental timber as the court would direct to be cut for the preservation of the rest, and will be entitled to the proceeds of it {(l). But he is not responsible, although ho allows a mansion- house and buildings to go to wreck and ruin for want of timely repairs to the roof and windows (e) ; nor if he pulls down a ruinous structure, and uses up the materials in rebuilding it (/). A tenant in fee simple subject to an executory devise over will also be restrained from committing that sort of destructive injury to property which is called equitable or malicious waste ; but he is entitled to ccumit ordinary waste, such as cutting timber, not being ornamental timber, unless he is restrained by the will creating his estate from cutting down timber of any kind ('K (A) Bac. Abr. Waste, N. (/) Lathropp v. Marsh, 5 Vea. 259. (m) Eobiiison v. Litton, 3 Atk. 210. ^ee Birch- Wolfe v. Birch, L. R., 9 Eq. 683 ; 39 L. J., Ch. 345. (h) Purccllv. Nash, 1 Jones, 625. (o) Knight v. Mosehj, Amb. 176. Wither v. Lean, S;c. of Winchester, 3 Mer. 427. Luke of Marlborough v. St. John, SDeG. & S. 179. {p) Uolilen V. Weekes, 1 J. & H. 278 ; 30 L. J., Ch. 35. (i?) Robinson v. Litton, 3 Atk. 211. {r) Haigh v. Jaggar, 2 Coll. Ch. C. 231. («) V.-C. Wood, Talbot (Earl of) r. Scott, 4 Kay & J. 108. And see the Judicature Act, 1873, sect. 25 (8). f! f 5- J 446 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. 423 to recover possession has been brought, the court will, at the instance of the plaintiff in the action, restrain Iho person in possos- sion of the property from recklessly cutting down vast quantities of timber, or denuding the estate of trees, or committing acts of waste and destruction inconsistent with any fair or reasonable exercise of acts of ownership (t) ; and, whore waste is committed by a stranger in collusion with the tenant, the court will, at the instance of the landlord, grant an injunction against such stranger, as well as against the tenant (m). But " the court never interposes in case of permissive waste, eith*' o prohibit or to give satisfaction, as it does in the case of wilful wuhio" (x). An injunction will be granted against waste, when it is done only in a slight degree, or when threatened ; but not on the prin- ciple that it will do no harm to the defendant, if he does not intend to commit the prohibited act (y). Tenant ami reversioner — RUjhtH against each other — Waste — Effect of laches or delay in seehing a remedij. — Where an expectant tenant for life in remainder sees a tenant for life in possession improperly cut timber, and not only takes no step to prevent it during his life, but allows a long period of time to elapse after his death without seeking redress, the court will not, after this long lapse of time, charge the estate of the prior tenant for life with the burthen of making good the value of the timber so cut by him ; for the courts are averse to the assertion of stale demands (c). Division of rights — Joint tenants and tenants-in-conimon, — Where two persons are teuants-in-common of land, the one is answerable to the other for any act by which the latter is ousted, actually or constructively, from the enjoyment of the common property. Thus one tenant-in-common may sue his co-tenant-in-common for turning him or his servants off the land or out of the house held in common. But the putting of a lock upon a gate by one tenant- in-common is not sufficient evidence of an ouster to sustain an action (a). So long as a tenant-in-common is only exercising law- fully the rights he has as tenant-in-common, no action will lie against him by his co-tenant ; but, where there has been a direct and positive exclusion of the co-tenant-in-common from the common property, he seeking to exercise his rights therein, and being denied the exercise of such rights, or where something has been done by one of the co-tenants which has destroyed tlie common property, there is a good cause of action (i). If one (t) Male V. Cripps, 4 K. & J. 472. («) Norway v. Itotve, cited 1 Myl. & Cr. 622. i'.() Powys V. Blayrave, 4 De Gex, M. & G. 448. (y) Cojln V. Coffin, Jacob, 70 ; and under s. 25 (8) of the Judicature Act, 1873, the coxirt ■will interfere to prevent threatened waste, ante, p. 390. (;) Uarcourt v. White, 28 Beav. 311 ; 30 L. J., Ch. 681. (a) Jacobs v. Seward, L. R., 5 H. L. 464; 41 L. J., C. P. 221. (i) Jacobs V. Seward, L. B., 5 H. L, 464, 474; 41 L. J., C. P. 221. SECT. II.] RIGHTS OP PROPERTY IN LAND. 447 424 tenant-in-common misuses that which he han in common with another, ho is answerable to the other in an action as for mis- feasance (c). lie is responsible to his co-tenant-in-common for cutting down trees, or pulling down walls, or doing any act tending to the lasting injury of the common property (il). So an action of trespass is maintainable by one tenant-in-common against his co- tenant-in-common, or the licensee of the latter, for digging and carrying away the soil of the close, as brick-oarth or turf, as it destroys the subject-matter of the tenancy-in-common, and amounts in contemplation of law to an actual ouster (r) . If one tenant-in-common of a wall destroys the wall which is the subject of the tenancy-in-common, that is an actual ouster and expulsion of the one by the other, so that the party expelled and injured may maintain an action against the wrong-doer for the recovery of damages ; but, if the wall is pulled down for the mere purpose of rebuilding it, and providing a better and stronger wall, no action is, it seems, maintainable (,/"). If an improper addition is made to the height of the wall by one tenant-in-commou to the injury of the other, the latter may remove the heightened portion of the wall {(/). Where a building is placed against the wall by one of two tenants-in-common of the wall, and the wall is height- ened and carried up into a chimney, this is evidence of an ouster of the other tenant-in-common, as the altered wall and the old wall are not identical things, and the nature of the property is substan- tially changed (h). So, if two several owners of houses have a river or stream in common, and one of them corrupts it, the other shall have an action against him for damages. If there are two tenants-in-common of a wood, and one of them leases his part to the other, who cuts down young timber trees and does waste, he shall be punished for a moiety of the waste, and the lessor shall recover a moiety of the place wasted : but one tenant-in-common cannot maintain an action in the nature of waste against the other, for cutting down trees of a proper age and proper growth ; for this is no injury to the inheritance. So, if there are two tenants-in- common of a close, one cannot maintain an action of tort against the other for cutting the grass and making it into hay (/) ; or, if there are two tenants-in-common of a coal mine, one cannot sue (c) Ld. Kenyon, C. J., Murtyn v. KnotvUys, 8 T. R. 145. Id) Holt, C. J., Waterman v 1 lid. Raym. 737. & C. 267. (e) Wilkinson v. Haygarth, 12 Q 845. (/) Cithitt V. Porter, 8 B. & C. 257. Tms common lav right is modified in the mt'lropolis by the provisions of the Metropolitan Building Act (18 & 19 Sopor, Ciibitl V. Porter, 8 B. B. Vict. c. 122). Standard Bank of British South America v. Stokes, 9 Ch. D. 68; 47 L. J., Ch. 654. {y) Cubitt V. Porter, 8 B. & C. 257. Murray v. Hall, 7 C. B. 441. Murly v. M'Dermott, 8 Ad. & E. 138. (h) Stedman v. Smith, 8 El. & Bl. 1 ; 20 L. J., Q. B. 315. (i) Jacobs V. Seward, L. R., 5 H. L. 404; 41 L. J., C. P. 221. '3 <; A -■I <■ •5 } :■! I • ! 1 t 1 . • • 5 - 448 INJURIES TO niailTS OF rUOPKUTY. [clfAP. VIII. 425 tlio other or his lloensoo for working tho ooal {/>■). But, iu cither of tho tliree laHt-mentionod cases, lio is ontitlod to recover a moiety of tho value of tho tree, hay, or coal (/). By tho common law, indeed, joint tenants and tonants-in- common had no remedy against each other where only one received the whole profits of tho estate ; for ho could not bo charged us boiliff or receiver to his companion, unless ho actually made hinv BO. But by the 4 Anne, c. 10, s. 27, it is provided, that joint tenants and tenants-in-common, and their exei-utors and adminis- trators, may have an account against the others as bailiffs, for receiving more than their just share or proportion (w*). Where a tenant-in-conimon continues in occupation as tenant at sufferance, after the expiration of a lease to him by his co-tenant, lie will be liable in an action for use and occupation at the suit of the latter. One tenant-in-common who expends money on ordinary repairs has no right of action against his co-tenant for contri- bution («)• Joint tcmntH and tcnantn-in-common — Ruinoun paHi/'Walh, — If injury results from tho non-repair of a party-wall, of which tho plaintiff and defendant are tenants-in-common, and there has been a neglect of the duty to repair on the part of tho plaintiff, as well as on the part of the defendant, tho plaintiff cannot recover damages (o). Where tho plaintiff and the defendant being jointly interested in the pulling down and rebuilding of a party-wall between their respective houses, each appointed an agent to superintend tho execution of the work, and the work was negli- gently done, and the plaintiff's house was much injured from the want of proper support during the execution of the work, it was held that he could not maintain an action for damages against the defendant, as the blame was the common blame of both. " Since the wall," observes Lord EUenborough, " was taken down by both, neither could impute negligence to the other " ( jo ). But where A and B were adjoining owners, and A employed a contractor to pull down and rebuild his house, which involved an f [k) Job V. TuUon, L. R., 20 Eq. 84 ; 14 L. J., Ch. 262. (/) Martyn v. KiiowUys, 8 T. R. 145. (»i) See Jacobs v. Sctrard, L. R., 5 H. L. 464; 41 L. J., C. P. 221. (//) Lfiifh V. Dickcson, 15 Q. B. D. 60; 54 L. J., Q. B. 18. (o) See Chauntler v. Robinson, 4 Excb. 163. In Fitzherbert's Abridgment we read that, "where there arc three ten- antH-in-common or joint tenants of a mill or house which falls to decay, and one will repair, but the others will not repair the same, he shall have a writ de reparalioue fm-kmlii against them, and the writ is such, &c. And so, if a man lias a house adjoining to my house, and he suffers his house to lie in decay to the annoyance of my house, I shall have a writ against him to repair his house iu such form : ' Command A. that, &c., ho cause to be repaired his certain house in N., which threatens destruction to the nuisance of the freehold of B., in tho same town, which ho ought and hath been used to repair.' " Fitz. Nat. Brev. 127. Co. Litt. 56 b. This writ was abolished by the 3 & 4 Wm. 4, c. 27, s. 36. {p) Hilly. TJ'unrii, 2 Stark. 378. SECT. II.] niniiTS or rRopKRTY i\ L.wn. 440 426 interferonco with tho party wall likely to oauso tlamago, and 7y'« hoiiflo was injured, it was hold that A was liablf3 for tho negli- gent acts of his contractor (y). ItiylitH of the Hiirriror of tun Joint tenants or tpiiinitn-iti-roiiinion. —J\[ caso of tho death of one of two joint tenants of luti'ls or chattels, the wliolo interest in the property passes to tho survivor ; but, in tho caso of tho death of one of two tenants-in-eoninion of real property, tho share and interest of tlio deceased passt's to hia heir-at-law, and, in tho caso of a tenancy-in-coinnion of chattels, to tho ijorsoniil representatives of tho deceased. Joint disseisorB nro joint tenants and not tenants-in-eonuuon ; and so aro persons who continue to hold land after thoir title has expired (r). Joint tcnrnitH and tcnantn-in-ronunon — Rvmcilji tji/ injunction.—' The court will, by injunction, prevent one tonant-in-coninion from wilfully destroying tho common property (v) ; but, whore a railway company obtained a lease from five out of six tenants-in-comraou, and laid down a railway on tho land in spite of tho opposition of the sixth, tho court refused to grant an injunction to prevent the latter from tearing up tho rails (/). If one tenant-in-common thinks proper, by agreement with tho other, to hold tho common property as occupying tenant, and thereby excludes his co-tonant- in-common from all right of entry upon tho land held in common, an injunction will be granted to restrain him from dealing with tho land otherwise than as an ordinary occupying tenant {u). But, if there is no tenancy, tho tenant-in-commou in occupation of tho land cannot be restrained from acts which are merely contrary to good husbandry and the custom of the country, but which do not amount to the destruction or waste of the common property (.r). Rights of propertij in special cnscs — Ou-iicr.shij> of minerals. — Prima facie tho owner of tho surface is entitled to tho surface itself and all below it e.r Jure iiaturcv ; and those who claim the property in the minerals below, or any interest in them, must do so by some grant or conveyance by him, or his predecessors in title, or, it may be, from the Crown. The rights of tho grantee to the minerals, by whomsoever granted, must depend on the terms of the deed by which they aro conveyed, or by which they aro reserved when the surface is conveyed. Prima facie it must be presumed that the minerals are to be enjoyed, and, therefore, that a power to get them must be also granted or reserved as a necessary incident, on the principle that, Quando aliquid conceditur, eoneeditur et id sine quo [q] jriKjhfH V. J'erfiial, 8 App. Cas. 443. And sco Dalton v. Angus and Jioiver V. I'l'ati; aiifi; p. 106. ((•) Jl'(ird\. Ward, L. R., 6 Ch. 789. (.'') Hole V. Thomas, 7 Vcs. 689. A. {i) J)n)hani a»d Sunderland Mail. Co. V. ll'uwm, ;j Boav. 119. («) Tinnt V. Twort, 16 Vea. 128. {X) Bail'!! V. JFobson, L. R., 5 Ch. 180; 39 L. J., Ch. 270. G G a P J; A WW PJJJ)lM(B|*ip».'< ^W'W'W-iWWWfliWWI" f^ i ! i 5 " is;.i, 450 INJURIKS TO RIGHTS OF PROPERTY. [ciIAP. VIII. 427 rc'< ipsfi f^'^'' noil pofrsf (//). A reservation of '* iniiiorals " in- cludes every substance which can be got from underneatli the surface of the earth for the purpose of profit, unless tliore is something in the context or in the nature of the transaction to give it a more limited meaning (s). Where the owner of a ninnor and of the demesne lands thereof, granted aM'ay the manor and all his estate and interest therein, " except and always rcsorved " to tlio grantor, his heirs and assigns, aN the coal in any of the said land.s, it was held that this reservation gave to the grantor an absolute and perpetual right in fee simjjle to the coals (a). Support from the huIjsoH. — Tlio owner of the surface is entitled of common right to the support of the adjacent strata, so that the owner of the subsoil and minerals cannot lawfully remove them without leaving support sufficient to maintain the surface in its natural state (/>). This is a rule of law founded on natural justice, and is a restraint on the exercise of dominion over property essential to the beneficial occupation and enjoyment of the soil. If land not granted expressly for building purposes is weiglited with buildings, the owner of tlio surface has no right to t)io addi- tional support necessary for tlie maintenance of the buildings until he has acquired the right by grant or prescription ; so that, if tlio owner of the subsoil in working mines leaves sufficient support for the surface, but the land sinks in consequence of the weight of the buildings that have been placed upon it, the owner of the subsoil is not responsible for the damage done (c). But if the weight of the buildings has in no way caused the sinking of the land, and the land would have fallen in whether buildings had been erected on it or not, the building on the land becomes quite immaterial, and the defendant is responsible in damages to the extent of the injury done to both houses and land {(I). Thus, if I grant a meadow to another, retaining the minerals under it, and also the adjoining land, I am bound so to work my mines and to dig my [y) Sheppard's Touchstone, <;li. 5, p. 89. lioubotham v. WHsmi, « II. L. (J. 348, 360 ; 30 L. J., (i B. 965. Wilkin- son V. I'roud, 11 M. i. ^V. 33. [z) Hext V. Uill, L. li., 7 Ch. 099 ; 41 L. J., Ch. 701. At/i/.-Oiii. for t/w Isle of Man V. Mi/tihrcist, h. II., 4 App. Cas. 294. £ell\.'ini«on,Ij.li., ICh. 303; 35 L. J., Ch. 337. Tlicrcforo the lord of the manor, who is entitled to all mine- rals, is entitled to coprolites. Alty.-Goi. V. Tomlinc, 5 Ch. D. 750 ; 46 L. J., Cli. 054. But not to the remains of a ])rc- historic boat. See Elices v. Jhitjy Gas. Co., 33 Ch. D. 666. [a) Cardigan [Earl uf) v. Annitaye, 2 B. & C. \Sl. As to the righ.ts of tho grantor's licensees, sve Milinlfi v. Ifcul- may, 34 L. J., C. i'. 113. (A) Humphries v. liruydin, 12 Q. B. 739. Slmart v. Morton, 5 L'A. & Bl. 47 ; 24 L. J., Q. B. 260. Itohnt.s v. Jli) Siihra;/ v. White, 1 M. & W. 435. As to fencing disiised mines, see the 35 & 30 Vict. c. 70, ss. 41, 51 ; e. 77, ss. 13, 23 ; 44 & 45 Viet. e. 20 ; and see Publio Health Act, 1875, s. 313. {<)) Cox V. Mousleij, 5 C. B. 549. {p) Cox V. OIkc, ib. 519, 553 ; 17 L. J., C. P. 102. SKCT, „.] KIGHTS OF PROPERTY IN LAND. 4o3 430 under the lease, he is in possession of hotli the surface and the minerals ; but he has no right to work the minerals without the licence of the lessor ; neither can the lessor work them without the permission of the lessee. If the adjoining occupier sinks a mine in his own land, and makes lateral excavations, trespassing upon the minerals of the lessee witliout disturbing the sui-face of the land in his occupation, the lessee may, nevertheless, maintain an action for the trespass and injury to his possessory interest, and the lessor may maintain an action for the injury to his reversion- ary estate. If the surface and minerals have been dissevered in title, and have become separate tenements, then the grantee or OAvner of the minerals is the only person entitled to sue in respect of trespasses upon tliom (y). Of the rUjht to s('(irc/i for minerals under Idiuls weighted hi/ rail- nvi/H and caiuils. — By the Railways Clauses Consolidation Act (8 & 9 Vict. c. 20), it is enacted (s. 77) in the case of the purchase of lands by any company constituted under that Act, that the com- pany shall not bo entitled to any mines of coal, ironstone, slate, or otlier minerals, under any land purchased by them, except such part tliereof as shall be necessary to be dug or carried away, or used in the construction of the works, unless the same shall have been expressly purchased, and that all such mines, excepting as aforesaid, shall bo deemed to be excepted out of the conveyance of such lands, unless they shall have been expressly named therein and conveyed thereby ; and by s. 78 it is enacted that, if the owner, lessee, or occupier of any mines or minerals lying under the railway, or any of the works connected therewith, or within the prescribed distance, nr, Avhere no distance shall be prescribed, forty yards therefrom, be desirous of working the same, such owner, &.G., shall give notice in writing to the company of his intention; and, if it appears to the company that the working of the mines is likely to damage the works of the railway, the company may, by giving compensation in the mode provided by the statute, prevent the working of the mines. But, if, within thirty days after the receipt of the notice, the company do not state their willingness to treat for tlie payment of compensation, the owner of the mines raay work them in a manner proper and necessary for the benefi- cial working tliereof, and according to the usual manner of working mines in the district, making good damage done to the railway or works by improper Avorking. Similar provisions haAO been in- serted in various Acts of Parliameut incorporating canal companies, and enabling them to purchase lands for the formation of a canal ; (r) Knjsf V. rotvrU, 2 JJl. & Bl. 144 ;. 22 Ij. J., Q. B, 30.',. /urf- v. nra.ith- u'liiti, 2 B. k Ad. 437. Seo JIamillon (Didc of) V. Oraham, L. R., 2 Sc. App. ICG, ;55 •i-n A ¥i^t ^"i' III' ' IK ■' IT. 454 INJURIKS TO KIGHTS OF rjJOl'KKTV. [CHAP. VIII. 431 and the effect of thom is to deprive the company of the riglit to support for the railway or canal from coal, ironstone, slate, or minerals lying beneath the surface of the adjoining land, within the purchasing distance, or beneath land over which the railway or canal is carried, unless they have purchased the slate or mine- rals, or compensation has been given in the manner prescribed by the statute (/•). The defendant was the owner of the minerals lying under a triangular piece of land, surrounded by three lines of railway belonging to the plaintiffs, and also of the minerals lying under certain portions of those throe lines. The company had purchased the siu-face but not the minerals. The defendant, in April, 1885, gave the company notice, under sect. 78 of the Hallways Clauses Consolidation Act, 1845, of his intention to Avork tlie minerals under the triangular piece of land, and also under the lines of railway. The company gave the defendant notice that they were willing to make compensation for the minerals under the lines of railway, and arbitrators wore appointed to assess the compensation. The defendant then gave the company notice that he intended to work the minerals under the triangular piece of land, and for tliat purpose to enter upon and across the line of railway. It was held, that such a mode of working would bo a trespass, and that the defendant must bo restrained from working in that way, but that he would be entitled to tunnel under the railway in order to ■work the minerals under the triangular piece of land, and that the company must compensate him for the extra expense of so working (s). Under statutory provisions of this sort, the company do not, in the first instance, pay to the landowner more than the value of the surface in the shape of purchase-money, or for the injury to the surface, if compensation only is made for damage, the minerals remaining the property of the owner of the soil ; but, when he is df'sirous of getting tlicm, the conipany have the option of pur- chasing thom at a fair price, to bo settled, in case of 'W'^v.te. in the usual v/ay. These provisions, it has been obsorv.-'d arc io: iac benefit of the company, who are relieved from the g*'e ■ .xpeDSc of buying the minerals along the whole lino >>f an ini-adjd ja-1- way or canal in the first ins:ance, before it is construct' d, ■iv^-l .iro enabled to postpone the pureliaso of Hum until the limev'nfM, from the state of the market in. the neighbourhood, the oa.mk :i> really want to get them. When this happecs, the company have an option, either to buy, in which case the landowner cannot get l"*-) Great WcsUi'n Jiail. C il II -1 /lb ., 4 : 433 These statutory provisions do not exclude the ordinary right of a purchaser to support from adjacent land situate beyond the purchasing limits ; and, therefore, where a vendor has sold land to a railway coni])any for the erection of a bridge or a viaduct, he cannot excavate his own adjoining land, situate beyond the pur- chasing limits, so as to deprive the bridge or viaduct of the neces- sary adjacent support (/>). Support whcvc the. separate floors of a huUdhxj arc granted to several different proprietors. — If the owner of a liouso conveys the upper story to a purchaser, there is an implied grant of support from the lower stories, so that the owner of the latter cannot inter- fere with tlio walls and beams upon which the upper story rests, and prevent them from affording proper support {e) ; and, if a man builds a house, and forms each story or flat into a separate dwelling, and sells or lets tlio different stories of the house to different individuals, there is an implied grant to every purchaser or hirer of the rooms of all such adjacent and subjacent support as may be necessary for the maintenance and enjoyment of each respective dwelling. When the different floors and flats of the same house are held as separate freeholds by different individuals, the owner of the lower rooms and foundations is, in general, bound to uphold and maintain the main walls and necessary supports of the rooms above {d). " Where 1 have a chamber below, and another has a chamber above mine, as tliey have here in London, in this case I may compel him avIio has tlio eliambor above to cover his eliamber for the salvation of the timber of my chunilior below; ii|i(} in the same manner he may compel mo to suHJaln my ulialllliel' ln')qw, by the reparation of tlio pvliiei|ial limber, for Uie siilviltion ot his chamber above" (c). 'Ull'l'l' Is W Wlit hi Natura MnliVjIiBf to a mayor, to command him that has the lnwer rooms In iejnill llio foundation, mid him that hus a garni to repair the rov)f ; iiiiil that is grounded up(m a custom {/). If tllB owuPl" (if a housn graiils the upper rooms lo be holden and enjoyed fdf life ol' lu ^ci', |'BSuf'ving to himself llio lower rooms, he impliedly uiiilertakes not to do anything which will derogate from his own grant. If, therefore, he were to remove the supports of the upper room, he would Lr liable to an action (r/) ; and, if he conveys the house to another by deed, reserving a lower story to 434 himself, with powers of enlarging and altering such lower (M Elliot V. North Eaxtern Rail. Co., 10 H. L. C. 333; 32 L. J., Ch. 402. Nortk EasttiH Jtml. Co. v. Cruiilami, 2 John*. & H. 3Go ; 32 L. J., Ch 353. ((•) Caledonian Jluil. Cu. v. ISjfrot, 2 Macq. 4&0. (dj Rtdumin V. lioae. 9 Eich. 221. Humph let V. Jirogden, 12 Q. R. 747. {<■) Anon., Koihv. 1>H, pi. 4. Anin., 11 Mod. 8. ( /') Tiwdit V. GoMuitt, 6 Mod. 314 ; 2 LlI. Kiiym. 1093; F.tz. N«t. Brcv. 127. ((/) Parko, B., JlurrU v. Rydiiiy, 5 M. &W. 71. SECT. II.J KIOIITS OF niOrEUTY IN LAND. 457 story, those powers must bo exercised so as not to interfere with or endanger the necessary support to the rooms above, unless the right of support is expressly renounced by the grantee of tho upper stories (//). If one man overloads tho floor of a warehouse with merchan- dise, so that tlio floor breaks and crushes the goods of another man in the iloor underneath, tho latter is entitled to an action for damages against the former. If the iloor is ruinous, tho occupier must take good care that he does not put upon such ruinous floor moro than it can well bear; and, if it will not bear anything, ho ought not to put anything upon it to the prejudice of another. Where the defendant, who was the lessee and occupier of a ware- house, underlet a cellar beneatli the warehouse to the plaintiff, and the defendant m overbuithened the floor of the warehouse with merchandise that the floor gave way, and crushed the plain- tiff's wine in the cellar, it was held that the defendant was responsible for the injury, and that it was no answer to the action to say tliat the floor was ruinous, and that the defendant was not bound to repair it; "for he who takes a ruinous house ouglit to mind well what weight he puts imto it at his peril, that it be not so much that another shall take any damage by it. But, if the floor had fallen of itself, without any weight upon it, or by llio default only of the posts in the collar which sui)port it, with which the defendant had nothing to do, there the defendant shall be excused" («). Where the destruction is caused by using tho demised property in a reasonable and proper manner, no action will lie (/.). llt/e to the church, chuitccl, and r/ittrchi/ard. — Although tho freehold of the chm'cli and chancel, as well as the freehold of tho churchyard, is in the rector, whether spiritual or lay, yet the right of possession is in the incumbent, who is responsible to the ordi- nary for the celebration of divine service (/). Where there is a (/() Smart v. Mortuii, h El. & Bl. 47; 24 L. J . , Q . B . 2G0 . By the French law, " when tlie ditt'erent storicH of a house belong- to diUereut proprietors, and tlic titles* to the property do not regulate the mode oi reparation and reoonHtrnctiou, they must be made in tho foUowinjy manner: — 1 he main walls and the roof are at the charge of all the proprietors, each in proportion to the value of tho story belonging to him. The proprietor of each story makes the floor belonging thereto ; tho proprietor of tlie first story erects the staircase whicli conducts to it ; the proprietor of the second story carries the stairs from when? the former ends to his apartments; and so of the rest." Cod. Civ. liv. 2, tit. 4, art. G04. (i) Edwards v. llalindir, Poi)h. 4G. \k) Manchester Bunded Warehouse Co. v. Curr, 5 C. r. D. 507; 49 L. J., C. P. 809. (/) Sec liiiffff V. Bishop of Winchester, L. ii., ■> r. C. 22;i ; 38 L. J., 1\ C. 23. As to tho riglit to eompens:ition if tlio churcliyard is taken (lonipulsorily under an Act of Parliament, see IStihhinij v. Mttro/iolitiin limtrd of Works, L. R., 6 Q. B. 37; 40 L. J., Q. B. 1. See also Vuiiipbcll V. Mai/or, iVc, of Lirerpoo/, Li. it., 9 Ecj. 579. Jix parte Jicc/ur of Liverji<:o/, L. R., 11 E/<)• A lay rector, therefore, has no right as against the vicar to tlio possession of the churdi or chancel («). lie is, however, ;)m/f} y^/r/c, entitled to tho frocliold of tho churchyard, and to tlie trees and liorbago growing tlioro ; althougli, whoro tho vicar has had tho (enjoyment of tho pastunigo for a long period, it will bo prosunied to bo part of liis original endowment. It is questionable, however, whether such a presump- tion would extend to a perpetual curate, althcnigli for si)iritual piu-poses ho has, like Ww vicar, uncontrolled possession of tho church and cliurcliyard (o). A churcliwardon has no riglit, without a faculty, to remove portions of tho soil and tho bones of deceased pci'sons from the churchyard; and, if a monition from tho ecdesi- aslical court issues against him lo replace them, it is no answer to say lie has transferred (ho land on which tliey were placed to another (yj). The inimeniorial occupation and repair of a private chapel or chancel attached to n churcih, will entitle tho lord of a manor, by prescription, to its exclusive use, allhougli the freehold may bo in nnother, and althougli tho estate or house to which tlio chapel or cliancel is apjieiulant may not bo situate in tlio paris]i(y) ; and the immemorial repair of .siicji a chajjol in a parish chuicli, coupled with other acts of ownership, is evidence f)f a right of freo- liold in it, which may bo convoyed to a third person, and is not necessarily appendant to any liouso (/•). The rector is entitled to tho keys of tho church, although tho 436 churchwardens have a right of nccess to it at proper seasons, Tho latter cannot remove ornaments which have been illegally placed in the parish church, except under tho sanction of tho ordinary (.v). purpose of burial, or -wliic^li may ngaiii be W) used iih of rij^lit. An Order in Council, thorufdri', directing' tlio clmroli- wardnn.s to enter upon wlmt was for- merly a Imrial ground, ih invalid; aud llio parties acting under it will lie trcH- p.is.'iera. Foslir v. Jhdd, L. II., 1 (J. B. 475 ; 3 U. 07. Tho Act to amend tho laws concerning tho burial of tho dead in tho metropcilis (15 & 10 VU:t. c. 85), putting an end to the general right of Durial then^in, specially reHcrveH per- minKiou for particular individuiil.s having priviito rights to bury in tho grouud.s tvliich are tvithiu I lie jirovisions of tlio Act, provided they previously otitiiiu tho Fanolion of ono of her MajeHty's principal secrctaricH of ntato for tho time being, for tho purpoBC. Tho legis- lature, tliereforo, ha.s in a ([ualitied nuiiiner preserved these rights ; aud the interference of tho court niiiy bo ob- tttJuoJ for their protection a(!;aiiiBt tho Hftn of wrong-dooFH who week to interfere with tho gnivcH or the soil of the' burying ground. Morihiiid v. Itir/uin/xun, 22 I3cav. 5'JO; 21 Heav. 33; 20 L. J., Cli. 090. An to right of access for all jier- Bons to burial service, see 13 & 11 Vict, c. 11, s. 0. {ill) (h-ijlhi v. Jtiijhu,:., 5 ]!. & S. !)30 ; 33 L. J., Q. D. 181. [») OiiJ/iii V. J)i///ituii, mipra. (i>) (liceiisliiihy. f),ii/>i/,L. K., 3 Q. 13. 121; 37 L. J., (i. B. 137. (p) J.iUain V. (■(illhimt, L. R., 2 A. & E. 30; 30 L. J., Eec. Gas. 14. ('/) C/iiiiioii V. 7'Winii, Ti. B., 2 I'l], 034 ; 35 L. J., Ch. G'J2. Ah to the righ: to ring tho church bells, see Ihiiiiil v. Cror/m; L. 11., 2 A. & E. 41 ; 37 L. J., Ecc. Caa. 1. ()■) Chapmnii v. Ji.iim, L, R., 4 Ex. 273; 38 I,. J., H.K. 101). («) ItUchiiKji V. Vvrdnujliij, 1j. K., 3 A. &E. 113. SKCT. II.] UIGIITH or I'KOrEUTY IN LAND. 450 But thoy aro entitled to the communion plate as against the rector, in case of its conversion hy liira (/). A prescriptive right to a pew in a church, as appurtenant to an ancient messungo, may bo established by immemorial use and enjoyment, from which a faculty is presumed ; and there is no necessity that the house should bo within the parish (»). But, if the plaintiff claims a prescriptive right, and shows the com- mencement of it in very modern times, his claim will fail (.r). The rroscriptiou Act (:} it 4 "Will. 4, c. 71), s. 2, docs not apply to a claim by prescription to a pow, but, in order to establish a prescriptive right, it is necessary (o show a user more or less extended, aniinH ill 11 private oeniotcry, spo Aihhy V. Harrin, L. II., 3 G. V. 523 ; 37 L. J., M. C. 1C4. Sco tho 31 & 32 Vict. 0.47. ■I . ) 111 m^ ii 1;"! i •n ! ' '■I ill ■ii.t • ^1 460 INJUUIIOS TO ItKMITS OF rUOrEUTV. [ciIAP. VIIF. eiititlod, for tlio samo reasons, to toll the boll in tho cliapol at suoli burial {(f) . Tit/c to the sv(i-Hhorc ami bed of nan'ijdh/c n'rm. — Tho sea ih tho property of iho Crown ; and so is tho land beneath it, except such i)art of that land as is capable of bcinjj usefully occupied without prejudice to navigation, and of which a subject has (uther liad a grant from tho Crown, or which he has exclusively used for BO long a tinio as to confer on him a title by prescription (r). Tho Boa-shoro between high and low water-mark is jin'iiiu jUrif tho property of tho Crown (./'), and is extra-parochial, unless it is shown by common reputation or otherwise to form part of an adjoining parish {(j) ; and so is tho bed of a tidal river between high and low water-mark (//). Tho soil may, however, be vested in a private individual, or in tho lord of the manor, by ancient grant from tho Crown, and may form part of tho adjoining manor (/) ; and so of tho bed of a navigable river, where tho tide flows and reflows, and of all estuaries or arms of tho sea. But, wliero a right is dainu'd to the bod of a navigable river, it nmst bo subject to the common law right of navigation by the public, including that of anchorage. No anchorage diu^s, there- fore, are claimable, although they have been submitted to from tirao immemorial, unless it can be shown (and slight evidence will bo suflieient), that some service to navigation either is, or was originally, rendered in return for tho grant, or the InciiH in quo forms part of a port (/.). 438 Where a manor was held under an ancient grant from the Crown, which professed to grant the manor with wreck of tho sea, several fishery, and other rights of an extensive description, but did not expressly purport to convey " /iff us mari-s," it was bold that acts of dominion and ownership exclusively exorcised by the lord, upon tho adjoining sea-shore, between high and low water- -.n (d) liiirial Hoard of St. MaryarcCs, Jiochcstcr V. Thampson, L. R., C. P. 445; 10 L. J., C. P. 213. (c) Jiencat v. ripon, 1 Knnpp, P. C. GO, 67. (/) Hale, De Jure Maris, Har^^ravo's Law TractH, jjp. 25—37. Att.-Gcn. v. Chambers, 4 Do (i. & J. 55; 4 Do G., M. & G. 200. (c/) Iteii. V. Masmii, 8 El. & Bl. 900 ; 27 L. J.; M. C. 100. (Ii) Duke of llru/ffcwa/er^a Trustees v. Hoottc-eum-Liuacre, L. It., 2 Q. B. 4 ; 36 L. J., Q. B. 41. (i) Whitslahlc {Free Fishers of) v. Gaiiii, 11 C. B., N. 8. 387; 31 L. J., C. P. 372. Seo Maee v. Fhileox, 15 C. B., N. S. COO; 33 L. J., C. P. 124. But proof that it doos so ought to bo strictly and rigidly retjuired from all lords of manors who set up cxclusivo rights ill tho soil, in dori)jjraHim of tho frto UMO and enjoyniout of the «ca-Hhoro by the public. Whoro jmiof wan given by tho lord of the manor or ti'rritory of (Jowerof an aiioiont grant of the terra de (lou-erin tho tlnio of King John, and tho limits of tho manor, botii on tho land and tho soa-sido, wore unoertain, common reputation, modern usage, and tho oxir- oiso by tho lord of acts of dominion ovit tho sea-shoro, were admitted in ovideui'o to show tho boundary of the manor on tho sea-sido. J)uke of lleaiifurl v. Maijar, ^e., of Swansea, 3 Exch. 413. Seo Lestrange v. limee, 4 F. & F. 1018, and Jirew V. Jlaren, Ir. Rep., 9 C. L. 29. Seo Wooil on Nuisances, Chapter XIV. (k) (iaini V. Whitslalile Free Fishers, 1 1 II. L. C. 192 ; 35 L. J., C. P. 29. Whitstable F'ree Fishers V. Foreman, L. R., 2 C. P. 688 ; 3 Ibid. 578 ; 4 II. L. 20G. PECT. II.] nifiIIT8 OF PROPERTY IN LAND. 401 mark, nml ^v}licb arts wouhl have been unlawf\il without a liconco or grant from tlio Crowu, such as tlio constant and oxclusivo digging and taking away of sand, wtono, gravol, and Hca-wcod, niiglit 1)0 cullod in aid of tho giant to show that tho sca-shoro was parcel of tlio manor (/). But mero occasional acts of taking Hand, gravel, shells, or sca-wctMl from tho soa-shorc, ought not of thom- eolvofl, without proof of adverse and exclusive enjoyment on tho part of the lord, to raise any presumi)tion of a grant of tho soil from tho Crown {/ii). By a grant of tho soa-shore, tho Crown conveys not that which at the time of the grant is between high and low water-mark, but that vliich from time to time shall bo between these two fcnniiii, so that tho freehold shifts as tho sea recedes or em roaches. Tho ordiiiary Jimit of tho sea -shore is the lino of tho medium high tide between tho springs and tho neaps (n). Ditferent rights in the sea-shore may bo vested in a subject, according to the terms of tho grant. Tho king may have granted to a subject tho soil itself, or the genei'id privilege of fUi.'aig, or of laying, keeping, and taking oysters on that spot {(>). But tho grantee of the Crown must take subject to such prescriptive rights as may have been accpiirod by subjects by immemorial usage and enjoyment {]>), and to tho common law right of navigatif)u where tho grant is of the soil of a navigable river (7). A possessory title, sutlicient against a trespasser, may bo shown by persons claiming foreshore without producing evidence sufficient to displace tho Crown (/•). Tho owner of foreshore may be restrained by injunction from removing shingle therefrom to such an extent as to destroy tho natural barrier of the sea, to the injury of a neighbouring land- owner (.s). (}/ the title to lamfc uninclowd I uul adjohung the sea-shore. — All iminclosed waste land abutting on tho sea-shoro, and situate 439 above the high water-mark of ordinary spring-tides, belongs prima facie to tho owner of tho adjoining jjroperty, although it is covered v/ith beach and sea-weed, and overflowed by the waves at extraordinary spring-tides (/). D'tle to the noil of rivers and fresh-water lakes. — Tho soil of • ■» i1 4 •« ■ I (/) Calmadi/ v. Itour, G C. B. 861. Att.-nvH. V. Junes, 2 li. & C. 347; 33 L. J., Ex. 249. And an to a, tiilal rivur, see IaiviI Advucatc v. Lord liluHtyre, 4 App. CuH. 770. (w) livcttv. Wihuti, 3Bing. 115. («) Att.-Uin. V. Chambem, 4 De G., IVI. & G. 213. («) ScnitloH V. ]U-0(V)i, 4 B. & C. 497. ( p) lid. Deumau, C. J., Muijor of Cot- vhvutiv V. llrooh; 7 Q. B. 377. (v) Gaiin V. Wliitslable Free Fishers, supra. (>•) Corj). of Ifastings v. Irall, 19 Eq. 558. Sco Laird w Urir/ffs, 19Cli. D. 22. M Att.-Geii. V. Toniline, !4 Cli. U. 58 ; 40 L. J. Ch. 654. (/) Lotve V. (lovett, 3 B. & Ad. 869. Ilule, l)c Jure Maris, c. 4, p. 12. Harg. Law Tracts. As to land gaiued from the Hca, SCO Att.-Uen. v. Itees, 4 Do G. & J. 55. \ 7 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ill I.I I^D^ 12.5 Sf HA ■" IS 1^ 120 6" ^^ Photographic Sciences Corporattori 23 WIST MAIN STUET weasTiR,N.Y. usm (716)S72-4S03 4" % /.-- ' if 462 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. 11 I > » * 1 the bed of a non-navigable river belongs prmh facie to the owners of the land or of the manes on either side in severalty ad medium fihun aqum ; and on a conveyance of land bounded by a stream, half of the bed of the stream will pass to the grantee, althongh it may not actually be inclndcd in the conveyance (»). Neither, however, is entitled to use it, so as to interfere with the natural flow of the stream ; hence an encroachment by one land-ovner on his side of the stream is actionable at the suit of the other, although no special damage can be proved, if it is impossible to predicate that it will not produce seiious damage in future (r). The same principle will apply, where the complaining party is not the proprietor of the bank opposite the spot where the erection is made, but is a pro- prietor of land on the banks of the stream below the spot, but so near to it that the erection in the bed of the stream alters the natural flow of the water on the complaining party's land. But an erection in the bed of a natural stream is not illegal jicr sc, and consequently will give no right of action to a riparian owner who cannot by any possibility sustain damage from the erection (//). The soil of freshwater lakes does not belong to the Crown in right of its prerogative. Where the lake is so small, or the adjoining manor so large, that the whole lake is included in one property, it would seem that prima facie the soil of the lake belongs to the owner of the adjoining property ; but it is uncertain whether, where there are several adjoining proprietors, each is entitled usque ad filum aqucv (c). If a private individual is the owner of the soil forming the bed of a navigable lake, he will bo entitled to sue any one who erects a pier running into the lake, or to knock down the pier ; but, so long as it remains, the owners of land abutting on the lake have as against him a right to use it for the purpose of embarking and disembarking on the lake (a), and a. fortiori this is so, when the owner of the soil of the lake has himself made and maintained the pier (i). 440 In the case of two proprietor? on opposite banks of a stream, each is 2)rii)m facie entitled to fish from his own bank to the centre of the stream (c). («) Crossln/ v. Lightoidcr, L. R., 3 Eq. 279 ; 2 Ch. 478 ; 36 L. J., Ch. 584 ; and see Micklethwa'Ue v. Neiclcy liridge Co., 33 Ch. D. 133. In this country the owner of lands upon the banks of a fresh- water navigable stream takes title to the centre thereof, and has full control over the same, subject to the right of the public to navigate the same : Avcnj v. Fox, 1 Abb. (N. S.'^ 246; Commr. v. People, 5 Wend. (N. I.) 423 ; I'eiwsyl- vania v. Wheeling Bridge Co., 18 How. (U. S.) 421 ; Scott V. Wilson, 3 N. H. 321 ; Magnolia V. Marshall, 39 Miss. 109 ; Stuart V. Clark, 2 Swan (Tenn.) 9; Gray v, Bartlett, 20 Pick. (Mass.) 180 ; McCollough v. Wall, 4 Rich. (S. C.) 68 ; IlagesY. Boivman, 1 Rand. (Va.) 417. {x) Bicketl v. Morris, L. R., 1 Sc. App. 47. (y) Per Ld. Blackburn, Orr Ewing v. Colquhoiin, 2 App. Cas. 839, 853. (:;) Bristow v. Cormican, 3 App. Cas. 641. (a) Marshall v. Ulleswater Steam Xavi' gation Co., L. R., 7 Q. B. 106 ; 41 L. J., Q. B. 41. (It) Eastern Counties Bail. Co. v. Dor- ling, 5 C. B., N. S. 821 ; 28 L. J., C. P. 202. ((■) Zetland {Earl of) v. GliAcr Incor- poration of Perth, L. R., 2 Sc, Ap. 70: t SECT. II.] RIGHTS OF PROPERTY IN LAND. 4G3 Right to the soil of turxpilic voada and hiyhicai/s. — Tho soil of a turnpike road is not vested in the trustees of the road. The trustees have only the control of tho highways, tho ordinary rulo being that the landowners on either side are entitled to tho soil of tho road, uxque ad medi>uii Ji/iiin viw ; and, if a landowner owns the soil on both sides of tho road, he is entitled to tho soil of tho whole road {d). This is a presumption of law founded on the assumption that in making a road for public conveniciice, tho owners of tho land on each side of the road have contributed a portion of their land towal'ds tho formation of the road (r). But this presumption exists only in tho absence of evidence of ownership in other persons ; and it may be shown, for instance, that a street in a town belongs to the lord of the manor, and not to tho owners of the adjoining houses (/'). Where the owner of two parcels of land on either side of a highway conveys them to a purchaser, the soil of the road passes by presumption of law, although the conveyance is silent as to the existence of tho road, and although the particular measiu'ement of each parcel of land is given Avhich would exclude the road ; but this presumption may be rebutted by circumstances showing that the grantor did not intend to transfer to the grantee his light of OAvncrship in the soil of the highway. Words in an instrument of grant, as elsewhere, are to be taken in the sense which the common usage of mankind has applied to them in reference to the subject-matter of the grant ; and, if lands abutting upon a highway are described in the grant as bounded by tho highway, the right to the soil, ad medium filam vice, will be impliedly included in the grant, unless the surrounding circum- stances rebut the presumption {(/). Even where the land intended to be conveyed is described by measurement and colour, on a plan annexed to, and forming part of, the conveyance, the soil of the highway usque ad medium filum passes by tho conveyance, unless it is expressly excluded (//). 441 No legal presumption arises as to the ownership of soil in a road, where the road is defined for the first time under a newly- created authority, such as a board of commissioners for inclosing lands, acting under tho powers of an Act of Parliament («). As to an island springing up in tho channel of tho stream, seo S. ('. (rf) JMviioH V. Gil', I East, 69. Mar- qnis of Salishiiry v. Great Northern Jiail. Co., 6 C. B., N. S. '208 ; 28 L. J., 0. P. 63. Seo Wood on Nuisances, Chapter on "Highways." (c) The same presumption applies to two conterminous parishes, where tho boundary between them is a highway. Heff. V. Strand Hoard of Works, 4 B. & S. 626 ; 33 L. J., M. C. 33. (/) Beckett v. Corporation of Leeds, L. R., 7 Ch. 421. As to how far streets vest in local b; ards, seo Corerdnle v. Charltott, 4 Q. B. D. 104 ; 48 L. J., Q. B. 128. Rolls V. Vestry of St. George, 14 Ch. D. 785. (Vtmdsworth Board v. United Telephone Co., 13 Q. B. D. 904. {g) Lord v. Commissioners of Sydney, ^c., 12 Moore, P. C. 498. (A^ Berridge v. IFard, 10 C. B., N. S. 415; 30' L. J., C. P. 218. Simpson v. Bendy, 8 C. B., N. 8. 433. Bendy v. Simpson, 7 Jur., N. S. 1058. (t) It. V. Uatjield, 4 Ad. & E. 156. '^ 1 ^ ■.;fe- ■S( % ^ :»! •s ■N > 5 wjs^- 't 404 INJURIES TO RIGHTS OF rROPERTY. [ciTAr. VIII. i ! Ipfi 'A* By setting out a highway, and dedicating it to the use of the puhlic, the owner of the land over which the right of way is granted does not thereby part with the property in the soil (J). The landlord, in such a case, has full dominion and control over the land subject to the easement, and may recover it in eject- ment (/•), or bring an action for a trespass against any person who deposits stones or rubbish upon the soil, or constructs a bridge over or upon any part of the highway, or infringes in anywise upon the ordinary proprietary rights of the owner of the soil (/). Nor do the Highway Acts or the Metropolis Local Management Acts interfere with this right, or the fact that the public have appro- priated part of the highway to one kind of passage, viz., for carriages, and another part to another, e.g., to foot-passengers. FcT the reasonable use and enjoyment, therefore, of his own premises the owner may make a carriage-way across the foot- way (»?). The same rule prevails with regard to land over which any other privilege or easement has been granted to particular indi- viduals, or to the public at large, such as a stall in a market (»). The right of a man to step from his own land on to a highway is something quite different from the public right of using a highway (o). "Where there is a public highway, the owners of land adjoining thereto have a right to go upon the highway from any spot adjoining their own land. They cannot, of course, pass over the soil of others without leave ; but he who has dedicated the road to the public at large has no right to complain that a particular individual has come upon it at one spot rather than another (;>). So, where there aie two adjoining owpors having a frontage to a highway or navigable river, each has a right of convenient access from his own land to the road or river, and vice verm; and in the exercise of such right, each may for a reasonable time have carriages standing or vessels lying in front of his own premises, and even to some extent obstruct- ing his neighbour's access, where he cannot otherwise enjoy a reasonable and usual mode of access to his own land (17). 442 Of the title to icaste laud adjohiing public higlnvaijs. — Waste land extending along a public highway is presumed, in the first instance, to belong to the owner of the adjoining land, and not to the lord of the manor (/•) ; but this presumption prevails only so (J) Dovastan v. Pai/ue, 2 H. Bl. 527. Heg. V. Praii, 4 El. & Bl. 860 ; 24 L. J., M. C. 113. (k) Goodtitle v. Alio; 1 Burr. 133. \l) 3 Com. Dig. Chimin. (A. 2), 27. Lade v. Shepherd, 2 Str. 1004. Every v. Smith, 26 L. J., Ex. 345. (»») St. Mary Newington v. Jacobs, L. R., 7 Q. B. 47 ; 41 L. J., M. C. 72. (n) Mai/or of Northampton v. Ward, 1 Wils. 114. (0) Lyon V. Fishmongers'' Co., 1 App. Gas. 662 ; 46 L. J., Ch. 68. (p) St. Mary Kcwington v. Jacobs, L. R., 7 Q. B. 47 ; 41 L. J., M. G. 72. {q) Original Hartlepool Collieries Co. v. Gibbs, 5 Gh. D. 713 ; 46 L. J., Gh. 311. {)■) Doe V. Fearsey, 7 B. & C. 307. I SECT. II.] RIGHTS OP PROPERTY IN LAND. 40.5 \ long as proof to the contrary is wanting (s). But the soil of high- ways within the district of an urban authority is, by the 38 & 39 Vict. c. 55, s. 149, vested in such authority to such an extent as to entitle them to demise the right of pasturage by the side of the highways {f). In remote and ancient times, when roads were frequently made through uninclosed lands, and when the same labour and expense were not employed upon roads, and they were not formed with that exactness which the exigencies of society now require, it was part of the law, that the public, where the road was out of repair, might pass along the land by the side of the road. This right on the part of the public was attended with this conse- quence — that, although the pai'ishioners were bound to the repair of the road, yet, if an owner excluded the public from using the adjoining land, he cast upon himself the onus of repairing the road. If the same person was the owner of the land on both sides, and inclosed both sides, he was bound to repair the whole of the road ; if he inclosed on one side only, the other being left open, he was bound to repair to the middle of the road ; and where there was an ancient inclosure on one side, and the owner of lands inclosed on the other, he was bound to repair the whole. Hence it followed, as a natural consequence, that, when a person inclosed his land from the road, he did not make his fence close to the road, but left nn open space at the side of the road, to be used by the public when occasion required. This appears to be the most natural and satisfactory mode of explaining the frequency of waste left at the sides of roads : the object was to leave a sufficiency of land for passage by the side of the road when it was out of repair («). But the ordinary presumption, that a narrow strip of land lying between the highway and the adjoining close belongs to the owner of the close, is either done away with or considerably narrowed, if the narrow strip is contiguous to, or communicates with, open commons or large portions of land ; for the evidence of owner- ship which applies to the large portions, applies also to the narrow strip which communicates with them (v). Bight to the soil of accommodation-tcays andjmrate roads. — This depends upon the history of the premises and the evidence of acts 443 of ownership over the soil of the road. If nothing else ap- pears than the existence of a private way running between the lands of two adjoining proprietors, the jury may presmne that the soil belongs half to the one and half to the other. But that presump- tion may be rebutted by evidence showing acts of ownership on the 273. (i<) Steel v. Prickett, 2 Stark. 469. Headlam v. Hedlcy, Holt, N. P. C, 462. Doe V. Kemp, 2 Bing. N. C. 102. [v) Oroie y. West, 7 Taunt. 42. («) Doe V. Hampson, 4 C. B, Dendy v. Simpson, 18 C. B. 831. (t) Coverdale v. Charlton, 4 Q. B. D. 104 ; 48 L. J., Q. B. 128 ; ante, p. 440, note (/). A. H H 4()G INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. il r • * « c r: Zl'!- 'A » 1' ^ f. 1 part of ono only of such adjoining proprietors {x), or by proof of a reservation of the soil of the road by a grantor under whom the landowners on either side of the road claim title (y). Right to the soil of totcing-paths and the banks of rivers ami canals. — Navigation companies authorised by statute to set out towing-paths, first giving satisfaction to the owners and proprietors of lands made use of for the purpose, do not, by forming a towing-patli and giving satisfaction to the owner of the land over which the path is formed, acquire more than a right of way for towing, in the nature of a servitude or easemeut. Statutory powers of this sort do not enable them to acquire the soil itself. Landowners, therefore, whose lands abut upon a navigable river or canal, along which a towing path extends, have a right to form wharfs on the soil of the towing-path, and to cross the towing- path wherever they please, for the purpose of loading aad un- loading vessels, provided they do not interfere with the right of way along the towing-path (z) . Acts of ownership on the part of the proprietors of a navigation company, exercised over the banks of a navigable river, afford no evidence of the ownership of the soil of such banks being vested in the proprietors of the navigation company. If the Act of Parliament under which the company are incorporated gives the company no power to purchase land, that is against their claim to be proprietors of the soil (a). Eight ofpro2)erf>/ in houndary-icalls and fences (h). — Evidence of a common user by two adjoining proprietors of a boundary- wall separating their two estates justifies the presumption, either that the wall was originally built on land belonging in undivided moieties to the owners of the respective premises, and at their joint expense, or that it had been agreed between them that the wall, and the land on which it stood, should be considered the property of both as tenants-in-common, so as to insure to each a continuance 444 of the use of the wall (c). " When a wall is common property, it may happen, either that a moiety of the land on which it is built may be one man's, and the other moiety another's, or the land may belong to the two persons in undivided moieties." But, ** when- i ix) Holmes v. BeUingham, 7 C. B., N. S. 388 ; 29 L. J., M. C. 132. (y) Tottenham v. Byrne, 12 Ir. C. L. R. 388. Iz) Badger v. South Yorkshire Rail. Co., 1 El. & El. 347 ; 28 L. J., Q. B. 120. Monmouth Canal and Bail. Co. v. Hill, 4 H. & N. 427. A similar view has been taken with respect to commisMoners of sewers. Stracey v. Nelson, 12 M. & W. 535. (a) Hollis V. Goldfinch, 1 B. & C. 205. Lea Conservancy Board v. Button, 12 Oh. D. 383. Even where there is a power to purchase, if the Acts may be carried into effect without purchasing, the burden of proof is on the conservators to show that thoy have purchascnl. lea Conservancy Board v. Button, 6 App. Gas. 685. (b) As to an overhanging cornice, see Whittaker v. Jackson, 2 H. & C. 926 ; 33 L. J., Ex. 181. (c) Wiltshire v. Sidford, 8 B. & C. 259 n. SECT. 11.] RIGHTS OF PROPERTY IN LAND. 407 ever the land on which a boundary-wall is intended to bo buili belongs on one side to one party, and on the other to the other party, and they between them agree to build the wall, it would be prudent," observes Bayley, J., " to make this bargain, that so long as there was to be a wall continuing on the property, the land on which it was built, and the wall which stood upon that land, should be taken to be the common property of the two, and that the owners of the estates on each side should be tenants-in-common in undivided moieties of that land and of the wall, with the power of adopting such remedies for partition as tenauts-in-common may adopt ; for, if the wall stood partly on one man's land, and partly on another's, either party would have a right to pare away the wall on his side, so as to weaken the wall on the other, and to produce a destruction of that which ought to be the common property of the two " {(I). If one adjoining owner erects a boundary- wall, which also forms the external wall of the house of his neighbour, and places an inscription on it stating that it is his wall, the owner of the house will not obtain a title to such wall by adverse possession, although no rent or acknowledg- ment has been paid for it for many years {c). A wall may be a party -wall up to part of its height, and may be an external wall, and the separate property of one of the owners, for the rest of its height (/). The ordinary meaning of the term party- wall, is a wall of which two adjoining owners are tenants-in-common {(/). In general, where a boundary- wall is built at the joint expense of adjoining proprietors under the provisions of a Building Act, so that half the thickness of the wall stands on the ground of each proprietor, the two proprietors are not tenants-in-common of the wall, but each is entitled to the ordinary remedy for any injury done to the part of the wall which stands on his own land (/«). 445 Ownership of ditches and hedges. — "The rule," observes Law- rence, J., ** about ditching is this. No man making a ditch can cut into his neighbour's soil, but usually he cuts it to the very extremity of his own land ; he is, of course, bound to throw the soil which he digs out upon his own land, and often, if he likes it, ^ (rf) Cubitt V. Porter, 8 B. & C. 257. (e) I'/iillipson v. Gibbon, L. R., 6 Ch. 428 ; 40 L. J., Ch. 406. It appeared, in this case, that the owner of the house had himself rebuilt the wall more than thirty years before the commence- ment of the suit, but had replaced the inscription. (/) Weston V. Arnold, L. R., 8 Ch. 1084 ; 43 L. J., Ch. 123. {y) If'atsoH V. Grai/, 14 Ch. D. 192 ; 49 L. J., Ch. 243. (/() Matts v.- Hawkins, 5 Taunt. 22. In the metropolis, party- walls are reijulated by the Building Act, 18 & 19 Vict. c. 122. See Hunt v. Harris, 19 C. B., N. S. 13 ; 34. L. J., C. P. 249. Kniffht V. Pursell, 11 Ch. D. 412; 48 L. J., Ch. 396. V: ■0 • r: J " K 468 IN.TURIFS TO RianTS OP PROPERTY. [CTTAP. VITT. ho plants a lioelgo on tlio top of it ; tlioreforo, if ho afterwards cuts beyond the edge of the ditch, which is the extremity of his land, he cuts into his neighbour's land, and is a trespasser ; no rule about four feet and eight feet has anything to do with it"(/). A boundary-hedge, separating one estate from another, belongs, in general, to the occupier who has been in the habit of cutting and repairing the hedge. Proof of the exercise of acts of ownership over the hedge is prhmi facie evidence of the property in the hedge being in the person who has exercised such acts. In some instances, the adjoining owners are tenants-in-common of the hedge separat- ing their respective properties, so that each has a right to clip the hedge, but not to grub it up (,/). ll'Kjht of propcrfj/ in trees and hmhcs. — According to the old authoritio?, the general property in trees is in the landlord, and the general property in bushes is in the tenant, although, if the tenant exceeds his right — as by grubbing up or destroying fences — he may be liable to an action of waste. The tenant has the general property in the cuttings of a hedge, whoever cuts it {k). The maxim " quicquid phodatur solo, solo cedit " applies to trees, 80 that if trees be blown down they belong to the personalty, if practically severed, but to the inheritance, if not severed {I). Ownership of trees standing in boundary hedges. — In an old case, it is said that, " if a tree grows in a hedge which divides the land of A and li, and by the roots takes nourishment in the land of A and also of B, they are tenants-in-common of the tree ; and so it was adjudged" (/«). But this must be imderstood of fences of 446 which the adjoining owners are also tenants-in-common ; for the general rule is, that the ownership of the tree follows the owner- ship of the hedge ; and the tree will be held to belong to the party on whose land the trunk stands, without reference to the direction of the roots. (.) VowUs V. Miller, 3 Taunt. 137. \j) Voi/ce \. Voi/cc, Go^ 201. By the French law, all ditcheb between two estates are premimed common, if there is no title or proof to the contrary. But it is proof that a ditch is not common, when the bank or earth thrown up is found only on one side of the ditch. The ditch, in such a cuso, is deemed to belong ex- clusively to him on whose side the earth is found to be thrown up. Every hedge ■which scpaivitos two estates is reputed common to both, unless tlioro is only one of the estates in an inclosed condition, or unless there are vouchers or sufficient possession to prove the contrary. Cod. Nap. liv. 2, Nos. 6G6— 672. (k) Berriman v. Feacock, 9 Bing. 384. (/) Swinhirn v. Avislie, 30 Ch. D. 485. See also Harrison v. Harrison, 28 Ch. D, 220; 54 L. J., Ch. 517. (Hi) Anon., 2 Rolle Rep. 255. JFaUr- man v. Soper, 1 Ld. Raym. 737. Holder V. Coates, M. & M. 112. Aa to trees overhanging railways, see the 31 & 32 Vict. c. 119, 8. 24. By the French law, "Trees which are found in a common hedge are common like the hedge ; each of the two proprietors has the right to require that they should be felled ; " and " he whose property is overshadowed by the branches of his neighbour's trees may compel the latter to cut off such branches. If it is the roots which encroach on his estate, he has a right to cut them therein himself." Cod. Civ. art. 672, 673. I I - 1 CHAPTER VIII. SECTION III. INJURIES TO RIGHTS OF IMIOPERTY IN CHATTELS. Rightu of property in chatlch. — The title to goods and chattels does not rest upon title-deeds, nor, in general, upon documentary evidence, but is founded, priiini /(trie, upon visible possession and apparent ownersliip {n). Acquisition of riyhta— Title liif fimling. — The finder of a lost article is entitled to the possession of it as against all persons except the real owner. "Whore a cliimnoy-sweeper's boy found a jewel, and carried it to a goldsmith's shop to know what it was worth, and delivered it into the hands of the goldsmith's apprentice, who, inider the pretence of weighing it, took out the stone, and offered the boy three-halfpence for it, which the boy refused, and insisted upon having the jewel back, whereupon the apprentice delivered him the socket without the stone, and an action was brought agaijist the master for a conversion of the jewel, it was ruled " that the finder of a chattel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and, consequently, may maintain an action for the conversion of it" (o). Where the plaintiff, on leaving the defendant's shop, picked up a small parcel AAhich was lying on the shop-floor, and showed it to the shopman, and the parcel, on being opened, was found to contain bank-notes, and the plaintiff requested the defendant to keep the notes, and deliver them to the owner, and 447 the defendant advertised for the owner, and after the lapse of three years, no owner appearing to claim them, the plaintiff applied to the defendant for the notes, offering to pay the expenses of the advertisements, and to indemnify the defendant against any claim in respect of the notes, and the defendant refused to deliver them up, it was held that the plaintiff was entitled to recover («) Iliern v. Milh, 13 Ves. 122 ; 2 T. R. 589, 750. By the French Code (art. 2279), the mere possession of movables is equivalent to title in all cases excepting where property has been lost or stolen ; and, as regards lost or stolen property, it is provided (art. 2280) that the party who has lost anything, or from whom it has been stolen, may reclaim it within three yeors from the party in whose hands he finds it, saving to the latter his remedy over against the person from whom he obtained it ; but, if the actual possessor of the thing stolen or lost has purchased it in a fair or market, or at a public sale, or from a merchant who sells similar articles, the original proprietor can only procure it to be restored to him on re- paying to the possessor the price which it cost him. Possession of personal pro- perty is prima facie evidence of owner- ship : Wood's Practice Evidence, p. 66G. {(>) Armonj v. De/ainirie, 1 Str. 505. But the property must have been found in such a situation as to indicate that it was lost, and not voluntarily placed by the owner where it was found : Mnvoij V. Mtilma, 11 Allen (Mass.) 14S ; Bian- di'H V. Ilaiitsvilk Bank, 1 Stew. (Ala.) 320 ; Clark V. Maloiii/, 3 Har. (Del.) 68 ; Mai- thews V. Jrarsell, 1 E. D. S. (N. Y.) 393; McLaughlin v. mdU; C Cow. (X. Y.) 570. 's H I . r:: 470 INJURIES TO RIGHTS OF TROPERTY. [ciTAP. VIII. them, or the value of them, and that the oircumstanco of tlie notes being found by the plaintiff inside the defendant's shop, in tho defendant's own house, did not give tho defendant any right to detain them as against the plaintiff, who found tliem there (y>). But, as the title by finding depends on possession, if the possession of the tinder is rightly divested, liis title is gone, and ho eannot maintain an action for a subsequent dealing with tho property by a third person (•). If a verbal gift has been made of a piece of plate, or other valuable chattel, to a person to whom it has provioiisly been delivered to be kept, the verbal gift, unaccompanied by any transfer of possession, cannot, it has been held, transfer any property in the chattel to the donee. There must bo either an actual, manual delivery, if the chattel is capable of manual occupation and delivery, or a constructive delivery, if the article is bulky and incapable of manual transfer ; or there must be a deed of gift under seal, in order to clothe the donee with the ownership and right of posses- sion of the chattel (//). Where a testator, two years before his death, gave some railway debentures to the defendant, intending to transfer to him the money secured by them, and delivered the debentures to the defendant, who took possession of them, and locked them up in his own desk, but no transfer of the debts secured by the debentures was ever made, in accordance with the Act of Parliament regulating the transfer of such securities, and after the testator's death his executors sued the defendant for detaining the debentures, it was held that they were not entitled to recover them (2). Where a policy of insurance had been given by the intestate to his mother, and was retained by her, it was held that, although there had been no assignment of the policy, and although the right to the money secui-ed by it might not be affected, there was a valid gift of the document itself as against the administrator («). A gift by a patient to a physician may be voidable, yet, if after the relation between the parties has ceased to exist, the donor intentionally elects to abide by the gift, it cannot be impeached after his death (b). A gift by an infant to a relative, there being no undue influence, within a month before her death, has been held valid {<•) . Donatio mortis eansd. — The delivery by a donor, in his last ^5 % c '■^/ ^ f. •s •s •> ■s 4 ■* > ') J ) {x) inily. Wihon, L. R., 8 Ch. 888; 42 L. J., Ch. 817. (y) Irons v. SniaHpuee, 2 B. & Aid. 551. Sfiouer v. I'ilc/i, 4 Exch. 478. {z) Barton v. Guiner, 3 II. & N. 389 ; 27 L. J., Ex. 390. Kehack v. XichoUun, Cro. Eliz. 496. [a) Itiimmena v. Hare, 1 Ex. D. 169. In order to grive validity to a gift, tlicro must be an effectual delivery. Thus, if a note, bill, bond or other obligfatiou for the payment of money which is puyabL- to the donor or his order is g^ven by one to another, merely giving sucli obliga- tion to the doaeo would not rcTider the gift operative, because, in order to enable the donee to recover upon the same, it must be indorsed by the donor, and until that is done an effectual delivery has not been made. (A) Mitchell V. Homfratj, 8 Q. B. D. 587; 60 L. J., Q. B. 400. («•) Taylor v. Johnnton, 19 Ch. D. 603 ; 51 L. J., Ch. 879. :v*.. 172 INJUIMKS TO RKJIITM OF PROlMUtTY. [("TAP. VIIT. '■■I I. r. illnoHH, of a dc'pnslt noto will constitute a good ilomtio moi'tis 449 caKKil {(I) ; and so will tlmt of a bill of oxchango (r) ; but the delivery of a clioquo on tho donor's bankers payable to bearer 'vill not ( /'), oven wlion it is aeoonipanied by a delivery of bis banker's I)art8 book (ij), unless it is presented for payment or paid before the deatli of tbo donor (,/'). Hut, if tbe eliequo is payable to order, and has been paid away for valuable consideration or in discharge of a debt of tho donee, or if it bo tho chefiuo of another i)arty, tho gift will bo valid (//). Railway stock cannot be the subject of a (hnafio niortiii rdiisd (/). PiirchtiKe. — At common law tho purchaHor of a chattel, as a general rule, takes the chattel with such a title only as tlio vendor had, miless ho purchases in market overt. But, if the title of the vendor ia voidable only, ho can confer a good title on an innocent purchaser for valuable consideration who becomes such before tho vendor's title has been avoided (/.) . If, however, A obtains goods on credit by representing himself to bo B, and the vendor parts with tho goods in tho belief that ho ia dealing with H, A obtains no i)roperty Avhatover in the goods, and cannot transfer any title to a purchaser from him (/) . Sftk in market overt. — At common law tho right of property in things sold is changed i)ermanently by a sale in market overt («<), so that, whoever buys goods and. chattels in the open, public, legally constituted market, acquires an indefeasible title to the chattels so purchasi.d, unless he buys with knowledge of an in- firmity of title on the part of his vendor. Things purchased at shops in the city of London in the ordinary way of trade have always been considered to have been bought in market overt, so as to exempt the pm'chasor from the obligation of inquiring into the title of tho shopkeeper to tho goods he sold («)• But shops in country towns, although openly and notoriously used as public places of purchase and sale accessible to all comers, are not markets overt for the sale of the goods and commodities ordinarily sold or exposed for sale therein (o). (rf) Amis V. Witt, 33 Bcav. 619. Moore v. Moore, L. R., 18 Eq. 474 ; 43 L. J., Ch. 617. («) Miinkin v. Wegueliii, 27 Beav. 309. Veal V. Veal, 27 Beav. 303. (/■) Hewitt \. Kaije, L. K., 6Eq. 198 ; 37 L. J., Ch. 633. (//) In re lieak's estate, L. R., 13 Eq. 489; 41 L. J., Ch. 470. (A) Molls V. I'earee, 5 Ch. D. 730. Clement v. Cheeseman, 27 Ch. D. 631 ; 54 L. J., Ch. 158. (i) Moore v. Moore, L. R., 18 Eq. 474 ; 43 L. J., Ch. 617. (k) Attenborough r. St. Katharinti' s Bock Co., 3 C. P. D. 450 ; 47 L. J., C. P. 763. (/) Cnmli/ V. Lindsai/, 3 App. Cas. 459; 47 L. J., Q. B. 481. («i) See Crane v. London Dock Co., 5 B. &S. 313; 33L.J.,Q. B. 224. Asto the sale of a ship formerly engaged in acts of piracy, or of goods taken by pirates, see Heg. v. M^Clcverty, L. R., 3 P. C. 673. («) Godb. 131, pi. 148; 5 Co. 83 b. Lyons v. Be Pass, 1 1 Ad. & E. 326. (o) Prior of Dunstable^ case, 11 Hen. 6, 19, p|l. 13; 25 pi. 2; 2 Brownl. 288. Harris v. Shaw, Cas. temp. Hardw. 349. SKCT. III.] niOltTS OF rifOPKIlTY IN CHATTKLS. 47;i 450 A wharf in tho city of liondoii is not a market ovort like a Bhop (p) ; and a shop in Ijondou is not a market overt 'or tho sale of any otlior commodities thaa those whicli are customarily boiignt and sold therein (y) ; and tho distinction must be observed between a sale over tlio counter to a customer of things exposed in a shop for sab', and a sale to the shojtkcepor himsi>lf of things bouglit by him to bo added to his stock-in-trade. Tho ono may be a sale in market overt, but not so tho other. If a servant, for example, steals his master's books, and goes and sells them to a bookseller in tho city of London, tho sale to tho bookseller is not a sale in market overt, and the bookseller will acipiire no right to the books as against tho true owner from whom they have boon stolen (/•) ; but if, after tho books have been added to the book- seller's stock-in-trade, and exposed for sale in his shop in tho city, they are purchased bona fide by a customer in tho ordinary way of ti'ade, tho purc]ias(! will be a purchase in market overt, which will change tho ownership and give tho purchaser a title to tho books, defeasible only on the co . Iction of the thief. So, if the hirer of household furniture takes it to a furniture-broker, ond sells it, and receives the money, the sale does not alter tho ownership, or give the broker any right to detain the furniture from the owner who has let it out on hire (s) ; but, if the furni- ture is brought into a furniture-broker's shop in the city and exposed for sale, and is then bought by a customer in the ordinary ■way of trade, tho right of property is altered, and the owner cannot follow the subject-matter of the sale into the hands of such second purchaser. His remedy is either against the party to ■whom he let out the goods, and who is responsible for the breach of trust (/), or against the furniture-broker who bought from him (h). The goods, moreover, must be corporeally present in the shop of the vendor at the time of the sale, so that a sale by sample, or a sale of goods to be afterwards manufactured and sent from the manufactory to the residence of the purchaser 5 "1 Anon., 12 Mod. 5'21. Lee \. Hayes, 18 C. B. 601. Our Saxon ancestors were j^reatly opposed to all private and Bccret transfers of property. By the laws of Athelstan all persons were absolutely prohibited from buying and selling goods out of the open, public market ; and by the ordinances of other Saxon kings no bargain and sale or exchange of goods and chattels was allowed to bo valid, unless it was made publicly at a fair or market, or in tho presence of two or more credible witnesses. Ancient Laws and Institutes of England, 14, 16,87, 90, 116, 117, UO, ed. 1840. The Mirror, c. 1, 8. 3; 2 Jnstit. 220. Mosley v. Wnlker, 7 B. & C. 54 ; 9 D. & R. 863. Maiioi; S,e. of Maeckafldiv. Chapman, 12 M. & W. 18. {p) inikiiison V. King, 2 Campb. 33.5. (7) Taylor v. Chambers, Cro. Jac. 'S. The Bishop of Jf'oreester's ease, F. Moore, 360. Clifton v. Chaiieellor, ib. 624; .5 Co. 83 b. (*■) White v. Spettigtte, 13 M. & W. 603. Crane v. London Dock Co., 5 B. & S. 313; 33 L. J., Q. B. 224. (*) Cooper V. Willomat, 1 C. B. 672. Loeschman v. Maehin, 2 Stark. 311. (0 18 Ed. 4, 23, pi. 0. 6 Hen. 7, 15, pi. 5. («) Peer v. ILumphrfij, 2 Ad. & E. 495. ■4 471 INJURIES TO RIGHTS OF PROPERTY. [CIIAP. VIII. It Mi » >' I .«.»,< 461 without ever having been in the shop, is not a sale in market overt (d-). Sale 0/ stolen goods, Sfc, in market overt — Eiffht of restitution. — At common law the ownership or right of property in goods sold in market overt was changed permanently by the sale, and the purchaser acquired an indefeasible title- against all the world ; but, formerly, by the 21 Hen. 8, c. ] 1, and the 7 & 8 Geo. 4, c. 29, and now by the 24 & 25 Yict. c, 96, s. 100, where chattels have been stolen, on conviction of tlie thief the original owner from whom they were stolen is entitled to maintain an action against the purchaser for the goods, or the value of them, without obtaining an order of restitution (y). The section only applies to those cases where merely the possession of the goods, but not the property, hp.s been parted with ; so that where the goods have been obtained by fraud or false pretences, that is, where the property has pa^jsed from the prosecutor, ha cannot re-claim the goods after conviction of the fraudulent person (r). The statutes 2 & 3 Ph. & M. c. 7, and 31 Eliz, c. 12, provide for the sale of horses in markets and fairs, and impose sundry good ordinances touching the manner of selling and tolling horses for the purpose of re- pressing or avoiding horse-stealing. TL<)y prevent the property in any stolen horse from being altered by sale in market overt until six months have elapsed from the time of the sale, and enable the o^vnei at any time afterwards to recover the horse on payment of the price to the purchaser. Ihe names and addrebses of all the parties to contracts for the sale of horses are to be entered in the toll-gatherer's bc^k, together with the price of the horse, its colour, marks, &c. ; and, if the requisites of the Acts, as regards these and other particulars, are not complied with, the sale is void («). During the interval between the commission of the felony and the conviction the purchaser has a prima facie title, liable to be defeated by the conviction (b) ; and persons who purchase during that period, and have the good fortune to sell again before the conviction, cannot be subjected to an action for taking or con- verting the stolen property. Thus, where the plaintiff, who had been robbed of some sheep, and was prosecating the thief, gave notice of the robbery to the defendant, who had purchased the sheep in market overt, not knowing them to have been stolen, and (x) Crane v. London Bock Co., 5 B. & S. 313 ; 33 L. J., Q. B. 224. Hill v. Smith, 4 Taunt. 520. (y) Scattcrgood v. Sylvester, 15 Q. B. 610 ; 19 L. J., Q. B. 447. And see the 30 & 31 Vict. c. 35, s. 9. (2) Moycey. Newington, 4 Q. B. D. 32; 48 L. J., Q. B. 125. IJndsag v. Cimdg, 1 Q. B. D. 348 ; reversed on another point, '■. Q. B. D. 96, and 3 App. Cas. 459: 45 L. J., Q. B. 381. fa) Oibbs^ case, Owen, 27. (A) Pf-er V. Humphrey, 2 Ad. & E. 495. SECT. III.] RIGHTS' OP PROPERTY IN CHATTELS. 475 452 required the defendant to deliver up the sheep to him, which the defendant refused to do, and sold the sheep again before the conviction of the felon, it was held that the defendant was not responsible for a conversion. " The plaintiff," observes Buller, J., " could not demand the sheep of the defendant, merely because they had been stolen from him ; for it was not then certain that the felony would be followed by a conviction of the offender. The plaintiff must prove that the sheep were his property, and that, while they were so, they came into the defendant's possession, who converted them to his use. But here the plaintiff's property did not re-vest in him till after the conviction of the felon ; and from the time of the conviction the defendant has never had possession of the sheep " (c). On the other hand, the purchaser cannot claim from the original owner the cost of the keep of the cattle while they were in his possession, and before the conviction of the thief ; for they were his own property, until, on the conviction, the property revested in the original owner (d). Private sale. — A person who buys goods by private contract, and not by public sale in market overt acquires no better title than that possessed by his immediate vendor. He may purchase a horse, or he may buy merchandise or furniture in the ordinary way of trade from a party in possession thereof ; but. if the vendor was not the owner, and had no authority from the owner to sell, the purchaser will have no title whatever to the property he has bought as against the true owner (e), unless the vendor was a factor or agent for the sale of goods as presently mentioned (/). If he puichases, at a sheriff's sale or a pawnbroker's auction, property which the sheriff or the pawnbroker bad no right to sell, he acquires no title as against the true owner of such property {g). Whenever, therefore, a pui-chaser buys of the servant or agent of the owner out of market overt, he takes the risk of the servant's having sold without authority ; and, if the servant had no autho- rity to sell, the purchaser must give up the subject-matter of the sale on demand to the master (A). A purchase out of market overt of property which has been stolen does not convey any right of property in the thing sold to the purchaser, although he may have purchased bond fide for a ' :\% (c) Hot-wood V. Smith, 2 T. R. 756. Crimsoi V. Woodfall, 2 C. & P. 41. (rf) JFa'i^e} •/. Matthews, 8 Q. B, D. 109; 61 L. J., Q. B. 243. {e) Loeschman v. Maehin, 2 Stark. :ill. Coopor V. Willomat, 1 C. B. 672. Dyer V. Pearson, 3 B. & C. 38; 4 D. & R. 648. (/) Post, p. 473 ct seq. (g) Farrant v. , 3 Stark. 130. Chapman v. Speller, 14 Q. B. 621 ; 19 L. J., Q. B. 239. Morleyy. Attenborough, 3 Exoh. 500. (A) Metcalfe v. Zumsden, 1 C. & K. 309. '^'?»!TT»i«;i*nT5WT!"iTO»;3W'^A"vi'T»"W!^^ 47G INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. r: . I ■: t:; 453 valuable consideration, and without notice of the felony, A person, therefore, who has been robbed may follow the stolen property, and is entitled to recover it from bond fide purchasers who have not bought it in the open, public market, although the thief has not been convicted of the felony. In like manner, if the property has been pledged with a pawnbroker or any other person, he may sue the pawnbroker or other pledgee, for detaining or converting tlio property, although he has not prosecuted the thief, nor taken any steps to put the criminal law in motion (/). It is said to be a general rule of the common law that a vendee out of market overt cannot acquire a better title than his vendor. There are, however, some important exceptions to this rule. Where, for example, a man obtains possession of goods through the medium of a pretended contract of sale, buying the goods and paying for them by a cheque on a bank whore he has no funds, or by a fictitious bill of exchange, he himself has no title to the goods after they have been demanded back by the vendor ; but, if he re-sells them and delivers them into the hands of a houa Jido purchaser before the vendor interferes to recover possession of them, the title of such houd fide purchaser cannot be defeated (/.). If, however, the party selling the goods obtained merely the possession of them through the medium of false pretences, and not a defeasible property in them by virtue of a contract of sale, the purchaser will have no title to the goods as against the true owner (/). Where the plaintifFs had sold a quantity of tartaric acid, to be delivered to the order of tlieir purchaser, and one Anderson came to the plaintiffs and represented liimself to be a sub-purchaser of the acid, and upon the strength of such repre- sentation obtained a delivery-order from the plaintiffs, and got possession of the acid, and pledged it with the defendants, it was held that the defendants could make no title to the acid through Anderson, who had obtained the transfer of the acid to himself without authority and by false pretences, and that mere possession of chattels, with no further indicia of title than a delivery-order, is not sufficient to entitle a bom fide pawnee of the person fraudu- lently obtaining possession from the true owner to resist the claim of the latter in an action for a conversion of the property {in). If several joint owners of goods and chattels permit one of them alone to have the possession of the joint property, and tiie J 2 1 J * (i) White V. Spettiguc, 13 M. & W. 608. Lee V. Jiayes, 18 C. B. 599. S. C, nom. Lee v. Hobinsoi;, 25 L. J., C P. 249. Stone \. Marsh, (i'B. &C. bb\. {k) Whit.' V. Gardtu, 10 C; B. 919 ; 20 L. J., C. P. 167. Pease v. Gloahee, The Marie Joseph. L. R., 1 P. C. 219; 35 L. J., P. C. 66. (/) Kingsford v. Mervij, 1 H. & N. lilS ; 26 L. J., Ex. 83. See Lindsay v. Cutidy, ante, p. 451, and Hardman v. Bootii, post, p. 477. (»m) Kiitgsford v. Merry, supra. I ^^^ SECT. III.] RIGHTS OF PUOPEUTY IN CHATTELS. 477 454 one so trusted with the possession sells to a bond fide purchaser, the latter will acquire a good title as against them all («). If, too, the owner of goods has intrusted another with the possession of them, or with documentary evidence of title to them, for purposes of sale, and the party so intrusted has sold contrary to the express directions of the owner, tlie purchaser will neverthe- less acquire a complete and perfect title by the sale (o). If the owner of goods stands by and voluntarily allows another to deal with the goods as if he were the owner, and thereby induces some third party to purchase them, he cannot afterwards, though he acted under a mistake, claim them from such third party (;>). But he may, in general, claim the price of them, if such price has not previously been paid over to the immediate vendor and apparent owner (y). If goods are deposited in the hands of a warehouseman or wharfinger, and the owner sells them and hands to the purchaser a delivery order or dock-warrant for their delivery, which is accepted by such warehouseman or wharfinger, and the purchaser then re-sells the goods, the original vendor cannot prevent the deliver^" of the goods to the sub-purchaser, although the first purchaser has become bankrupt, without paying the price (r). Having been a party to the creation of the title of the sub-vendor, he is bound by the re-sale. Whenever by a contract of sale, made either by the plaintiff in person, or through the medium of his agent, both the right of pro- perty in and the right of possession of the thing sold have passed to the plaintifF, he is entitled to maintain an action for the unlaw- ful taking, detaining, or converting of the thing which has thus become his own property. Where the plaintiff commissioned her brother to buy a cow for her when he should meet one which he thought would suit her, and the brother bought a cow, and, as it was being driven home, and before the plaintiff knew of or had assented to the purchase, the cow was seized by a creditor of the brother, it was held that the plaintiff was entitled to maintain an action of trespass for the seizure of the cow (s). By the common law the right of property in, and the title to, goods and chattels may be transferred to a purchaser by a contract of sale, without any delivery of the goods or payment of the price, 'A i ■s ll («) Morgan v. Marquis, 9 Exch. 145 ; 23 L. J., Ex. 21. (o) Post, p. 476 et seq. \p) Pickering v. Busk, 15 East, 43. Gregg v. Wells, 10 Ad. &E. 90. Waller V. Drakeford, 1 El. & Bl. 749 ; 22 L. J., Q. B. 276. (}) Dickenson v. Naul, 4 B. & Ad. 638. Allen v. Hopkins, 13 M. & W. 94. As to intrusting documents of title to factors and agents, see post, p. 476 et seq. (r) Hawes v. Watson, 2 B. & C. 540 ; 4 D. & R. 22. WoodUy v. Coventry, 2 H. &C. 164; 32 L. J., Ex. 185. Knights V. Wiffen, L. R., 6 Q. B. 660 ; 40 L. J., Q. B. 51. (») Tkomas v. Philips, 7 C. & P. 673. Payne v. Brander, 2 Sta^k. 668. 478 INJURIES TO EIGHTS OF PROPERTY. [CHAP. VIII. |!tl, II- : 3- . • ( « i p-j.- :■ ' Of* 455 BO that, after the bargain has been concluded, the goods may become the property of the buyer, although they still continue in the possession of the vendor ; and if the vendor sells them again by sale not in market overt, and actually delivers them to a second bond fide purchaser who pays him the price, yet the latter will have no title to the goods as against the first purchaser, although the first purchaser by leaving the goods in the hands of the vendor enabled him to commit the fraud {t). A contract for the sale of goods, wares, and merchandise, duly authenticated in the mode required by the Statute of Frauds, or of the value of less than 10/., and so not requiring authentica- tion by a signed writing, may operate as a direct transfer of the ownership and right of property in the thing sold to the pur- chaser, or may amount only to an agreement for a future transfer, giving the purchaser a right of action against the vendor for a breach of contract, but not effecting any alteration of ownership. When the bargain operates as a transfer of ownership, the sale is perfect and complete ; when it amounts only to an agreement to procure or manufacture an article of a given character or description, and then transfer it to the purchaser, and does not effect any immediate alteration of ownership, the sale is imperfect and incomplete. To constitute a perfect and complete sale, the precise thing sold must be ascertained and identified, except where the sale is of shares and undivided quantities expressly sold as such, and the price must, in general, be ascertained and fixed. Personal engagements may subsist between the parties ; but there can be no transfer of ownership, until such ascertainment and identification have been accomplished, unless there appears a clear intention of the parties to the contrary (ii). Private sale — Insolvency of the purchaser. — When the purchaser becomes insolvent before the contract for sale has been completely performed, the seller, notwithstanding he may have agreed to give credit for the goods, is, under certain circumstances, not bound to deliver any more goods under the contract until the price of the (;) Cooper V. WiUomat, 1 C. B. 672. By the civil law actual tradition or delivery was essential to the transference of the ownership of movables ; and no right of property passed to the purchaser until possession was given. As between the vendor and purchaser, the contract of sale so far altered '!;he situation of the parties that, from the time of the making of it, the price became a debt due to the vendor, and the thing sold (when the sale was of an ascertained subject at an ascertained price) remained at the risk of the purchaser ; but the contract conveyed to the latter a mere jub ad beu, or ehoBC in action, and not the jus in re or right of property. Troplong, Dc la rente, Vol. 1, p. 60, 4tL ed. The vendor, so long as delivery had not been made, preserved as between himself and third parties the full dominion and ownership over the thing sold. " Qui nondum rem emptori tradidit, adhuc ipse dominua est." In- stit. lib. 3, tit. xxiv. § 3, Consequently, whenever the same thing was sold by the same owner to two different individuals successively, he who was first put into actual possession became the true owner. (m) Addiaon, On Contracts, 8th ed., bk. 2, chap. 7, sect. 2, p. 926. ■■m w SECT. III.] RIGHTS OF PKOPEBTY IN CHATTELS. 479 466 goods not delivered is tendered to aim ; and, if a debt is due to him for goods already delivered, he may refuse to deliver any more, until he is paid the debt due for those already delivered, as well as the price of those still to be delivered. If the goods are in the hands of the vendor, he may refuse delivery, unless actual possession has been given to the purchaser, or the latter has re -sold them to a sub-purchaser, and the vendor has consented to hold them for such sub-purchaser. If the goods are in the hands of a warehousekeeper or bailee for the vendor, and the vendor has given the purchaser a delivery order or warrant, such order or warrant may be countermanded, even although it has been accepted by the warehouse-keeper or bailee, unless possession has been given under it, or there has been a complete delivery by transfer of the goods in the bailee's books into the name of the purchaser, or into that of some sub-purchaser from him. If the goods are in the hands of a carrier or forwarding agent, the vendor may stop them in transitu, as it is called, that is, before they have come into the possession of the purchaser or some agent for him, or have readied their destination and are held by the carrier as the purchaser's agent for custody, unless there has been a sale to a sub-purchaser who claims as the bond fide indorsee and holder of a bill of lading {x). Private sale — Avoidance of sale on the ground of fraud. — A sale is voidable on the ground of fraud at the option of the party defrauded, if the parties can be restored to the position in which they stood before the sale. But, if a vendor has parted with goods in fulfilment of a contract of sale obtained by fraud, he cannot, after the goods have been re-sold and have passed into the hands of a bona fide sub-purchaser, disaffirm the contract, and annul the title of the latter to the property. If, however, the relation of vendor and purchaser does not subsist between the original owner and the person who commits the fraud — if, for instance, the goods have been obtained by false pretences in such a way as not to transfer the property in them — a bond, fide pur- chaser does not acquire a title to the goods, unless he has bought them in market overt (y). Bill of sale — Construction. — The law with respect to bills of sale is now regulated by the Acts of 1878 and 1882, the latter Act only applying to bills executed after November, 1882 (s), and s 1 I {x) Addison, On Contracts, 8th ed., bk. 2, chap. 7, sect. 2, pp. 966 et seq. (y) Ibid. p. 992. (z) Sect. 3. The section says the Act shall not apply, unless the context other- wise requires, to any bill of sale duly re- gistered before the commencement of the Act, nor does sect. 8 apply to an unregis- tered bill {aeellicksonv. Larlow, 23 Ch. D. 690 ; 62 L. J., Ch. 643), so long as the re- gistration thereof is not avoided by non- renewal or otherwise. It seems doubtful 1 i , t: n 'A J' 480 JNJURIES TO RIGHTS OF rKOPEUTY. [CUAP. VIII. 457 where tlie bill is given as a security for money. Every bill of sale under the Amendment Act made in consideration of any sum under 30/. is void {(i). Nothing in the Act is to apply to debentures of incorporated companies {h). A bill of sale by way of securi 1 M 4 . f .,. ." iii 1 1 , -t .1** ?i ,1 C) 1 1 < 482 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. 469 Under the Bills of Sale Act, 1882 (y) , a bill of sale is not void for omitting to specify the house or place at which the goods assigned are situated (r) . A bill of sale given by way of mortgage generally contains a power to the mortgagee to seize the chattels mortgaged on default in payment of the amounts due after demand. In such a case the demand should either be made on the mortgagor personally (s), or, if made at his dwelling-house in his absence, he must have an opportunity of complying with it in a reasonable time (t). Bilk of sale of after-acquired propcrli/. — A deed which professes to convey property not in existence at the time is, as a conveyance, void, simply because there is nothing to convey. So a contract which purports to transfer property not in existence cannot operate as an immediate alienation, simply because there is nothing to transfer ; but, if a vendor or mortgagor has agreed to sell or mort- gage property, real or personal, of which he was not possessed at the time of the making of the contract, and he receives the consi- deration for the contract, and afterwards becomes possessed of the property, and the property is of such a nature that specific per- formance would be decreed, the beneficial interest in the property is transferred to the purchaser or mortgagee, as soon as the pro- perty is acquired ; and the title of the grantee or assignee under the bill of sale will prevail, not only against a judgment creditor, but against a purchaser for value of the specific thing, unless he has fortified himself with actual possession without knowledge of the contract (m), or where the legal estate has passed to him without notice of the equitable interest (v). Since the Amendment Act, 1882, bills of sale registered after the commencement of that Act are void, except as against the grantor in respect of personal chattels in the schedule of which the grantor was not the true owner at the time of execution. (Sect. 6.) But a bill of sale of existing and after-acquired property is not void with respect to the existing property (a?) . The right to growing crops and the growing produce of the soil, not sown or planted at the time of the making of the grant, may pass thereby. "The land is the mother and root of all fruits. Therefore, he that hath it may grant aU fruits that may arise upon it after ; and the property shall pass as soon (?) 45 & 46 Vict. c. 43, ss. 4, 11. »•) Ex parte Hill, 17 Q. B. D. 74. (»] Beldinffv. Read, 3 H. & C. 956 ; 34 L. J., Ex. 212. Jotm v. Wilson, 4 B. & S. 442 ; 32 L. J., Q. B. 382. (<) Ma*8ey v. Sladen, L. E., 4 Ex. 13; 38 L. J., Ex. 34. (m) Eolroyd v. Marshall, 10 H. L. C. 214; 33 L. J., Ch. 193 ; overruling HoU royd T. Marshall, 30 L. J., Ch. 387. Beeve v. Whitmore, 32 L. J., Ch. 497. Clements v. Matthews, 11 Q. B. D. 808; 62 L. J., Q. B. 772. In re Count B'Epineul, 20 Ch. D. 758 ; 47 L. T. 157. Official Receiver v. Tailby, 17 Q. B. D. 88 (reversed 36 W. R. 91). {v) Joseph V, Lyons, 15 Q. B. D. 280 ; 54 L. J., Q. B. 1 ; Hallas v. Robinson, ib. 288 ; 64 L. J., Q. B. 364. {x) Roberts v. Roberts, 13 Q. B. D. 794 ; 53 L. J., Q. B. 313. SECT. III.] RIGHTS OF PROPERTY IN CHATTELS. 4h;{ 460 as the fruits are extant. A parson may grant all the tithe wool that he shall have in such a year, yet perhaps ho shall have none ; but a man cannot grant all the wool that shall grow upon his sheep that he shall buy hereafter ; for there he hath it neither actually nor potentially " (//). Growing crops separately assigned are excepted from the rule as to after-acquired property by sect. 6 of the Amendment Act, 1882 (s). When the power or authority has been executed to the extent of taking possession of the after-acquired property by the grantee thereof, it is the same as if the grantor had himself put the grantee iv actual possession of it (a). Whether the debtor gives possession by delivery with his own hands, or directs the creditor to take it, the effect after actual possession by the creditor is the same (i) ; ond the authority may be extended to crops and property on after- taken land, as well as on laud in the possession of the grantor at the time of the making of the grant (c). Bill of mlc — Registration of bilk of sale of chattels. — By the Amendment Act, 1882, every bill of sale must be duly attested and registered within seven days, otherwise it is void {d). To prevent frauds on creditors by parties in possession of moveables and personal chattels which appear to be their own property, but which have been secretly mortgaged to grantees or holders of bills of sale who have tho power of taking possession of such chattels to the exclusion of other creditors, it has been enacted (e) that every bill of sale (whether the same is absolute or subject or not subject to any trust) whereby the holder or grantee has power, either with or without notice, and either immediately or at any future time, to seize or take possession of any personal chattels comprised in or made subject to such bill of sale (/), shall be didy attested, and (u) Orantham v. Haivlei/, Hob. 132. (z) As to crops being " separately assigned," see Roberts v. Roberts, 13 Q. B. D. 794 ; 63 L. J., Q. B. 313. (a) BeUing v. Read, 3 H. & C. 965 ; 34 L. J., Ex. 212. (A) Congreve v. Evetti, 10 Exoh. 308. Hope V. Hayleij, 6 El. & Bl. 847. IM- royd V. Marshall, 10 H. L. C. 214 ; 33 L. J., Ch. 193. {c) Can- V. Allatt, 27 L. J., Ex. 385. \d) Sect. 8. [e) By the BUls of Sale Act, 1878 (41 & 42 Vict, c. 31), which came into force on the 1st of January, 1879, and applies to bills of sale executed on or after that date. This Act has been amended by the Bills of Sale Act, 1882 (45 & 46 Vict, o. 43), which came into force on the Ist of November, 1882, and applies to bills of sale executed on or after that date. The Act of 1878 repeals the former Acts (17 & 18 Vict. c. 36, and 29 & 30 Vict. 0. 96), except as to bills of sale executed before the 1st of January, 1879. (/) It would seem that sect. 3 of the Bills of Sale Act, 1878, applies to all documents comprised in sect. 4. The words therefore "whereby the holder has power to seize," npply to all such documents, and it was therefore held that if the effect of the document was immediately to transfer the possession in the goods, such document was not a bill of sale. In re Hall, Ex parte Close, 14 Q. B. D. 386; 54 L. J., Q. B. 43. Attenborougli' s ease, 28 Ch. D. 682. But the ratio decidendi of these cases has been disputed, and at all events a licence to take immediate possession is a bill of sale within the Acts, and must be in the form contained in the schedule of the Act of 1882, or it wiU be void, and as from its nature it cannot be in that fonn, such a document must be void. Ex parte Parsons, In re Totonsend, 16 i2 • ')« , : : I! • ■ •;!» » k K « ( . 1 1 1 1 '^ • '* • ' ; 1 «( *■ h f" . 'ii I ' .} 484 INJURIES TO RIGHTS OP PROPERTY. [CIIAP. VIII. 461 shall bo regiatered under that Act within seven (f/) days after the making or giving thereof, and shall set forth tho consideration for which such bill of sale was givon (//) ; otherwise such bill of sale, as against all trustees or assignees of the estate of tho person whoso chattels, or any of thorn, are comprised in such bill of sale under the law relating to bankruptcy or liquidation, or under any assignment for tho benefit of tho creditors of siich person, and also as against all sheriffs' officers and other persons seizing any chattels comprised in such bill of sale, in tho execution of any process of any court authorizing the seizure of the chattels of the person by whom or of whose chattels such bill has been made, and also as against every person on whose behalf such process shall have been issued, shall bo deemed fraudulent and void so far as regards tho property in or right to the possession of any ^battels comprised in such bill of sale which, at or after the time of filing the petition for bankruptcy or liquidation (/), or of the execution of such assignment, or of executing such process (as the case may be), and after the expiration of such seven days are in the possession or apparent possession of the person making such bill of sale (or of any person against whom the process has issued under or in the execution of which such bill has been made or given, as the case may be) (k). The bill of sale must truly set forth the consideration for which it was given (/), and if given for less than 30/. it is void (m). A bill of sale expressed to be in cou- aideration of 30/., of which 15/. was to be, and in fact was, repaid immediately, may, in the absence of evidence that the transaction is a sham, be valid (»). Biil of sale — W/iat is a bill of sale within the meaning of the Act. — The expression, '* bill of sale," includes bills of sale, assign- Q. B. D. 632 ; 56 L. J., Q. B. 137. See also North Central Waggon Co. v. Man- chester, Sheffield and Lincoln Rail. Co., 32 Ch. D. 477. And Ex parte Hubbard, 17 Q. B. D. 690. [g] Under the former Acts twenty-one days were allowed for registration. \h) This clause as to setting forth the consideration is not to be found in the former Acts. As to what is a sufficient compliance with this provision, see note {I). (i) The time specified la the former Acts was the time of the bankruptcy ; and it was held that the "time of the bank- ruptcy " meant the time of the commit- ting of any act of bankruptcy to which the title of the trustee could relate back, and that it was immaterial whether or not the gprantee had notice of the act of bankruptcy, tho taking possession by the grantee of an unregistered bill of sale not being a protected transaction within sects. 94 and 95 of the Bankruptcy Act, 1869. Ex parte Att water, 5 Ch. D. 27; 46 L. J., Bk. 41. (k) 41 & 42 Vict. c. 31, ss. 3 and 8. (/) Sect. 8 of Act of 1882. Ex parte Allam, 14 Q. B. D. 43. Roberta v. Roberts, 13 Q. B. D. 794 ; 53 L. J., Q. B. 313. As to setting forth the considera- tion under sect. 8 of the Act of 1878, see Credit Co. v. I'ott, 6 Q. B. D. 295 ; 44 L. T. 506. Hamilton v. Chaine, 7 Q. B. D. 319; 50 L. J., Q. B. 456. In re Cann, 13 Q. B.D. 36, in re Firth, 19 Ch. D.419; 51 L. J., Ch. 473 (distinguished). Ex- parte Johnson, 26 Ch. D. 338 ; 53 L. J , Ch. 762. Ex parte Holland, 21 Ch. D. 643; 52L.J.,Ch. 113. Ex parte Rolph, 19 Ch. D. 98; 51 L. J., Ch. 88. Ex parte Carter, 12 Ch. D. 908. Hughes v. Little, 17 Q. B. D. 204. (m) Sect. 12. (m) Davis V. Usher, 12 Q. B. D. 490 ; 63 L. J., Q. B. 422. SECT. III.] BiailTS OF PROrERTY IN CHATTELS. 485 462 monts, traiisfors, declarations of trust without transfer, inven- tories of goods with receipts tlioroto attached, or receipts for pur- chase-moneys of goods (o), and other assurances of personal chattels, and also powers of attorney, authorities or licences to take pos- session of perHonal chattels as security for any debt, and also any agreement, whether intended or not to be followed by tho execution of any other instrument, by which a right in equity to any personal chattels, or to any charge or security thereon, shall be conferred ( p) ; but it does not include assignments for the benefit of the creditors of tho person making or giving the same, marriage settlements, transfers or assignments of any ship or vessel or any share thereof, transfers of goods in the ordinary course of business of any trade or calling, bills of sale of gooda in foreign parts or at sea, bills of lading, India warrants, ware- house keepers' certificates, warrants or orders for the delivery of goods, or any other documents used in tho ordinary course of business, as proof of the possession or control of goods, or au- thorizing, or purporting to authorize, either by indorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented {q). An assignment for the benefit of creditors, in order to be exempt from tho necessity for registration, must be for tho benefit of all the creditors and not of a part only (r). A post-nuptial settlement must be registered (.s). Every attornment, instrument, or agreement, not being a mining lease, whereby a power of distress is given, or agreed to bo given, by any person to any other person by way of security for % (o) Notwitlistuiiding tlit'so two last exprcsHious, which aro not to be found iu the former Actn, n document, to bo a bill of sale to which tho Act applien, must 1)0 one on wliich the title oi the transferuo of the goods depends, either as tho actual transfer of tho property, or an agreement to transfer, or as a muni- ment or document of title taken at the time as a record of tho transaction ; and a receipt not given or asked for until after the transaction of purchase or sale is completed does not require registra- tion. Marsdcn v. Meadoun, 7 Q. B. D. 80; 50 L. J., Q. B. 636. {p) This clause as to agreements con- ferring an equitable right is new, and is intended to put to rest the doubts raise^i t if ,s I 488 INJURIES TO RIGHTS OF PIXOPERTY. [CHAP. VIII. 465 u(;vv by law required to be filed (f/). By the Stamp Act, 1870 (//), no copy of a bill of sale is to be filed, unless the original, duly stamped, is produced to the proper officer. Bill of sale— The affidavit.— Under the Act of 1878 the affidavit must state that the bill of sale was duly attested by the attesting solicitor. If it merely verifies his signature to the attestation clause, and describes his residence and occupation, it is insufficient («). It need not state that the effect of the bill was explained to the grantor (A-). The affidavit must contain a description of the residence and oco.ipation of the grantor, and of the attesting witness; and it is not sufficient that there is such a description in the bill of sale (/). But, if the bill of sale itself clearly speci- fies all these particulars, and the affidavit refers to them as set forth in the bill of sale in such a waj' as to verify them on oath, the affidavit will be sufficient {»i) ; and the description of the residence of the grantor in the copy of the bill of sale may be referred to, to explain and supplement the description given in the affidavit where that is insufficient («), An affidavit of the residence and occupation of the grantor to the best of the depo- nent's belief is sufficient, if uncontradicted (o). Bill of sale — Affidavit — Description of t^,^ residence and occupation of the grantor and witnesses. — The description must be such as firs the grantor at the time cf swearing the affidavit, not that of giving the bill of sale (p). The witness is properly described as residing at the place where he is employed or carries on his business. Thus a solicitor's clerk is properly described as residing at his master's office, where he attends all day {q) ; but he may also be described {g) Sect. 10 of Ad, of 1878; as to local registration, tee deot. 11 of Act c* 1882. The copy of the bill of sale and the affidavit and the fact and date of registration may be proved by the production of a copy of the registered bill of sale and affidavit purporting to be an office copy thereof. Sect. 16. As to the former Acts, see Grindell v. Bretidon . 6 C. B., K. S. 698 ; 2S L. J., C. P. 333; Undtr the former Acts it was held that a certificate under the seal of the Queen's Bench Division that an affidavit and copy bill of sale had been filed did not reueve the party relying on such bill of sale from the necessity of producing the copy filed, so as to show that it was in the same terms as that proved to have been executed. Emmott v. Marchant, 3 Q. B. D. 555 ; S. C, nom. Malkett v. Emmott, 47 L. J., Q B. 436. (A) 33 & 34 Vict. c. 97, s. 57. (t) Sharpe v. Birch, 8 Q. B. D. Ill ; 51 L. J., Q. B. 74. Ford v. Kettle, 9 Q. B. D. 139 ; 51 L. J., Q. B. 568. Sect. 11 of the Amendment Act, 1882 provides for the local registfation of the contents of a bill of sale where the affidavit shows the bill is not within the London Bankruptcy District. {k) Ex parte Bolland, 21 Ch. D. 643 ; 62 L. -T , Ch. 113. Ex parte National Mcrcaui AC Bank, 15 Ch. D. 42 : 49 L. J., Bk. 62. [I). Uatton V. English, 7 El. & 31. 94 ; 26 L. J., Q. B. ifil. Fickard v. Bretz, 5 H. & N. 9 ; 29 L. J., Ex. 18. (>«) Mouth V. Roublot, 1 El. & El. 850; 28 L. o ., Q. B. 240. Foulger v. Taylor, 6 H. & N. 202 ; 29 L. J., Ex. 154. («) Jones V. Harris, L. R., 7 Q. B. 157 ; 41 L. J., Q. B. 6. (o) lioe V. Bradshaw, L. R., 1 Ex. 106; 35 L. J., Ex. 71. {p) Button V. O'Xeill, 4 G P. D. 354, overruling London and Westminster Loan Co. v. Chace, 12 C. B., N. S. 730; 31 L. J., C. P. 314. But where the address in the affidavit was the a&vae as in the bill, but the deponent had gone to America, it was held correct. In re Hewer, 21 Ch. D. 871 ; 46 L. T. 856. {q) Attenborough v. Thompson, 2 H. & N. 559 ; 27 L. J., Ex. 23. SECT. III.] RIGHTS OF I'ROPERTY IN CHATTELS. 489 I 466 as residing at the place where he sleeps at night (r). If the description is substantially correct, and parties could not have been misled by it, it will sufiBce («). Y^here the number of the resi- dence is essential, it must be given correctly (t). Where a person has an occupation, it must be correctly stated as a means of identification ; but the onus of proving that the party has an occupation lies on the person seeking to impeach the bill of sale. If the grantor of the bill of sale had no occupation at the time of the execution of the instrument, he may be described as having no occupation (m), or as a " gentleman " (*). But, if the party has any occupation at all, and is receiving remuneration for services of any sort or kind, his occupation must be correctly stated ; and it will not do to describe him generally as a "gentleman" (y), or "esquire" (s). A d-^scription of a clerk in a government office, or an attorney's clerk, as "gentleman" is not sufficient («). A description of a clerk in the accountant's department of a railway company as an "accountant" is insufficient (6). Where the bill of sale is given by a trading company, a state- ment cf the name of the company and the address of its principal office in the affidavit is a sufficient compliance with the Act, and it is not necessary to state the residences or occupations of directors who sign as such, and not as attesting witnesses (c). Where there are two witnesses to the execution of a bUl of sale, and the affidavit filed with the bill contains a description of the residence and occupation of one of them only, it is insufficient (d). Bill of sale — Time of registration. — When the time for registering a bill of sale expires on a Sunday, or other day on which the regis- trar's office is closed, the registration will be valid if made on the next following day on which the office is open (e). A bill of sale is not invalid by reason of its not having been filed, if the goods comprised in it are seized before the expiration of the time for filing it (/). (r) Blackwell v. £,igland, 8 El. & Bl. 541 ; 27 L. J., Q. B. 124. («) Hewer v. Cox, 30 L. J., Q. B. 73. Briggs v. Boss, L. R.., 3 Q. B. 268 ; 37 L. J., Q. B. 101. Ex parte M'Maltic, 10 Ch. D. 398. (<) Murray v. Mackenzie, L. E., 10 C. P. 625; 44 L. J., C. P. 313. (u) Trousdale v. Shepperd, 14 Ir. C. L. R. 370. {x) Sutton V. Bath, 3 H. & N. 382 S. C, Bath V. Sutton, 27 L. J., Ex. 388. Morewood v. South York, ^c, 3 H. & N. 800 ; 28 L. J., Ex. 1 14. Gray v. Jones, 14 C. B., N. 8. 743. Smith v. Cheese, 1 0. P. 1). 60 i5 L. J., C. P. 156. (y) Beales v. Tennait, 29 L. J., Q. B. 188. Ifryden v. Ilope, 9 W. E. 18. Adam* t. Graham, 33 L. J., Q. B. 71. Brodrick v. Scak, L. R., 6 C. P. 98; 40 L. J., C. P. 130. (z) Ex parte Ilooman, L. R., 10 Eq. 63 ; G9 L. J., Bk. 4. («) Al'-n V. Thompson, 1 H. & N. 15 ; 25 L. J., Ex. 249. Tuton v. Sauoner, 3 H. & N. 280 ; 27 L. J., Ex. 293. (A) Larchin v North Western Deposit Bank, L. R., 10 Ex. 64 ; 44 L. J., Ex. 71. {c) Shears v. Jacob, L. R., 1 C. P. 512; 35 L. J., C. P. 241. Leffel v. White, L. R., 2 C. P. 144 ; 36 L. J.. C. P. 25. {d) Tickard v. Marriage, 1 Ex. D. 364 ; 45 L. J., Ex. 694. (e) Sect. 22 of Act of 1878. (/) Marplesv. Hartley, 30 L. J., Q. B. 92. Banbury v. White, 2 H. & C. 300 ; 32 L. J., Ex. 259. s, 490 INJURIES TO RIGHTS OP PROPERTY. [CHAP. VIII. ^4 r: = «:] .'4 ■ I; 467 -BiV/ o/* sfl/ig — Registration oj defeasance or condition. — If the bill of sale is made or given subject to any defeasance, or condition, or declaration of trust not contained in the bouy thereof, such defeasance, condition, or declaration is to be deemed to be part of the bill, and must be written on the same paper or parchment therewith before the registration, and be truly set forth in the copy filed therewith, and as part thereof, or the registration will be void (jr). Where a b'll of sale of furniture was given to secure the payment of 250/. and interest on demand, and in default of payment the mortgagee was empowered to take possession, but there was a prior, parol agreement, not appearing in the bill of sale, that the debt should be paid off by small weekly instalments, it was held that this was a defeasance or condition, and that the bill was void as against the trustee in bankruptcy of the mortgagor (/<). But, if the grantee under the bill of sale holds the property in trust for some third party who has advanced money upon the property included in it, such trust need not be declared on the face of the bill of sale (»). A transfer or assignment of a registered bill of sale need not be registerea (A). Bill OJ sale — Reneual of registration. — The registration of a bill of sale, whether executed before or after the Ist of January, 1879, must be renewed once at least every five years ; and, if a period of five years elapses after the registration, or renewed registration, of a bill of sale, without a renewal or further renewal (as the case may be), the registration will become void {I). The renewal of a registration must be effected by filing with the registrar an affidavit (»«)» stating the date of the bill of sale and of the last registration thereof, and the names, residences, and occupations of the parties thereto as stated therein (w), and that the bill of sale is still a subsisting security (o). Any renewal after the 1st of January, 1879, of a bill of sale executed before that day and registered imder the former Acts must be made in the same manner as the renewal of a registration made under the existing Act {])). A renewal of registration does not become necessary by reason only of a transfer or assignment of a bill of sale {q). But, where the grantee, before the period for renewal, essigns his interest in the bill of sale to a third person, the assignee, if the registration is not renewed at the proper time, has no title as against an execution creditor (r). [g) Sect. 10 of Act of 1878. (h) Ex parte Southam, In re Latham, L. R., 17 Eq. 678 ; 43 L. J., Bk. 39. (t) £obin»on v. Colling wood, 17 0. B., N. S. 777 ; 34 L. J., C. P. 18. (*) Sect. 10. (/) Sect. 11. (»>) A forn) of affidavit is given in the Act. (n) The residence must bo stated as in the original bill, even if incorrect. Ex parte Webster, 22 Ch. D. 136 ; 62 L. J., Ch. 375. (o) Sect. 11. {p) Sect. 23. (?) Sect. 11. (r) Karet v. Koshen Meat Supply Asso- eiatioii, L. R., 2 Q. B. 361. See Cookton V. Huire, 9 App. Gas. 663; 64 L. J., G. B. 49. SECT. III.] BIGHTS OF PROPERTY IN CHATTELS. 491 468 Bill of sale — Rectification of the register. — Any judge of the High Court of Justice, on being satisfied that the omission to register a bill of sale or an affidavit of renewal thereof within the time pre- scribed by the Act, or the omission or misstatement of the name, residence, or occupation of any person, was accidental or due to inadvertence, may, in his discretion, order such omission or mis- statement to be rectified by the insertion in the register of the true name, residence, or occupation, or by extending the time for such registration, on such terms and conditions (if any) as to security, notice by advertisement or otherwise, or as to any other matter as he thinks fit to direct (s). Bill of sale — Evasion of registration. — A practice had grown up under the former Acts of giving an unstamped bill of sale for a debt, and then, before the time for registration had arrived, renewing the bill, and so on, until at last a final bill was given which was duly stamped and registered. Upon each renewal the old bill was cancelled, and the original debt thus became the con- sideration for the new bill, and ultimately the last bill which was registered was good against the execution creditor (t). The Act of 1878, however, provides that, where a subsequent bill of sale is executed within or on the expiration of seven days after the exe- cution of a prior unregistered bill of sale, and comprises all or any pai't of the personal chattels comprised in such prior bill of sale, then, if such subsequent bill of sale is given as a security for the same debt as is seciu^^d by the prior bill of sale, or for any part of suoli debt, it will to the extent to which it is a security for the same debt, or part thereof, and so far as respects the personal chattels, or part thereof, comprised in the prior bill, be absolutely void, unless it is proved to the satisfaction of the court having cognizance of the case that the subsequent biU of sale was bond fide given for the purpose of correcting some material error in the prior bill of sale, and not for the purpose of evading the Act («). Bill of sale — Priority of bills of sale. — If two or more bills of sale are given, comprising in whole or in part any of the same chattels, they will have priority in the order of the date of their registration respectively as regards such chattels {x). ■i '■I ■J (s) Sect. 14. (t) Sinalc V. Burr, L. R., 8 C. P. 04 ; 42 it. J., C. P. 20. Ramsden v. Zupton, L. R., 9 Q. B. 17 ; 43 L. J., Q. B. 17. (ii) Sect. 9. {x) Sect. 10. Under the former Acts the law was otherwise. The grantee under an unregistered bill had priority over the grantee under a registered bill (Nichohon v. Cooper, 3 H. & N. 384 ; 27 L. J., Ex. 393. Stansfeld v. Cubitt, 2 De G. & J. 227 ; 27 L. J., Ch. 266. Badger v. Shaw, 2 El. & El. 472; 29 L. J., Q. B. 77), unless the unregistered bill was avoided by an execution, in which case it was displaced altogether, and the grantee under the registered biU got priority. Richards v. Jamef, L. R., 2 Q. B. 285 ; 36 L. J., Q. B. 116 ; but now, as to this, see Ex parte Rlaiberg, 23 Ch. D. 254 ; 62 L. J., Cl\. 461, upon sect. 8 of the Act of 1878, which Be;tion is repealed. ii .. y . Is IS? !!i 492 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. 469 Bill of sale — Effect of non-registration. — A bill of sale which was unregistered was not void under the Act of 1878 as between grantor and grantee (i/) ; but a registered bill of sale took priority over one that was earlier but unregistered, as to any chattels that might be comprised therein (s) ; but now every bill of sale must be registered, otherwise such bill of sale will be void in respect of the personal chattels compriseu therein («). Where a bill of sale, under the Act of 1878, given by two partners was noi registered, and one of them afterwards became bankrupt, the bill was void as against the trustee only to the extent of the bankrupt's moiety (b). The fact that an execution creditor was, at the time when his debt was contracted, aware that his debtor had given a bill of sale of chattels, does not prevent his availing himself of the objection that it has not been registered (c). Bill of sale — W/iat is posseasion of the grantor. — The question of possession or apparent possession of the grantor is not now material as to bills of sale executed after November, 1882 (d), and given by way of security ; but as to other bills of sale the law remains as heretofore. Goods in the possession of a bailee to hold on acooimt of the bailor are still in the possession of the bailor within the meaning of the Bills of Sale Act, 1878; and they are not taken out of the possession of the bailor by the holder of the bill of sale requiring the bailee to deliver them up to him, if the bailee refuses to deliver possession of them (e). Actual possession by the grantee of an unregistered bill of sale, even though taken wrongfully, may exclude the oper",tion of the Act. But, in the case of a wrong-doer, the possession will not be extended by con- struction of law beyond the actual physical possession (/). Bill of sale — What is *' apparent possession." — Personal chattels are to be deemed to be in the " apparent possession " of the person making or giving a bill of sale, so long as they remain, or are, in or upon any house, mill, warehouse, building, works, yard, land, or other premises occupied by him, or are used and enjoyed by him in any place whatsoever, notwithstanding that formal pos- session thereof may have been taken by, or given to, any other person {g). The question of whether there is an apparent pos- session or not is a question of fact (/<). There must be something done which takes the goods plainly out of the apparent possession (y) Davis v. Goodman, 5 C. P. D. 128 ; 49 L. J., C. P. 344. Cookson v. Swire, 9 App. Gas. 653. (z) Conellff V. Steer, 7 Q. B. D. 520 ; 50 Ii. J., Q. B. 326. {a) 46 & 46 Vict. o. 43, s. 8. (b) Rv parte Brown, 9 Ch. D. 389. (c) Edwards v. Edwards, 2 Ch. D. 291; 46 L. J., Ch. 391. {d) See Reed's Bills of Sale Acts, p. 63, per Wills, J., Walrond v. Gold- man, 16 Q. B. D. 121. As to goods in the order or disposition of a bankrupt grantor, see post, p. 484. (e) Ancona v. Rogers, 1 Ex 46 L. J., Ex. 121 (/) Ex parte Fletcher, 5 Ch 46 L. J., Bk. 93. D. 285 ; D. 809 ; {g) Sect. 4. (A) Gough V. Everard, 2 H. & C. 1 ; 32 L. J., Ex. 212. SECT. III.] RIGHTS OF PROPERTY IN CHATTELS. 493 470 of the debtor in the eyes of everybody who sees them (»"). Thus, where the assignee under a bill of sale of household furniture and effects immediately sent a person into the house to take and keep, and who took and kept, possession, but the assignor, down to the date of his bankruptcy, continued to live in the house and use the fiu-niture as before, it was held that the goods were in the apparent possession of the assignor (A-). Where the grantor of a bill of sale of household furniture managed a business as servant to the granlee at a weekly salary, and was allowed to reside in the house where the business was carried on, and to use the furniture as part of his salary, the grantee residing elsewhere, it was held that the goods were in the possession of the grantor (/). But, where the grantor was tenant of rooms in which the goods comprised in the bill of sale were placed, but resided elsewhere, and, having made default in paying the sum secured, he gave the keys of the rooms to the grantee, who opened them and put his name on some of the goods, it was held that the grantor did not occupy the rooms, and that the goods were not in his apparent possessioi (m). So, where the grantee of a bill of sale takes pos- session of the goods comprised in it, and advertises them for sale as the goods of the grantor sold under a bill of sale, the goods, though still in the house of the grantor, are no longer in his apparent pos- session («). Goods formally seized by the sheriff under an execu- tion do not, as it seems, remain in the £.pparent possession of the debtor (o). Bill of sale — Seizure of goods tinder bill of sale. — With respect to the power to seize under a bill of sale, it is enacted : — Sect, 7. Personal chattels assigned under a bill of sale shall not be liable to be seized or taken possession of by the grantee for any other than the following causes : — (1.) If the grantor shall make default in payment of the sum or sums of money thereby secured at the time therein provided for payment, or in the performance of any covenant or agreement contained in the bill of sale, and neces5ary for maintaining the security (oo) ; (2.) If tbo grantor shall become a bankrupt {p), or suffer the (i) ££ parte Jay, L. R., 9 Ch. 697 ; 43 L. J., Bk. 122. (A) Ex parte Hooman, L. R., 10 Eq. 63 ; 39 L. J., Bk. 4. Ex parte Lewis, L. R.. 6 Ch. 626. Seal v. Claridge, 7 Q. B. D. 516 ; 60 L. J., Q. B. 316. {I) rickard V. Marriage, 1 Ex. D. 364 ; 45 L. J., Ex. 694. (m) Robinson v. Briggs, L. R., 6 Ex. 1 ; 40 L. J., Ex. 17. (m) Emanuel v. Bridger, L. R., 9 Q. B. 286 ; 43 L. J., Q. B. 96. (o) Ex parte Saffery, 16 Ch. D. 668 ; 44L. T. 32i. Bxkt em Ex parte Mutton, L. R., 14 Eq. 178 ; 41 L. J., Bk. 67. {oo) This does not mean merely " useful " for maintaining the security, Biiianchiv. Offord, 17 Q. B. D. 484, and it is of no avail that the parties declare a coverant to be necessary. Furber v. Cobb, 17 Q. B. D. 499. {p) A biU of sale authorized seizure in case the grantor ' ' shall do or suffer any matter or thing whereby he shall become bankrupt ;" this was held to be in substance the same as the words in the section. Ex parte Allam, 14 Q. B. D. 43. ^^^ " ? k^-Ate^- 494 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. i] M'^ %ii ' m '.ill 471 said goods, or any of them, to be distrained for rent, rates, or taxes ; (3.) If the grantor shall fraudulently either remove or suffer the said goods, or any of them, to be removed from the premises ; (4.) If the grantor shall not, without reasonable excuse {q), upon demand in writing by the grantee, produce to him his last receipts to him for rents, rates, and taxes ; (5.) If execution shall have been levied against the goods of the grantor under any judgment at law : Provided that the grantor may within five days from the seizure or taking possession of any chattels on account of any of the above-mentioned causes, apply to the High Court, or to a judge thereof in chambers, and such court or judge, if satisfied that by payment of money or otherwise the said cause of seizure no longer exists, may restrain the grantee from removing or selling the said chattels, or may make such other order as may seem just (>•). By sect. 13, all personal chattels seized, or of which possession is taken after the commencement of this Act, under or by virtue of any bill of sale (whether registered before or af, 3r the commence- ment of this Act), shall remain on the premises where they were so seized or so taken possession of, and shall not be removed or sold until after the expiration of five clear days from the day they were eo seized, or so taken possession of. By sect. 14, a bill of sale to which this Act applies shall be no protection in respect of personal chattels included in such bill of sale which, but for such bill of sale, would have been liable to distress under a warrant for the recovery of taxes and poor and other parochial rates. Bilk of lading. — Bills of lading, made out to the order of the shipper or consignee, are negotiable and transferable by indorse- ment and delivery, so as, in the absence of notice of fraud, or insolvency, or want of title on the part of the indorser (s), to vest the right of property and ownership of the merchandize com- prised therein in a bend fid). Wlioro pictures wore dopositod with A (whoso or.iinary husiness was that of an agent for two insurance odiccs), with instructions to sell thonj, it " ".s held that A was an agent i tit rusted with tho possession of goods (y) ; and, whore bonds pajablo to boaror and passing by delivery only were deposited with bankers for safe custody, and tho bankers fraudulently deposited them with their broker as a security for money advanced, and became bankrupt, it was hold that tho bonds wore subject to tho general lien of tho brokers for all money advanced by them to tho bankers in igno- rance of tho fraud (r). 13ut a warehouse keeper who has goods deposited with him as such is not " an agent intrusted with the possession of them " within tho Act, although ho is also a broker, and is usually em- ployed to sell such goods, but always upon specific instructions for that purpose received from the principal (s) Nor is a person instructed to keep in his own house the furniture of another, an agent within tho meaning of the Act (/). But a factor or agent who has got possession of a bill of lading, dock-warrant, or document of title without tho sanction and authority of the principal is not necessarily iiifninfal therewith, although tho principal has put it in tho power of tho agent to obtain possession of tho document. If ono man gives to another the key of his bureau to take out a receipt, and the latter possesses himself of u bill of lading, ho cannot bo said to bo intrusted with the latter document (n) ; and a merchant's cler): having dock- warrants in his possession in the course of his employment is not intrusted with them within tho meaning of tho Act {x}. So, also, where either the goods or documents of title aro obtained from the owner, not on a contract of sale defeasible on account of fraud but good till avoided, but by some trick, a pur- chaser or pledgee acquires no title, for tlie trickster is not an agent intrusted with the possession (y). But, if tho true owner does in fact entrust the agent as an agent, though he is induced to do so by fraud, a pledge by the agent will be good (s) . (i<) J'liillips V. Jfiith, C M. & W. 599. (^) jMHib Y. Attctiborough, 1 B. & S. 831 ; 31 L. .L, Q. B. 41. (y) Kinffuford v. Merry, 1 H. & N. 603; 20 L. J., Ex. 83. Ilardman v. Booth, 1 H. & C. 803 ; 32 L. J., Ex. lO.T ; Lindsay v. Cundy, ante, p. 461. aShcppard v. Union Bank of London, . & N. 661 ; 31 L. J., Ex. 184. Barries v. Swainson, 4 B. & S. 270 ; 32 L. J., Q. B. 281. (/)) StH-cns V. B tiler, 25 Ch. D. 31 ; 63L. J.,Ch. 249. (?) lleyman v. FUwker, 13 C. B., N. S. 519; 32 L. J., C. P. 132. Bainea v. Suainson, 4 B. & S. 270 ; 32 L. J., Q. B. 281. (>•) Jonei V. Beppercorne, Johns. 430 ; 28 L. J., Ch. 168. (») Cole V. North Wrstern Bank, L. R., 9 C. P. 470; 10 C. P. 354; 44 L. J., C. P 233. (<) Wood V. RoKcliffe, Hare, 183. SECT. III.] inOIlTS OF I'ROl'EUTV IN CHATTMLS. AOl f 478 luictoi'H — What p/('ff(/rs niitl /I'riis arr irif/iin tlw Act. — All coil- trncls pli'd^'ing, or giving a lion iipon, docunioiitB ^' fitlo are to be (loemed nnd taken to bo \)lodgo8 of, and liong w^'ni, ). The Act protects every bond, fulc advance, but only bona fide advances, not antecedent liabilities (whether they may or may not have ripened into debts), where no actual advance is made at the time of the pledge. Therefore, where a factor pledged goods of his principal with A, first, to secure the payment of an acceptance of the factor's in ^'s hands, not then due, which had been given to protect A from liability on a contract as the factor's broker ; and, secondly, to repay to A his loss on a re-sale of goods A had purchased from the factor in his own name, it was held that the transaction was not within the Act (c). Where the plaintiff, a manufacturer, had consigned goods to one Clark, who had acted as agent for him, and also as agent for the defendant, and Clark, being liable, with the de- (rt) 5 & 6 Vict. 0. 30, 8. 4. ' ) Portalia v. TetUy, L. R., 6 Eq. 'O ; 37 L. J., Ch. 139. (c) Macnee v. Gorst, L. R., 4 Eq. 315. See Kaltenbach v. Lewis, 10 Ap. Cas. 617 ; 65 L. J., Ch. 68. 602 INJURIES TO RIGHTS OF PROPERTY. [ciIAP. VIII. ^3^: 479 fendant, on a bill of exchange which had become due, obtained from the defendant 300^ for the purpose of taking up the bill, and at the same time deposited the plaintiff's goods with the defendant, it was held that the payment of the 300/. by the defendant, to be applied by Clark in discharging the joint liability upon the bill, was not an advance or loan of money upon a deposit of goods, nor a contract of pledge, within the intent and meaning of the Factors' Acts, and that the defendant, consequently, had no lien upon the goods as against the plaintiff (d). An advance made to a third person at the request of the factor is within the Act (e). Factors — Berocatiou of the agent'' 8 aut/ioriti/. — By the 40 & 41 Vict. 0. 39, s. 2, it is enacted that, where any agent or person has been intrusted with and continues in the possession of any goods, or documents of title to goods, any revocation of his intrustment or agencj' shall not prejudice or affect the title or rights of any other person, who, without notice of such relocation, purchases such goods, or makes advances upon the faith or security of such goods or documents (/). Transfer — Sales and pledges by vendors after a 2>reviom sale. — By sect. 3 of the sauie Act it is enacted that, where any goods have been sold, and the vendor or any person on his behalf continues or is in possession of the documents of title thereto, any sale, pledge, Cf other disposition of the goods or documents made by such vendor, or any person or agent intrusted by the vendor with tho goods or documents so continuing or being in his possession, shall be as valid and effectual as if such vendor, or other person, were an agent or person intrusted by the vendee with the goods or documents, provided the person to whom tho sale, pledge, or other disposition is made has not notice that the goods have been pre- viously sold {g). Transfer — Sales and pledges by purchasers. — By sect. 4, where any good^ have been sold or contracted to be sold, and the vendee, or any person on his behalf, obtains the possession of the documents of title thereto from the vendor or his agents, any sale, pledge, or disposition of such goods or documents by such vendee so in possestlon, or by any other person or agent entrusted by thi. vendee with the documents, shall be as valid and effectual as if such vendee or other person were an agent or person intrusted by the vendor with the documents, provided the person to whom the (rf) Learoyd v. Robinton, 12 M. & W. 745. («) Sheppard V. U'' ion Bank of London, 7 H. & N. 661 ; 31 L. J., Ex, 154. (/) This Act applies only to acts done and rights acquired after the 10th of August, 1877 (sect. 6). The law was fonnerly othorwiae. Fuentes v. Montis, L. R., 4 C. P. 93 ; 38 L. J., C. P. 137. (ff) The Act applies only to acts d^no and riglits acquired after the lOtli of August, 1877 (sect. 6). The law was formerly otherwise. Johnson \. Credit Lyomiais Co., 3 C. P. D. 32 ; 47 L. J., C. P. 241. SECT. III. RIGHTS OF PROPERTY IN CHATTELS. 603 M 480 sale, pledge, or other disposition is made has not notice of any lien or other right of tl ^ vendor in respect of the goods (/«). Tramfer — Title hi/ estoppel. — If the defendant has by deed ad- mitted the title of the plaintiff to the chattels in respect of which the action is brought, he will be estopped from disputing it at the trial (j). If he has accredited the title of some third person to the goods, and so induced the plaintiff to buy from the latter, he will be estopped from setting up any title in himself (k). If the owner of goods parts with the possession of them, and knowingly suffers his bailee to deal with the goods as owner, and culpably and negli- gently stands by and allows a third person to acquire an interest in the goods on the faith and understanding of a fact which he can contradict, and does not contradict, he will be afterwards estopped from disputing the fact in an action against the person whom he has himself assisted in deceiving. Thus, if A, the owner of goods, ptands by and permits B to sell them to C, without giving any notice to C of his being the real owner of the goods, he will be -stopped from disputing C"s title under the sale (/). So, where the defendants negligently issued for one consignment of wheat two delivery orders which differed so much that they might reasonably be supposed to relate to different consignments, it was held that the defendants were estopped by their negligence from showing that the orders related only to one consignment, and that they were liable for loss sustained by the plaintiffs who had advanced money on both delivery orders thinking that they related to distinct consignments {ni] . Where the plaintiff, in order to protect his personal effects from his creditors, delivered the actual possession of them to the defen- dant, and, in order that the latter might appear to be the true owner, made a priced invoice of the articles, and gave a receipt to the defendant for the amount as on a sale, it was nevertheless held that the plaintiff, as between himself and the defendant, was not estopped from showing the real character of the transaction, so as to entitle hira to recover back the goods from the defendant. Here no deed of transfer had been executed, and the jury found that there was no sale and no intention of transfening the right of pro- perty in the things to the defendant. " It is perfectly true," ob- serves Martin, B., " that, if an act is done, the party cannot avail himself of his own fraud to undo it -, but here the act is not done, as the jury expressly nnd there was no sale at all to the defendant," (/*) This Act applies only to acts done and rights acquired after the 10th of August, 1877 (sect. 6). The law was formerly otherwise. Jenkyns v. Ushorne, 7 M. & G. 678 ; 8 So. N. R. 505. McEwan \. Smith, 2.1i.& C. 309. (i) Wiles V. Woodward, 6 Exch. 657. (k) Waller \. Drake ford, 1 El. & Bl. 753 ; 22 L. J., Q. B. 275. (l) Oregg v. Welh, 10 Ad. & E. 98. (»») Coventry y. Great Eastern Rail. Co.. 11 Q. B. D. 776 ; b'2, L. J., Q. B. 694. W 604 INJURIES TO RIGHTS OF PROPERTY. [cIIaP. VIII. I'- 1'^ 1%% 'pi 481 and no transfer whatever of the property in these goods to him(H)' Transfer bi/ death — Title of an odmhmtrator. — The title of an administrator relates back to the death of the intestate ; and, there- fore, an action is maintainable by an administrator for a wrong- ful seizure (o) or sale by the defendant of the intestate's goods made between the death of the intestate and the grant of the letters of administration {p). If a mau has intermeddled with the goods of a deceased person for the purpose of preserving and administering his estate m 'as thus made himself jxocutor tie son tort, he may be sued lor a trespass and conversion by the rightful administrator, when he has obtained letters of administra- tion ; but, if no injury has been sustained by the estate, nominal damages only will be recoverable (q). Reeovcry of judgment in an action. — The recovery of judgment by a plaintiff, in an action for the wrongful taking and conversion of his goods and chattels, has the effect of transferring the pro- perty of the goods converted from the plaintiff to the defendant, if the judgment has been t>atisfied(r)- The plaintiff, by recovering damages for the wrong, loses his right of property in the chattel that has been converted ; and this transfer of the right of property dates back, by relation, to the tinae of the conversion. The damages recovered by the plaint " .is^Rinst the defendant are regarded as the price oi' the good that the defendant hath now the same property therein as tiic o f^'inal plaintiff had, and this against all the world" (s). Having c ice recovered judgment and satisfaction in respect of the goods, the plaintiff cannot recover again the same thing aguinst somebody else. His further remedy is altogether gone, and his claim satisfied (t). Seizure and sale hi/ the sheriff. — The right of the sheriff to seize property under a writ of execution formerly dated from the time of the delivery of the writ at the sheriff's office {u) ; but it has been enacted {v) that no writ of execution or attachment against the goods of a debtor shall prejudice the title to such goods acquired by any person bond fide and for a valuable consi- deration, before the actual seizure or attachment thereof by virtue of such writ, provided such person had not, at the time when he (>0 Boiccs V. Foster, 2 II. & N. 770 ; 27 L. J., Ex. 2G2. Taylor v. Boucrs, 1 Q, B. D. 291 ; 46 L. J., Q. B. 39. (o) Tharpe v. Slalluood, 5 M. & G. 777. (p) Foster V. Itates, 12 M. & W. 226. {q) Elworthy v. Saiici/ord, 3 H. & C. 330 ; 34 L. J., Ex. 42. (r) Cooper v. Shepherd, 3 C. B. 2"2. Holroyd, J., Morrin v. Robinson, 3 B. & C. 206. In re Scarth, L. R., U Ch. 234 ; 44 L. J., Bk. 29. («) Per Cur., Adams v. Brouqhtoii, Andr. 19 ; 6 M. & G. 640, n. Bylcs, J., Edmondson v. Nultall, 17 C. B., N. S. 280 ; 34 L. J., C. P. 102. {t) Brinsmead v. Harrison, L. R., 6 C. P. 584 ; 40 L. J., C. P. 281 ; aff. on appeal, on another point, ante, p. 94. See Ex, parte Brake, L. R., 5 Ch. D. 866 ; 46 L. J., Bk. 105. («) 29 Car. 2, c. 3, s. 16. [v) 19 & 20 Vict. c. 97, 8. 1. SECT. III.] KIGHTS OF PROPERTY IN CHATTELS. 505 482 acquired such title, notice that such writ, or any other writ by virtue of which the goods might bo seized or attached, had been delivered to, and remained unexecuted in the hands of, the sheriff, under- sheriff, or coroner (x). The ordinary course, in cases of seizure of goods by a sheriff under a ^. fa., is for the sheriff to sell by auction or by bill of sale ; but the law does not require the sale to be made in any particiUar manner. If the sheriff has the goods valued, and ♦^len delivers them by way of sale to the execution creditor for the amount of the valuation, this is a good sale of the property to h.m(y). In ordinary cases of sales by sheriffs there is no im- plied warranty of title on the part of the sheriff to the property he sells (s). In an interpleader suit between a claimant under a bill of sale from the sheriff and an execution creditor, proof of the bill of sale, with some evidence of a previous seizure of the chattels by the sheriff, is sufficient prima facie evidence of the title of the claimant (a). Executions levied on iheproperfi/ ofhanhnqAs — Garim/iee orders. — If execution issued against the debtor has been levied by seizure and sale of his goods under j rocess in an action in any court, or in any civil proceeding in the High Court, the debtor commits an act of bankruptcy (i). The Act of 18t)9 confined this act of bankruptcy to traders, and to process upon execution to the amoimt of 50/. The title of the trustee was held, under the Act of 1869, to relate back to the completion of the act of bankruptcy (c). Under the present Act the completion of the act of bankruptcy would appear to be seizure and sale. (See sect. 45, sub-s 2, infra.) By sect. 43, the bankruptcy of a debtor, whether the same takes place on the debtor's own petition or upon that of a creditor or creditors, shall be deemed to have relation back to, and to commence at, the time of the act of bankruptcy being committed on which a receiving order is made against him, or, if the bank- rupt is proved to have committed more acts of bankruptcy than one, to have relation back to, and to commence at, the time of the first of the acts of bankruptcy proved to have been committed by the bankrupt within three months next preceding the date of the prei-entation of the bankruptcy petition; but no bankruptcy petition, receiving order, or adjudication shall be rendered invalid (x) Gladstone v. radwick,Ij. R., 6 Ex. 203 ; 40 L. J., Ex. 164. llohson v. Thellmon, L. R., 2 Q. B. 642 ; 36 L. J., Q. B. 302. (y) Uornamann v. Bowker, 11 Exch. 760. (;) Morhy v. Attmboroiigh, 3 Exoh. 500. (a) Ilornidije v. Cooper, 27 L. J., Ex. 314. (b) Bankruptcy Act, 1883, a. 4. {c) Ex parte Villars, L. R., 9 Cb. D. 432. fi06 INJURIES TO KIGIITS OF rROrERTY. [ciLVr. VIII. I ^ 1'^; 483 by reuson of any act of bankruptcy anterior to the debt of the petitioning creditor. Sect. 45. (1.) Where a creditor has issued execution against the goods or lands of a debtor, or has attached any debt due to him, he shall not be entitled to retain the benefit of the execution or attachment against the trustee in bankruptcy of the debtor, unless he has completed the execution or attachment before the date of the receiving order, and before notice of the presentation of any bankruptcy petition by or against the debtor, or of the commission of any available act of bankruptcy by the debtor. (2.) For the purposes of this Act, an execution against goods is completed by seizure and sale; an attachment of a debt is completed by receipt of the debt (d) ; and an execution against land is completed by seizure ; or, in the case of an equitable interest, by the appointment of a receiver. By sect. 9, after the making of f receiving order (except as directed by the Act) no creditor to whom the debtor is indebted in respect of any debt provable in bankruptcy shall have any remedy against the property or person of the debtor in respect of the debt, or shall commence any action or other legal proceedings, unless with the leave of the court, and on such terms as the court may impose; but the section is not to affect the power of any secured creditor to deal with his security in the same manner as he could have done if the section had not existed. Where the debtor before coirmitting any act of bankruptcy paid a sum of money to the sheriff on account of the debt, and the judgment creditor assented to the payment, it was held that the latter was entitled to the money as against the trustee in bank- ruptcy (e). Bankruptcy — Order and disposition. — The general effect of bankruptcy in transferring the debtor's property to a trustee for the benefit of his creditors has already been considered (/). The peculiar effect of bankruptcy upon the goods and chattels of another, which, with the consent of the true owner, have been left in the. order and disposition of the bankrupt, will be treated of here. By sect. 44, sub-sect. (3) of the Act of 1883 (g) it is enacted that the property of the bankrupt, divisible amongst his creditors, (d) As to what is a receipt of the debt, see Butler v. Wearing, 17 Q. B. D. 182 («) Stoek V. Holland, L. B., 9 Ex. 147 ; 43 L. J., Ex. 112. Ex parte Brooke, L. E., 9 Ch. 301. (/) Ante, p. 239 et icq. (g) Which is substantially a ro- enact- ment of the 12 & 13 Vict. c. 106, s. 125. Mi SECT. III.] EIGHTS OF PKOrERTY IN CHATTELS. 507 J 484 shall comprise all goods being at the commencement of the bankruptcy in the possession, order, or disposition t)f the bankrupt in his trade or business, by the consent and permission of the true owner, under such circumstances that the bankrupt is the reputed owner thereof; but no chose in action, other than debts due, or growing due, to the bankrupt in the course of his trade or business, are to be deemed goods within this section. It is only the trustee of the bankrupt who can take advantage of this section; and, if he disclaims all interest in the goods, a third person cannot set up the trustee's title under this section against the true owner (/). Bankniptci/ — What things are comprehended under the tcord " goods J* — The word " goods " includes all chattels personal {j). It was held that the words " goods and chattels " in the corresponding section of the Act of 18G9 extended only to chattels personal, and did not embrace chattels real, leases, interests in land, or fixtures and things attached to the freehold ; and choscs in action, other than trade debts, are expressly excepted by the section {k). The object of the legislature was to prevent debtors from gaining a delusive credit by a false appearance of substance, which may be caused by the possession of personal chattels, as the possession and ownership generally go together ; which is not the case with regard to land and fixtures annexed to the realty (/). But movable machinery in buildings, all kinds of personal propert;} in possession, shares in newspapers (w*), stock in the public funds, patents for inventions, and all personal property assignable by deed at common law, aro within the section. Shares in a railway company are choscs in action (m). Prssession of the bankrupt. — The goods must be in the pos- session of the bankrupt with the consent of the true owner. A possession against the will or without the knowledge of the true owner will not vest the pioperty in the trustee (o). " There has been no case, nor ever will be, wherein a court of law or equity will do so severe a thing as to subject the property of one man to the debts of another without proof of the consent of the real (i) Meggy v. Imperial Discount Co., 3 Q. B. D. 711; 47 L. J., Q. B. 119. {j) Sect. 168 of Act of 1883. (k) This was otherwise under the former statutes ; see Uornbloiccr v. Proud, 2 B. & Aid. 327. As to trade debts, see Cooke V. Hemming, L. R., 3 0. P. 334 ; 37 L. J., C. P. 179. Leslie v. Guthrie, 1 Bing. N. C. 697. (/) Horn V. Baker,' East, 215. Ex parte Barclay, 6 De G., M. & G. 403 ; 25 L. J., Bk. 4. Ex parte Lloyd, 3 D. & C. 787. Ex parte Wilson, ^ ib. l\Z. Coombs V. Beaumont, 5 B. & Ad. 73. Hubbard V. Bagshaw, 4 Sim. 338. Bon' 'I v. M'Michael, 1 C, M, & R. 177. («0 See Longman v. Tripp, 2 B. & P. N. R. 67. («) Colonial Bank v. Whinney, 1 1 Ap. Cas. 426. (o) Ex parte Richardson, Buck, 488. Lingham v. Biggs, 1 B. & P. 88. Oliver V. Bartlett, I B. & B. 273. I J 1 >- .^ C I ^ ■= i If- ■\^ %i .CI !;S ! s ! Ill ill 508 INJURIES TO RIGHTS OF PROPERTY. [CIIAP. VIII. 485 owner to leave them in the power of the bankrupt (possession only not being sufficient), or a fdches in letting them remain there 80 as to got him a false credit " (p). Therefore the property of infants in the hands of traders, who deal with it as the reputed owners, will not pass to the trustee for the benefit of creditors, by reason of the incapacity of infants to give tlieir consent and permission within the intent and meaning of the statute (//), But, if the real owner is of full ago and capable of acting for himself, it should be made notorious "to the world in which the bank- rupt moves" that the latter holds the property adversely, and without the consent or permission of such owner (?•), or the latter should have done all that can reasonably be expected of him to obtain possession of the property prior to the bankruptcy (.s). If the goods have been placed in the possession of the bank- rupt by a person who was himself only the bailee, the consent of the latter to the bankrupt's possession is not the consent of the true owner (^). A seizure by a sherifF, under an execu- tion against a bankrupt, of the goods and chattels of a third person in the possession, order, and disposition of the bankrupt, does not in any way withdraw the goods from the possession, order, and disposition of the bankrupt, so as to interfere with the title of the trustee (m). If the true owner bond fide demands possession with a view of taking possession before the bankruptcy, though from no fault of his own he fails to get it, the goods are not in the possession of the bankrupt with his consent after the demand has been made {x) ; and, if the goods are in the hands of a warehouseman to the order of the bankrupt, and a demand has been made upon the bankrupt, that is sufficient, although no demand has been made upon the warehouseman {y). Goods obtained by fraud before the act of bankruptcy, and re- maining in the bankrupt's possession at the time he becomes bankrupt, are not in the possession, order, and disposition of the latter with the consent of the owner. If, therefore, the bankrupt has obtained possession of goods through the medium of a frau- dulent and pretended purchase, never intending to pay for them, and then becomes bankrupt, with the goods in his possession, [p) Ld. Hardwicke, West \. Skip, 1 Ves. sen. 243. Parke, B., Belcher v. Bellamy, 2 Exch. 310 ; 17 L. J., Ex. 222. {q) Ld. Eldon, Tiner v. Cadell, 3 Esp. 89. (»•) Best, J., Ex parte Enderby, 2 B. & C 398 (»j Smith V. Toppiiiff, 5 B. & Ad. 674. (t) Eraser v. Swansea Navigation, ^r., 1 Ad. & E. 354. («) Barrmo v. Bell, 6 El. & Bl. 540 ; 25 L. J., Q. B. 3. E.r parte Edey, L. R., 19 Eq. 264 ; 44 L. J., Bk. 66. Ex parte Foss, 2 De G. & J. 230. (*) Smith V. Topping, 5 B. & Ad. 674. (v) Ex parte Ward, L. E., 8 Oh. 144 ; 42 L. J., Bk. 17. SECT. III.] RIGHTS OF TROrERTY IN CHATTELS. 509 486 they may be reclaimed by the vendor, as there is no consent of the true OAvner, in such a case, the transaction being a cheat, and fraudulent altogether on the part of the buyer (s). Clutttcls— Commencement of the banhrtiptcy. — By sect. 43 of the Act of 1883, the bankruptcy commences from the committing of the act of bankruptcy on which the receiving order is made, and not from the completion of the act of bankruptcy, as in the Act of 18G9, sect. 11. That section extended to chattels which were in the order and disposition of the bankrupt at tlio time of his com- mitting any act of bankruptcy capable of supporting the adjudi- cation, although such act Avas prior to the act on Avhich the adjudication is founded («). If, before the adjudication, and with- out notice of an act of bankruptcy, the true owner had actually taken the goods out of the possession, order, and disposition of the bankrupt, his title would prevail over that of the trustee (i), although he might have received notice of the debtor's intention to commit an act of bankruptcy ; for he was not bound to inquire whether the act had been committed, but was entitled to avail himself of his remedies just as if he had received no such notice (c). So, if, before adjudication, and after the act of bankruptcy, the owner had, bond fide and without notice of the act of bankruptcy, done anything which, before an act of bankruptcy, would have been sufficient to determine his permission and consent to the goods remaining in the possession, order, and disposition of the bankrupt, so that a subsequent act of bankruptcy would not have subjected the goods to be dealt with under the clause respecting reputed ownership, his title would prevail, although he had not, before notice, succeeded in obtaining the actual possession of the goods. If, before the date of the adjudication, and before notice of an act of bankruptcy, ho had bond fide demanded the goods, and, communicating with the bankrupt, had done that which showed that the goods did no longer, with his consent and permis- sion, remain in the possession, order, and disposition of the bankrupt, his title would not be defeated by a prior, secret act of bankruptcy. But a mere intention to demand the goods, and to get possession of them, was not a " dealing " within the meaning of the former statutes (f/) ; and, if his consent had not been withdrawn, and it appeared that, at the time he got back his goods, he was cognizant of an act of bankruptcy having been committed by the bankrupt, (z) Load V. Green, 15 M. & W. 216. («) SlmiDfeM V. Cubit t, 2 De O. & J. 222 ; 27 L. J., Ch. 260. (b) Graham v. Furber, 14 C. B. 134. (c) Ex parte Arnold, L. R., 3 Ch. D. 70; 45L. J., Bk. 130. (rf) Brewin v. Short, 5 El. & Bl. 237. Young v. Hope, 2 Exch. 109. Tar'wnte v. I'tnncll, 2 Moo. & Rob. 678. The cor- responding section of the Act of 1883 is sect. 49. ■— I 610 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. O I, , 1.'* i iiti: I 487 the title of the trustee would prevail, and would relate bock to the period of the commission of such act of bankruptcy (e). Bankniptcy— llepHtcd owitenhip. — The doctrine of reputed ownership does not require any investigation into the actual state of knowledge or belief, eitlier of all the creditors or of particular creditors, and still less of the outside world who are no creditors at all, as to the position of particular goods. It is enough for tlie doctrine, if those goods are in such a situation as to convey to the minds of those who know that situation the reputation of owner- ship, that reputation arising from the legitimate exercise of reason and judgment on the knowledge of those facts which are capable of being generally known to those who choose to make inquiry on the subject (/). The possession of the goods and chattels by the bankrupt must be a possession as reputed owner. A mere temporary oi^stody, or the mere possession without reputation of ownership, will not vest the property in the trustee {g). If it is notorious that furniture in the possession of a bankrupt never was his property, but was hired by him with the house in which ho resides, there will be no reputation of ownership from his possession of the furniture (A). Moreover, the goods must be in the sole possession and sole reputed ownership of the bankrupt. Therefore, where two partners, one of whom was an infant, com- mitted an act of bankruptcy, and the adult partner was adjudi- cated bankrupt, it was held that the machinery and trade fixtures in the house where the business was carried on, which belonged to the landlord, and were with his consent in the possession of the firm, did not pass to the trustee in the bankruptcy (t). The Act of 1869, s. 15, sub-s. (5), contained the words "being a trader," but the Act of 1883, s. 44, substituted for these words the words " in his trade or business," so that while the doctrine of reputed ownership now extends to other persons than to traders, it only extends to property in the debtor's trade or business. The live and dead stock, and implements of husbandry of a person who occupies a residential property, and engages in farming and market gardening for his pleasure, but at a profit, are not goods in his order and disposition in his " trade or business ; " but they are so if his primary intention is profit (k). Shares in a waggon company, deposited with a banker as Beourity for an overdraw, are not goods in the order and disposition of a stockbroker, silversmith and watchmaker "in his trade or («) Famett v. Feame, 6 Q. B. 28. BeBlop V. Baker, 8 Exch. 423 ; 20 L. J., Ex- 360- ^ ^ „ ^ (/) Ex parte Watkins, L. R., 8 Ch. 620 ; 42 L. J., Bk. 50. Fx parte Vaux, L. R., 9 Ch. 602 ; 43 L. J., Bk. 113. iff) Trismall v. Zovegrove, 6 L. T., N. 8. 329 ; 10 W. R. 627. (h) In re Shaw, 8 L. T., N. S. 336 (») Ex parte De 42 L. J., Bk. 20. parte Domtan, L. R., 8 Gh. 61: ,Bk. 20. (A) In re IFallis, 14 Q. B. D. 950. SKCT. III.] RIOIITS OF PROPERTY IN C1TATTEL8. ill 488 business " (/) ; nor, as it would sooiu, are shares in a railway company bought with partnership money for the purposes of the partnership (««). Where a trader is in possession at his place of business of articles, the inference from the nature of which is, that they are not connected with the business, it will require very strong evidence to prove reputed ownership («). Bauki'uptci/ — Itcpnted Ownership — Goods once owned by the hank' rupt. — Where the bankrupt has once been the actual and visible owner of goods and chattels, and has made over all his right and interest in them to a third person, either absolutely or by way of mortgage, and remains in possession of the things so transferred, the continuance of possession raises a strong presumption of the continuance of ownership (o) ; so that, if the goods are not taken out of the possession of the mortgagor before the mortgagee has notice of an act of bankruptcy (jo), they will pass to the trustee. This is the case where a trader mortgages his furniture, goods and chattels, and stock-in-trade, and the mortgaged property is let to him by the mortgagee to be used for hire, or is allowed to remain in his hands notwithstanding the mortgage, and continues in his possession at the time of the adjudication {q) ; where the tenant of a mill gives his landlord by deed a lien upon the fixtures and fixed machinery of the mill (r) ; where the goods and chattels of a trader are taken in execution by a creditor, and the latter re- ceives an assignment of them from the sheriff, and allows the goods to remain in the trader's dwelling-house, and to be used by him for hire, down to the time of the adjudication (s) ; where a person, who is forbidden to trade in his own name, ships, and warehouses, and deals with goods in the name of the bankrupt, the latter not being a commission agent for sale, and the course of dealing not being according to the ordinary usage of trade {t) ; where a share- holder in a joint-stock company or a railway company deposits the certificates of his shares with the creditor as a security for the repayment of money advanced, undertaking to execute a transfer of the shares when called upon, and the shares continue standing in his name, in the books of the company, notwithstanding the (l) In re JenhinsoH, 16 Q. B. D. 441 ; 64 L. J., Q. B. 601, {m) Colonial Bank v. Whinncy, 11 Ap. Cas. 426. At all events they are ' ' choses in action, ' ' and are therefore -within the proviso of the section. See S. C, ante, p. 484. (»j) Ex parte Lovering, 24 Ch. D. 31 ; 63 L. J., Ch. 961. (o) Ex parte CastU, 3 M. , D. & De G. 1 24 . ( p) Young v. Hope, 2 Exch. 105. {q) Ryall V. Rowles, 1 Ves. sen. 360. Kirkley v. Hodgson, 1 B. & C. 698. Freshney v. Carrick, 1 H. & N. 661. Jn re Hams, 10 Jr. Ch. R. 100. Spaek- man v. Miller, 12 C. B., N. S. 659; 31 L. J., 0. P. 309. Ex parte Zoveriny, L. R., 9 Ch. 621 ; 43 L. J., Bk. 116. (r) Shuttleworth v. Hernaman, 1 De Or. & J. 322. .is to movable machi- nery, 6Gepost, p. 490. (*) Lingham v. Biggs, 1 B. & P. 82. Br y son v. Vylie, ib. 83 n. (a). Lingard V. Messiter, 1 B. & C. 312. {t) Gordon v. East India Company, 7 T. R. 228. 512 'i : I.; 11 'ft •a Si INJURIES TO RIGHTS OF PROPKRTV. [cHAP. VIII. 1 489 asHi'gnniont or deposit of tho certificates, and no notice of tlio assignment has been given to the company («). But, if the com- pany docs not permit transfers to be made by shareholders without tho production of the certificates of tho proprietorship of tho shares, and those certificates are not in tho possession or under the control of tho bankrupt, there will bo no reputation of owner- ship, from tho circumstance of tho shares continuing to stand in his name (j-) ; and, if tho change of ownership has been made notorious to *' tho world in which the bankrupt moves," the pre- sumption of ownership from the continuance of possession will be rebutted (//). Nor does tho clause apply to the case where a person becomes a dormant or secret partner of a firm in partnership, and permits tho partnership stock, furniture, and effects to bo in the possession and under tho control of the ostensible partners, who become bankrupt ; for there must be a real as distinguished from an apparent owner ; and in the case supposed the possession i8 quite consistent with the real title (s). But, where one man, who is the real owner, forms a partnership consisting of two or three persons, and allows them to have the apparent possession and ownership of the property, the doctrine of reputed ownership will apply. There, the real owner being one person, some other persons, who are not the real owners, have acquired by his consent the reputed ownership and the apparent possession ; and it can make no difference that he himself is one of the firm who have the apparent possession (a). So, if one of two partners in trade mortgages the plant, stock-in-trade, debts, and profits, &c., to secure the repayment of a sura of money lent by the other, and the mortgagor is permitted to continue in possession of the things mortgaged and to retain the management and visible ownership of them, and becomes bankrupt, the trustee will be entitled to claim the mortgagor's share of the partnership effects discharged of the mortgage-debt (ft). Where a registered mortgagee of a ship, having deposited with a creditor the instrument of mortgage, («) Ex parte Kiittbig, 2 M., D. k Dc G. 30i. Ex parte Vallaiicc, 2 Deac. 354. Ex parte Lancashire Canal Co., 1 D. & C. 423. Ex parte DoHUon,1(i'Rfi&w.\''^. Ex parte Union Bank of Munchcxter, L. K., 12 Eq. 354; 40 L. J., Bk. 67. Tho same rule has been held to apply, under the repealed statutes, to the deposit by way of mortgage rrf a policy of insur- ance where no notice, or no sufficient notice, has been given to the company. Edwards v. Martin, L. R., 1 Eq. 121 ; 36 L. J., Ch. 186. And see Ex parte Caldwell, L. R., 13 Eq. 188; 41 L. J., Bk. 55. As to what is sufficient notice, see Ex parte Agra Bank, re Worcester, L. R., 3 Ch. 666 ; 36 L. J., Bk. 23. {x) Morris v. Cannan, 31 L. J., Ch. 425. Ex parte Harrison, 3 Deac. 196. Ex parte Masterman, 2 Mont. & Ayr. 212. Ex parte Langmcad, 20 Beav. 25. Ex parte Liltlidale, 6 Do G., M. & G. 714 ; 24 L. J., Bk. 9. Exparte Boulton, 1 Do G. & J. 179. Ex parte Richardson, 3 Deac. 603. Colonial Bank v. Whinney, 11 Ap. Cas. 42G. (y) Muller v. Moss, 1 M. & S. 335. \z) Reynolds v. Bowleg, L. R., 2 Q, B. 41 ; 36 L. J., Q. B. 247. (o) Ex parte Hayman, 8 Ch. D. 11 ; 47 L. J., Bk. 64. (*) Rijall V. Rnwles, 1 Ves. sen. 368. West V. Skip, ib. 243. Ex parte Stephen- ton, 1 De G. 686; 17 L. J., Bk. 6. Ex parte Bell, 1 De G. 577 ; 17 L. J., Bk. 9. " SECT. 111.] RIGHTS OF PKOrKKTY IN CIIATTKLH. r,v\ 490 subsequently became bankrupt, it was hold that such (Icposit took the ship out of the order and disposition of the bankrupt, and constituted the creditor an equitable mortgagee (r). Movable machinery placed in a mill or factory does not couso to be a personal chattel, if it is capable of being removed ot any time without injury cither to itself or to the building; ond, if such machinery is left in the hands of a mortgagor who becomes banknipt, it will be considered to bo in his reputed ownership {tt). But, if the machin'^ry is annexed to the freehold, ond transferable therewith, it is not within the operation of the reputed ownership clause, which is confined to chattels personal, and does not extend to fixtures and things annexed to the freehold ; so that, if the owner in fee of a manufactory or buildings containing fixtures mortgages the buildings and fixtures, and is permitted to remain in possession of the mortgaged premises, and to carry on his trade there, and then becomes bankrupt, the fixtures annexed to the realty will not pass to the trustee {e), although they have been mortgaged separately from the building in which they are con- tained (/). liankniptcy — lirpiited ouiicrnhip — Goods sold by the bankrupt and left in his possession. — If the bankrupt gets liis living by buying and selling goods and chattels, and it is a known custom of trade for the vendor to keep possession after a sale of the things sold, until it is convenient for the purchaser to remove them, possession under such circumstances will not raise a presumption of owner- ship {g). Also, if, after the sale, the bankrupt removes the articles away from the rest of his stock-in-trade, and puts them away in his cellars, or warehouses, or in some private place of deposit, and there sets them apart for the purchaser, and enters the sale in his books, they are no longer, after such appropriation has been made, in the possession, order, or disposition of the bankrupt within the meaning of the statute ; " for they are not then in the possession of the bankrupt under such circumstances as to deceive the creditors by the appearance of their forming part of that stock to which they might give credit "(//), But, if the things are left upon the bankrupt's premises undistinguishable from his stock- (p) Lacon v. Liffen, 4 GifF. 75 ; 32 L. J., Ch. 25, 315. (rf) Shuttkivorlh v. ITernaman, 1 De G. & J. 322. JFaterfall v. Penistotie, 6 EI. & Bl. 889 ; 26 L. J., Q. B. 100. ((•) Horn V. Baker, 9 East, 216. Ex parte Lloyd, 3 D. & C. 787. Ex parte Wilson, 4 ib. 143. Coombs v. Beaumont, 5 B. & Ad. 73. Hubbard v. Bagahau; 4 Sim. 338. Boydell v. M'Miehael, 1 C, M. & R. 177. Walmsleii v. MUm, 7 C. B., N. S. 116; 29 L. J., C. P. 97. Ex parte Barclay, 6 De G., M. & G. 403. (/) Whitmure v. Empson, 23 Beav. 313. (//) Priestln/v. Pratt, L. R., 2Lx. 101; 36 L. J.. Ex. 89. Ex parte Watkins, L. R., 8 Ch. 520 ; 42 L. J., Bk. 50. Ex parte Vaux, L. R., 9 Ch. 602 ; 43 L. J., Bk. 113. {h) Ex parte Marrable, 1 Gl. & Jam. 402. Ex parte Dover, 2 M., D. & De G. 259. L L ^ .?n) MantoH v. Moore, 7 T. R. 71. Brown v. Heatheote, 1 Atk. 169. («) Flyn v. Mathews, 1 Atk. 186. Parke, B., Bekher v. Bellamy, 2 Exoh. 303 ; 17 L. J., Ex. 222. PKCT. III.] RI0FIT8 OP PROPKUTY IN ClfATTELS. 615 or 492 voflsol at floa, tho bill of lading, dolivcrj'-onlor, or wlmtovcr dooumcnts of titlo may l)o necessary to ostahlisli tho transfer of tho ownership, mnst havo been delivered to tho purchaser prior to tho adjudication (o) ; and, in tho case of transfers and assignments of ships, the provisions of tho Registry Acts must bo complied with, and actual possession taken of tho vessel on tho first practicable opportunity. Baukniptcy — Reputed oiniershij) — Ited'tHtered hill of sale. — If an owner of chattels transferred them by bill of sale to another, and remained in possession of tho property, tho registration of tho bill of sale did not formerly prevent them from being in his reputed ownership and passing to tho assignees (/;). Tho 20th section of tho Bills of Sale Act, 1878 (y), enacted that chattels comprised in a bill of sale which had been and continued to be duly registered under that Act were not to bo deemed to bo in the possession, order, or disposition of the grantor of the bill of sale. This section has been repealed as regards bills of sale by way of security, and the former law is restored (r) as to such bills, but bills operating as an absolute transfer are still within the Act of 1878 («), and so are bills registered before the commencement of the Act, and nol avoided by non-renewal or otherwise (J). "What is called the " hire system," that is, the hiring of furni- ture under an agreement to pay a certain sum for the hire of furniture by instalments, the furniture to become the property of the hirer upon all tho instalments being paid, but until then to be liable to seizure on non-payment of the instalments, is, as regards hotel-keepers, a custom of which the courts will take judicial notice, and does not operate as a bill of sale under the Act of 1878 (»). But the general public may assume, notwithstanding the prevalence of the '* hire system," that a householder is the real owner of the furniture in his house, especially if he was known to be the owner of it previously (r). Bankruptcy — Reputed ownership — Goods and chattels which hare never been the property of the bankrupt. — Where it is shown that the property in possession of the bankrupt at the time of the adjudica- tion never belonged to him at all, and was confided to him only for a temporary and special purpose, slighter circumstances will rebut a presumption of ownership arising from possession than in (o) Belcher v. Capper, 4 M. & G. 651. lempriire v. Pasley, 2 T. R. 496. {p) Stamfeld v. Cubitt, 2 De G. & J. 227 ; 27 L. J.. Ch. 266. Badger v. Shaw, 2 El. k El. 472 ; 29 L. J., Q. B. 77. Ex parte Harding, L. R., 16 Eq. 223 ; 42 L. J., Bk. 30. (q) 41 & 42 Vict. o. 31, 8. 20. ((•) 45 & 46 "Vict. c. 4^. s. 15. (*) Swift v. Pannell, 24 Ch. D. 210; 53 L. J., Ch. 341. (0 Ex parte Izard^ 23 Ch. D. 409 ; 62 L. J., Ch. 678. (it) Crawcoiir v. Salter, 18 Ch. D. 30 ; 50 L. J., Ch. 495. Ex parte Tiirquand, 14 Q. B. D. 636 ; 54 L. J., Q. B. 242. (i) Ex parte Brooks, 23 Ch. D. 261. I. I. l;l; f^:::' I ■>»'• ' ■' ' s ■A 11 516 INJURIES TO RIGHTS OF PROPERTY. [cHAP. VIII. 493 those cases where the property originally belongerl to him, and has been subsequently sold and mortgaged without any change of possession {x) . If goods and chattels have been sent pursuant to order, for the inspection and approval of an intended purchaser, and the latter becomes bankrupt with the goods in his hands before any contract of sale has been made, the goods so sent are not in his possession as reputed owner (//). Whenever the possession, taken in connection with the custom and usage of trade and the surrounding circumstances, " is consistent with the fact of the possessor being absolute owner, and also of his not being absolute owner, the mere possession ought not to raise an inference in the mind of any cautious person acquainted with the usage, that the person in possession is the owner" (s). Therefore, where there exists a custom which is known, that property standing in the name of a liian in the books of a public company may only be his nominally, while the real right to it may be in another person, the reputation of ownership does not attach to the mere nominal possession. This is the case with money in the funds, and shares in railway companies standing ia the name of a person as trustee {a) . Where it is the known custom and usage at a watering-place for houses to be taken ready furnished as 'veil as unfurnished, and for carriages and horses to be let by the job, day, week, or mouth, the mere possession of furniture by the tenant of a house, or of a car- riage and horses by an inhabitant, will oi itself raise no presumption of ownership in the possessor {b). Whenever the custom to hire as well as to buy the plant, machinery, and implements used in the trade which the bankrupt carried on, is shown to be so general and notorious in the trade that those who had dealings with the bankrupt, "the world in which he moved " might reasonably be provoked to inquire, before giving the bankrupt credit, whether he was the owner of them or not, there is no presumption of ownership from the possession of them. This is the case in the coal-mining trade, where it is tho notorious custom of tho owners of collieries to demise, not only the colliery, but also the steam-engines, plant, and machinery necessary to get out the coal (c) ; in the coal-lighterage trade, where it is the custom for the owners of barges and lighters used to discharge coal to let such lighters out to hire, and to suffer the names of the hirers to be painted upon them {d) ; also in the brewing (x) Ex parte Wiggins, 2 D. & C. 270. As to the "hire system," see supra. (y) Gibson v. Brag, 8 Taunt. 76 ; 1 Moore, 619. In re Ashton, 1 Fonb. N. R. 258. {z) Abbott, C. J., Storcr v. Hunter, 3 B. & C. 376 ; 24 L. J., Ex. 46. (rt) Ex parte Walkins, 4 .D. & C. 87. Ex parte Stewart, 34 L. J., Ch. 6. {/)) Burton v. Hughes, 9 Moore, 334. ((■) Storer v. Hunter, 3 B. & C. 368 ; 24 L. J., Ex. 46. {d) Watson v. I'eache, 1 Bing. N. C. 327 ; 1 So. 149. Horn v. Baker, 9 East, 239. i 6ECT. III.] RIGHTS OF rROPEliTV IN CHATTELS. 517 484 trade, where it is the notorious custom of brewers to hire their vats, barrels, coppers, and brewing utensils; and in the milting trade, Avhere the malting agents are notoriously not the owners of the barley or malt on their premises (e), and in the wine trade, where the purchaser leaves his wine in a bonded warehouse (/) ; and in the hosiery and lace trade, where it is the notorious custom for stocking-frames and masses of machinery to be let out to hire to the working hosiers, weavers, and mechanics. But the custom must be shown to be general and notorious in the trade, otherwise the presumption of ownership arising from the possession and use of such things will not be rebutted (g), Baiikniptci/ — Reputed ownership — Possession hy manufacturers, uorfcmen, and depositaries. — Possession by manufacturers and work- men of goods and chattels, and of raw materials furnished to them by their employers to be manufactured, worked up, or re- paired, in the way of their trade, raises no presumption of owner- ship. This has been held to be the case with the timber of the carpenter, delivered to him to be converted into waggons; the cloth of the tailor, sent to him for the purpose of being made into garments ; the gold of the goldsmith, sent to him to be worked up in the course of his trade ; carriages sent to the coach-maker to be repaired ; and machinery and chattels manufactured and made to order, and left on the manufacturer's premises after they have been paid for by the employer or purchaser, that they may be altered or repaired, or in order that the purchaser may send for them and convey them away (//). Possession by depositaries in the ordinary course of trade, where it is the custom for persons to let out vaults, stores, warehouses, and rooms for the purpose of receiving, storing, and taking care of pictures, furniture, or mer- chandise, for hire and reward, is not a possession by such deposi- taries as reputed owners of the goods entrusted to them for safe keeping. Goods and chattels held by the bankrupt at the time of his bankniptcy as a security for the repayment of money advanced by him to the owners thereof, are not in the reputed ownership of the bankrupt ; but the trustee is entitled to all the rights of the bankrupt over them. Goods deposited in the hands of a bankrupt for a specific purpose, or to be applied in a particular way in the ordinary course of trade, and held by him no longer than is rea- sonably necessary to carry into effect the trust reposed in him, are not in his reputed ownership ; nor is a sum of money in a bag, (e) Harris v. Tnieman, 9 Q. B. D. 264. . (/) In re Faun, L. R., 9 Ch. 602 ; 43 L. J., Bk. 113. (y) Priestley y. Pratt, L. R., 2Ex. 101. Knowle* v. Horsfall, 5 B. & A. 134. (/() Carruthers v. Payne, 2 M. & P. 429. Bartram v. Payne, 3 C. & P. 177. Wilkins V. Bromhead, 6 M. & G. 963 ; 7 So. N. R. 921. Holderness v. Rankin, 2 De G., F. & J. 258 ; 29 L. J., Ch. 793. I '■ ■ • '* \- '^ , 'V *■ •* ■ ^■' :»: ; *■ \ s . il' •»» \r ' S> kt If ,«* r s si *>' 1 s F' 4 !l' 'CI .1 ,1 f v ;l if 618 INJURIES TO RIGHTS OF I'UOrERTY. [CHAP. VIII. 496 piu'se, or box, deposited in the hands of a bailee for a special purpose, and set apart by the latter, and kept distinct from his own moneys and effects ; but, if the money is taken out of the bag or box and used by the bailee, and mixed with his own moneys, it will form part of his general estate, and the amount will be a debt due from him to the bailor, Avhich must be proved under the bank- ruptcy (j). Where a custom of holding certain goods on hire is relied on to take the goods out of the order and disposition of a bankrupt, it must be proved to have existed so long and to have been so extensively acted upon that the ordinary creditors of the debtor in his trade may be reasonably presumed to have known it {j). Such a custom has been held to have been established in the case of pianos (/.). Baulin(j)tci/ — Reputed ownership — Possession of goods ami chattels hy factors and commission agents for sate in tbe ordinary course of their trade and business is not a possession by them as reputed owners, although they sell theu' own goods as well as the goods of other persons, and all are confounded and mixed together, so that it is impossible to tell which goods belong to them and which belong to their customers. Persons selling goods on commission must have the goods of other people in their possession whilst carrying on their calling ; and their possession is known not to be necessarily their own possession as owners. If it is the custom of shopkeepers in certain trades to receive the goods of third persons, and expose them for sale in their shops for a certain hire or com- mission paid by the owners of such goods, the things so received for sale are not, in the case of their bankruptcy, in their possession as reputed owners (/). Booksellers and publishers, for example, who publish and sell books on commission for the authors and owners thereof, have not the reputed ownership of the books they sell, although the books are mixed with their own books, and are not to be distinguished from their general stock-in-trade {m) ; nor coach- makers, who receive and exhibit in their shops and warehouses coaches for sale (») ; nor watch and clock-makers, who receive watches to be repaired and sold for their customers (o). But, if it (i) r«) Carruthers v. Payne, 2 M. & P. 441. (o) Hamilton v. Bell, 10 Exch. 545 : 24 L. J., Ex. 46. ■ SECT. III.] KIGHTS OF PKOPERTY IN CHATTELS. 619 496 is not the custom for persons carrying on the trade exercised by the bankrupt to sell goods on commission, or if the whole stock-in- trade of a retail dealer is furnished to him' by a wholesale house, and he trades therewith apparently on his own account, such stock- in-trade and goods will be in his possession, order, or disposition as reputed owner (/>). If the goods have been sold by the factor, and not paid for at the time of his bankniptcy, the ow er or principal should give notice to the purchaser of the position in which he stands, and require the price to be paid to himself ; and if, after such notice has been received, the purchaser pays over the money to the bankrupt factor, or his trustee in bankruptcy, the pay- ment will be no answer to an action by the principal for the money. If, after the bankruptcy, the trustee recpives the money, it may be recovered from him by the principal (q). If the factor has sold the goods, and received money by way of payment which is ear-marked, and can be identified, or which he has put into a bag, box, or parcel, set apart for his principal or employer, the money thus set apart is not in his possession, order, or disposi- tion as reputed owner; but, if it has been mixed with the general moneys of the bankrupt, it will form part of the bank- rupt's estate, to be administered by the trustee, and the prin- cipal must then come in as a creditor upon the estate for the amount, as a ucbt due to him from the bankrupt at the time of his bankruptcy (r). The Act of 18G9, s. 15, sub-s. (5), provided that the property of the bankrupt divisible amongst his creditors should include all goods of which he was the reputed owner, "or of which he has taken upon himself the sale or disposition as owner." These words are omitted in sect. 44, sub-s. (iii) of the Act of 1883, and the words used are : " under such circumstances that he is the reputed owner thereof." Bauhruptcy — Eeputed ownership — Pofsscssion by bankrupt trus- tees. — Goods and chattels of which the bankrupt is possessed as trustee, do not pass to the trustee in bankruptcy as his own goods (s) ; nor is his possession of them a possession with the consent and permission of the true owner within the meaning of the statute. This is the case with respect to the possession by trustees of govemiient stock and shares in the public funds, and joint-stock companies, &o., whether the trust does or does not 497 appear upon the bank books, or the books or register of the (p) Livesay v. Hood, 2 Camp. 83. Shaw V. Hartcy, 1 Ad. & E. 920. {q) Ex parte Fauli, 3 Deac.^lGO. Ex parte Murray, Cooke's B. L. 379. {>•) £x pat te Dumas, 2 Ves. sen. 685 ; I Atk. 23-2. Scott V. Stirmaii, Willes, 400. Tooke v. I[oiUiigHorth, 5 T. E. 227. Godfrey v. Fnrzo, 3 P. Wms. 185. Whitecomb v. Jacob, 1 Salk. 160. Smith V. Hudson, 31 L. J., Q. B. U5. («) Sect. 44 of Act of 1883, .^T 620 INJURIES TO RIGHTS OF PROPERTY. [CIIAP. VIII. m m II 5 s si company (ii). However, where the trust has not been created by a third person, but by the cestui que trust, or person beneficially interested, himself, who has clothed the bankrupt trustee v/ith the apparent ownership of shares in a public company, by buying them in the name of the latter, and procuring him to be registered as a shareholder, and permitting him to have possession of the scrip certificates, and to attend the meet' gs of the company, and vote as owner, there may be an apparent ownership with the con- sent of the true owner, within the meaning of the statute ; for a delusive credit may be occasioned by a secret trust of that descrip- tion (j-). r-operty of testators and intestates, held by executors and administrators, in the ordinary course of their administra- tion, is held by them as trustees, and does not, therefore, pass to the trustee for the benefit of creditors in case of their bank- ruptcy (y). But, if they are allowed to continue in possession of the trust property for several years, and to trade with it, to all appearance, on their own account, by the persons who are entitled to dispute their possession and call them to account, the property will be deemed to have been in the possession of such executors, &c., as reputed owners, with the consent of the true owners, within the statute (s). Bankruptcy — Reputed ownership — Possession by a bankrupt hus- band of property settled on the wife. — Possession by the bankrupt of furniture belonging to the trustees of his wife's ante-nuptial marriage settlement, is not a possession by him with the consent of the true owner, within the meaning of the statute (a) ; nor possession by the bankrupt's wife of cows and stock-in-trade, held by trustees under a bond fide settlement for her separate use, unless the bank- rupt has himself traded with the trust property, and got it into his own hands {b). Goods and furniture belonging to a woman who has passed herself off in the world as the wife of a bankrupt, have been held to be in his possession as reputed owner (c). A woman, however, married after the 1st January, 1883, will be entitled to hold all property, as well present as after acquired, as her separate 498 property {d), and every woman carrying on a trade separately from her husband is, with respect to her separate property, subject to i («) Ex parte Rogers, 25 L. J., Bk. 41. Ex parte IFitham, 1 M., D. & De G. 624. I'iiiketl V. Wright, 2 Hare, 120. Ex parte Stewart, 34 L. J., Ch. 6. (x) Ex parte Burbridgc, 1 Deao. 142. Ex parte Ord, ib. 170. (v) Ld. Mansfield, Howard v. Jemmett, 3 Burr. 1369. Ludlow v. Browning, 11 Mod. 139. {£) Fox V. Fisher, 3 B. & Aid. 136. Ex parte Thomas, 3M., D. & De G. 40, Kitchen v. Ibbetson, L. R., 17 Eq. 452 ; 43 L. J., Ch. 58. {a) Simmons v. Edtcards, 16 M. & W. 838. Ashton v. Blackshaw, L. R., 9 Eq. 510; 39 L. J., Ch. 205. (/i) Jarman v. Woolloton, 3 T. R. 618. Haselinton v. Gill, ib. 620 n. (a). Ex parte Martin, 19 Vea. 493. ((•) Mace V. Cammel, Lofft, 782 ; Cowp. 232. {d) Married Women's Property Act, 1882, s. 2. SECT. III.] RIGHTS OF PROPERTY IN CHATTELS. 521 ) the bankruptcy laws in the same way as if she were a feme sole (e). A loan by her to her husband for the purpose of his trade or business (/) is an asset of his estate, subject to her claim for a divi- dend after other creditors are satisfied {(/) . Injuries fo propcrfi/ — Cliatteh — Trespass. — If one man meddles with the goods and chattels of another, either by laying hold of, removing, or carrying away inanimate things, or by striking, chasing, or driving cattle, sheep, and domestic animals in whioh the owner has a valuable property, he is guilty of a trespass, and is responsible in damages, unless the act can be justified on the ground that it was done in necessary self-defence of the person, or of propei-ty, or of one's absolute or relative rights, or in obedience to some legal or personal authority, or can be excused on the ground that it was the result of inevitable accident, or was caused by the negligent or wrongful act of the plaintiff himself ; as where a man wrongfully suffers his cattle to trespass upon my land, or leaves thereon com or hay which he ought to have removed, and his cattle got injured, or his corn or hay is eaten by my beasts. In these cases he has no remedy for the injury, as it was caused by his own default (//). If a chattel has been lost by one man and found by another, the finder has an implied licence or authority from the owner to take the chattel and keep it for his use ; and, therefore, it is no trespass, if he bona fide removes it to a place of security («'). But, though the taking of a chattel may be lawful in the first instance, yet, if the person who has taken it abuses it, uses it, or wastes it, he moy render himself a trespasser ab initio, and disable himself from justifying or excusing the original taking, as well as any of his subsequent dealings with the property (h). If a man's goods and chattels obstruct me in the exercise of my right of way, I have a right to remove them. If he places a horse and cart in the way of the access to my house, or before my door, so that I cannot drive up to it, I have a right to lay hold of the horse and lead him away, and, if necessary, to whip him to make him move on (/). So, if a person's goods are placed on my ground, I may lawfully remove them (/») ; and, if his cattle or sheep come upon my land, I may chase them and drive them out. 499 Where the defendant with a little dog chased the plaintiff's (<•) Sect. 1, sub-sect. (5). A general power of appointment is not "separate property." Ex parte Gilehrixt, 17 Q. B. D. 621. ( /) See In re Genese, 16 Q. B. D. 700 ; 55 L. J., Q. B. 118. (y) Sect. 3. (A) TFebb v. Taternoater, Godb. 282, pi. 401. Faniwr v. Hunt, Brownl. 220. (i) hack V. Clarke, 1 Roll. Rep. 130. {k) OxUy V. Watts, 1 T. R. 12. Attack V. liramwell, 3 B. & S. 620 ; 32 L. J., Q. B. 146. (/) Slater v. Swann, 2 Str. 872. (//i) Cule V. Maundy, Roll. Abr. Tres- pass, 1, pi. 17, p. 666. Ilea v. Sheward, 2 M. & W. 426. \ k •!: IS I' I V 's 2 \' lil ■1" il 522 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. sheep out of his grounds, where they were trespassing, and the sheep went into another man's land next adjoining, and the dog pursued them there, and the defendant did his best to recall his dog, but the dog could not be recalled at once, and the plaintiff sued the defendant for chasing and worrying his sheep, it was held that the action was not maintainable, as the defendant had not incited the dog to chase the sheep after they had left his premises, but had done his best to call the dog off(«). But the chasing of tres- passing beasts with a mastiff dog is unlawful ; and, if any damage is done to them by such a dog, the owner will be responsible for a trespass (o). Conversion. — If a man, who has no right to meddle with goods at all, takes them and removes them from one place to another, an action may be maintained against him for a trespass ; but he is not guilty of a conversion of them, unless he removed the goods for the purpose of taking them away from the plaintiff, or of exercising some dominion or control over them for the benefit of himself or of some other person {p). Thus, where the plaintiff and defendant, who were porters on the custom-house quay, had each a small box in a hut on the quay, for storing small parcels of goods until they could be put on board ship, and the plaintiff placed some goods in the hut in such a manner that the defendant could not get to his box without removing them, which he accordingly did, but forgot to put t!xom back again, and the goods were lost, it was held that the defendant had a right to remove the goods, and so far was in no fault ; but that, although, as he had not returned them to the place where he found them, there might bo ground for an action for a trespass in meddling with them, there Avas no con- version of them, as the defendant had not in anywise disturbed the plaintiff's dominion or ownership over the property {q). It has never yet been held that the single act of removing a chattel, independent of any claim over it, either in favour of the person himself or any one else, amounts to a conversion of the chattel. If a gate has been wrongfully erected by the plaintiff, so as to obstruct the defendant's right of way, and the defendant pulls down and carries away the gate and places it on his own land, in a convenient situation for the plaintiff to fetch it away, if (»») Mitten v. Faiidrye, Poph. 161, cited 4 Burr. 2094. (o) Eitig V. Hoae, 1 Freem. 347. (p) See Falke v. Fletcher, 18 C. B., N. S. 403; 34L. J., C. P. 146. (q) Bushel v. Miller, 1 Str. 129. In order to make a person liable for a con- version of goods, he must have applied them to his own use, or must have re- fused to deliver them to the party en- titled thereto, on dem^d. Jf the taking was tortious, no demand is necessary : Farrington v. Patjnc, 15 John (N. Y.) 451 ; Woodbury v. Long, 8 Pick (Mass.) 643 ; Bavis v. Webb, 1 McCord (S. C.) 213. Nor where there has been an actual conversion: Daniel v. Mushier, 8 John (N. Y.) 445; Tompkins v. Hull, 3 Wend. (N. Y.) 406 ; Eurle v. Van Sin en, 7 N. J. L. 344 ; Xuusum v. Nunsum, 1 Leigh (Va.) 86 ; Jewett v. Tart ridge, 12 Me. 243 ; Jiines v. McKinney, 3 Me. 38J, If SECT. III.] RIGHTS OF I'KOPEKTY IN CHATTKLS. 623 ho thinks fit so to do, this does not amount to a conversion of the gate (r). "Suppose," observes Eolfe, B., " I, seeing a horse in a ploughed field, thought it had strayed, and, under that impression, 500 led it back to pasture, it is clear that an action would lie against me for a trespass ; but would any man say that this amounted to a conversion of the horse to my own U8e?"(s). "Scratching the panel of a carriage would be an act of trespass, but no conversion of the carriage" (t). But any asportation of a chattel for the use of the defendant or some third person, or the doing of any un- authorised act, which deprives another of his chattel permanently or for an indefinite time, is a conversion of it, because it is an act inconsistent with the general right of dominion which the owner of the chattel has in it, who is entitled to the use of it at all times and in all places (ii). If a man has possession of my chattel and refuses to deliver it up, knowing or having the means of knowing that I am the owner of it, this is an assertion of a right inconsistent with my general dominion over the chattel, and the use which at all times and in all places I am entitled to make of it, and, consequently, amounts to an act of conversion (x). So, if a man who is intrusted with the goods of another puts them into the hands of a third person, contrary to orders, it is a conversion. So, if the pawnee of goods, with a power of sale, sells them before the day stipulated for the exercise of the power of sale has arrived (y). If a person, without my permission, takes my horse to ride, and leaves it at an inn, this is a conversion ; for, though I may have the horse on sending for him, and paying for the keeping of him, yet it brings a charge on me ; and it is different from the case of a misdelivery of goods merely owing to a mistake (z). If a vendor who has sold goods on credit re-sells the goods before the day of payment has arrived, he is guilty of a conversion («) ; and so he is, though the pur- chaser makes default in payment, unless he has given the purchaser due notice of his intention to sell (6). However, if a person has obtained possession of goods under colour of a pretended contract of sale on credit, and with the preconceived intention of never paying for them, it is competent to the vendor to consider the contract as a nullity, and treat the fraudulent purchaser as a (>•) Houghton V. Butler, 4 T. R. 364. (s) Fouldcs V. Willonyhby, 8 M. & "W. 651. (<) Alderson, B., Fouldea v. Willough- bij, 8 M. & W. 549. ((0 Mioit V. Bott, L. R., 9 Ex. 86 ; 43 L. J., Ex. 81. {x) Baldwin v. Cole, 6 Mod. 212. Burroughes v. Bayne, 5 H. & N. 296 ; 29 L. J., Ex. 188. (y) Johnson v. Stear, 15 C. B., N. S. Icy, 15 0. B., N. S. 701 ; 33 L. J., C. V. 124. (i) Sycds V. Hay, 4 T. R. 264 ; 3 Burr. 1261. Tear v. Frecbody, 4 C. B., N. S. 263. (a) Chinnery v. Viall, 5 H. & N. 293 ; 29 L. J., Ex. 180. Martindale v. Smith, 1 Q. B. 389. (A) I'age v. Cowasjce Eduljee, L. R., 1 P. C. 127. A fortiori, therefore, if ttie vendor re -takes possession of the goodtj I ?■ i \ !i: . i- \i ! 3 I t 330 ; 33 L. J., C. P. 130. Figot v. Cub- and re-sella them. S. C i'l I i 524 INJURIES TO RIGHTS OF PROrERTY. [ciIAP. VIII. ]f person who has tortiously got possession of the goods (c) . If a 501 man enters the house of another, and takes an inventory of his goods, and gives him notice tliat they are distrained for rent and will be sold, this is evidence of a conversion (d). So, if a man takes the property of another without his consent, by abuse of the process of the law, this is an act of conversion (c) ; and, if a person aids and assists in the sale of goods under a fraudulent and void warrant of attorney, he may render himself responsible for a conversion of the property (./'). If a sheriff sells more goods than are sufficient to satisfy an execution, he is liable for a conversion in respect of the excess. Whether he has sold more than was necessary is a question of fact in each particular case {(/). If a judgment-debtor, against whom execution is issued, has a qualified interest only as a bailee in goods seized by the sheriff, and the sheriff, having no notice of the qualified interest, sells them absolutely, he is not, it seems, guilty of a conversion by the mere act of soiling. It must be shown that he parted with the possession of the goods, and caused them to be used and damaged by the purchaser (/<). If a landlord distrains and carries away goods, and, after selling enough to satisfy the rent in arrear, returns the surplus to the demised pre- mises from whence they were taken, there is no conversion by the landlord of any part of the property, he having dealt with it no otherwise than he was by law entitled to do (/). A mere negligent dealing with goods by a bailee to whom they have been delivered, is not a conversion of them, although ho may be liable to an action for negligence ; for that only is a con- version, where some dominion is asserted over the chattel, the subject of the action. One who takes possession of goods un- lawfully, which are in consequence lost to the owner, is, to a certain extent, guilty of a conversion ; but, where there is no unlawful taking of possession or assertion of dominion over the goods, although the goods may be destroyed, there is no conver- sion. If the goods of one man are consigned to another, whether rightfully or wrongfully, the consignee is justified in depositing them in a place of safe custody ; and their destruction there with- out his default cannot make him guilty of a conversion (A-). Conversion — Wrongful destruction. — Every wilful and wrongful destruction of a chattel, or wilful and wrongful damage to it. - (c) Ferguson v. Carrington, 9 B. & C. 59. {d) Neihu v. Hanny, 2 Car. & K. 710. Needham v. Bawbone, 6 Q. B. 771, n. {e) Grainger v. Hill, 4 Bing. N. C. 221; 5 8c. 677. (/) Billiter v. Young, 6 El. & Bl. 1. {g) AMredv. Constable, 6 Q. B. 381. (h) Lancashire Waggon Co. v. Fitz- hiigh, 6 H. & N. 602 ; 30 L. J., Ex. 231. (») Evans V. Wright, 2 H. & N. 527 ; 27 li. J., Ex. 60. (A) Healdy. Carey, 11 C. B. 993. ir SECT. 111.] RIGHTS OF PROPERTY IN CHATTELS. 035 whereby the owner is deprived of the use of it in its original 602 state, is a conversion of it. Thus, the taking of wine from a cask and filling the cask up with water, is a conversion of all tho wine (/). If a bailee of a cask of wine consumes part of the wine, this, as against him, is a conversion of the whole of tho wine ; but he cannot himself set it up and rely ui)on it as a conversion of tho whole, so as to enable him in ony way to take advantage of his own wrong (/«)• 33ut to constitute a conversion by reason of the destruction of chattels by the defendant, it must be shown that he destroyed them with tho intention of taking to himself the pro- perty in them, or deriving some benefit from them, or with the in- tention of depriving the plaintiff of the possession or use of them ; for, if A finding property belonging to Ji encumbering his close, unintentionally destroys it in endeavouring to remove it, this is no conversion of the property («). Conversion — Dinpoml hif puirhascrH tvithout title. — Any person who, however innocently, obtains possession of the goods of a person who has been fraudulently deprived of them, and disposes of them, whether for his own benefit or that of any other person, is guilty of a conversion (p). According to Lord Holt, the very assuming to one's self tho property and right of disposing of another man's goods is a conversion of them; "and certainly," observes Lord EUenborough, " a man is guilty of a conversion who takes my property by assignment from another, who has no authority to dispose of it ; for what is that but assisting that other in carrying his wrongful act into effect" (/)). If such person acts as agent for another who subsequently, although without a knowledge that the sale was illegal, adopts it, the latter will also be liable {q). CoHVcmion — Innocent bailees. — One who deals with goods at the request of the person who has the actual custody of them, in the honcL fide belief that the custodian is the true owner, or has the authority of the true owner, is excused for what he does, if the act is of such a nature as would be excused if done by the authority ■~f the person in possession, if he was a finder of the goods or itrusted with their custody (r). Jonversion — Demand and refusal. — When the chattels of the < m {I) Richardson v. Atkinson, 1 Str. 577. («() Patteson, J., I'/iilpott v. Kelliy, 3 Ad. & E. 106. («) Simmons v. LiUystone, 8 Exch. 442; 22 L. J., Ex. 217. (o) Uollins V. Fotcler, L. R., 7 H. L. 767, 796 ; 44 L. J., Q. B. 169. {p) M'Combie v. Davics, 6 East, 540. 8co Fine Art Society v. Union Bank, 17 Q. B. D. 705. {q) Hilbcrij V. Ilatton, 2 H. & C. 832 ; 33 L. J., Ex. 190. {»•) Per Blackburn, J., Uollins v. Foivler, L. R., 7 H. L. 757 ; 44 L. J., Q. B. 169. I it ir f 620 INJURIES TO RiailTS OF PROPERTY. [f'HAP. Viri. 603 plaintiff have not boon wrongfully takon possession of by tho dofendant, but have como into bis hands in a lawful manner, ho cannot bo mado responsiblo for a conversion of them, until thoy have boon demanded of liim by tho owner, or tho person entitled to tho possession of them, and ho lias rofuaed to deliver them up. Whenovor, therefore, the goods of ono man have lawfully come into the hands of another, tho owner, or person entitled to tho possession of them, should go himself, or send some one witli a proper authority, to demand and receive them ; and. if tho holder of the goods then refuses to deliver them up, or to permit them to be removed, there will be evidence of a conversion («) ; for " who- ever," observes Holt, C. J., " takes upon himself to detain another man's goods from him without cause, takes upon himself tho right of disposing of them," and is guilty of a conversion {t). Tho demand and refusal do not in themselves constitute the con- version. They are evidence of a conversion at some previous period («). Conversion — What is a sufficient demand and rofmal. — If, when goods are demanded, the person in possession of them refuses to deliver them except upon a condition which he has no right to im- pose (x), such as giving a receipt in writing for the goods (y), that is tantamount to an absolute refusal, and he is guilty of a conver- sion. If the person in possession of the goods says, when the goods are demanded of him, that he shall do nothing but what tho law requires, and does not produce or tender the goods, this is evidence of a conversion of them (s). But, though he at first refuses, if he afterwards, and before a writ is issued against him, goes to the plaintiff and offers to deliver them up to him, the effect of the previous refusal is done away with, and there is then no evidence of a conversion («). If the demand is for the delivery of an article to the plaintiff in some particular state and condition, a refusal to comply with the demand is not necessarily a conver- sion, as the defendant may not bo bound, or may be totally unable, to deliver the article in the state required (b). So, if the demand is too large ; if the plaintiff, being entitled to demand five beasts, requires seven, and the defendant refuses to give up seven, such a refusal is no evidence of a conversion of the five which were never demanded (c). If the goods are not in the pos- session and under tho control of the defendant, he is not guilty («) Thorogood v. Bobin»•), Remedies — Hc-caption of goods urongfuUi/ seized or stolen. — If A has actual possession of a chattel, and B takes it from him against his will, A may use as much force as is necessary to defend his right and enable him to retake the chattel ; and, if a chattel has been seized and carried away by a person 518 who has no colour of title to it, and the owner comes and de- mands it, and the trespasser refuses to give it up, the owner may use force sufficient to enable him to re-take his, property («). A person, therefore, who has been robbed is entitled to retake the stolen property wherever he can find it, provided the person in possession of it has not acquired a title to it by purchase in market overt, without notice of the robbery, lie is not justified in com- mitting an assault, or a breach of the peace, in order to possess himself of the property, unless he finds it in the hands of the thief or the felonious receiver; but he must watch his opportunity for recovering possession ; and, if he is unable peaceably to re-take it, he must pursue his remedy by writ of restitution, or by action. If there has been no alteration of the right of property in the thing stolen, by sale in market overt, he may at once demand it from the {p) Oeorge v. Chambers, 11 M. & W. 159. Oay v. Matthews, 4 B. & 8. 42/) ; 32 L. J., M. 0. 68. Pease v. Chaijtor, 3 B. & S. 620 ; 32 L. J., M. C. 121. Mor- veil V. Martin, 3 M. & G. 590. Parke, B., Jones v. Johnson, 5 Exoh. 875. {q) Oeorge v. Chambers, 11 M. & W. 161. (»•) Gibbs V. Crnikshank, L. R., 8 C. P. 464; 42 L. J., C. P. 273. (») Blades v. Higgs, 10 C. B., N. S. 713; 12 0. B., N. S. 501 ; 34 L. J., C. P. 286. R. V. Mitton, 3 C. & P. 31. 64a INJURIES TO RIGHTS OF PUOPKRTY. [ciIAF. VIII. t I II 1 ' M m t i 1 porsou in poBflossion of it ; and, if tho latter rofusos to deliver it up to him on demand, ho may bring his action. T/io urotKj-docr — Joint coiwcmun. — In order to recover against Bevoral persons for a joint (souversion, it must be proved that all concurred in some joint act of conversion. If tho facts exclude a joint conversion by all tho dofendantH, but show separate acts of conversion, in which some have participated, and others not, some of the defendants may bo found guilty, and others may bo aoqmttod (/)• The urong-docr — Conversion by an a«). Division of properf// — Possession. — Possession of chattels is prima facie proof of ownership ; and mere proof of possession will entitle a plaintiff to recover in an action of trespass or trover against a wrong-doer (it). If a man cuts down wood or rushes, and stores them on the ground ready to be carried away, the things so severed from the realty are in the actual possession of the person who has cut them down ; and proof that the act of severance has been committed by the plaintiff is sufficient prima facie evidence of title to enable the plaintiiT to maintain an action against another person for seizing them and carrying them away (o) . Proof that the plaintiff dug out ore, or sand and gravel, and piled it in heaps on the ground, is prime facie proof that he is entitled to tho heaps (p). Proof that ihe plaintiff is the owner of a vessel taking in cargo is prima facie evidence that the plaintiff is the owner of the cargo (y). 522 When goods have been taken from the actual possession of the plaintiff, and the defendant fails in establishing any title in himself to the proj)erty, so as to justify the seizure, he will not be allowed to set up a Jus terfii, and deny the plaintiff's title to the goods ; for, as against a ^vl'ong-doer, possession is title ; and the presumption of law is that the possession and ownership of chattels go together ; and that presumption cannot be rebutted by evidence that the right of property was in a third person, offered as a defence by one who admits that he had no title and was a wrong-doer when betook or converted the goods (>•). A wrong-doer, therefore, in actual possession of goods, the property of another, can recover their IlolroyJ, J., in Fariant v. T/ioiiiusoii, 5 B. & Aid. 829. Ihin v. BUtUatoii, 7 Exch. 159. {I) Co. Litt. 57a- 6:b. (»i) Loeschman v. Machiii, 2 Stark. 312 («) Wobb V. Fux, 7 T. R. 307. (o) Itackham v. Jisiip, 3 Wils. 332. _ {p) Xorthum v. liowdai, U E.\cli. 70 ; 21 L. J., Ex, 238. Rowr v. ISnntou, 8 B. & C. 737. [q) llfanckcr v. Mohjneux, 3 M. & G. 84. ()■) ][,,tth V. Milwnrd, 2 Bin>r. N. C. 100 ; 2 Sc. IGO. (\ii-tcr v. Jo/iiisoii, 2 M. & R. 205. Ashihoir v. Jfar-fi/, 7 C. & P. 505. lloiinw V. Fnshi-ookc, 18 C. B., N. S. 515 ; 31 L. J., C. P. IGl. X X f^w-nr'-'^ 546 INJURIES TO RIGHTS OP PROPERTY. [CIIAP. VIII. i value in ar action against another wrong-doer wlio takes the goods from him (s). Diviaion of propcrtij — Constructive possession. — The person in whom the general property in a personal chattel is vested may maintain an action for the taking or injuring of the chattel by a stranger (/), although he has never had possession in fact ; for the general property draws to it the rigl;'; of possession (»). If the plaintiff shows that he has a right to tht possession of chattels, this will enable him to maintain an action for damages without proof that he has ever had actual possession of them, or that he is the owner of them ; for a factor to whom goods have been consigned by the owner for sale, and who has never received them, may maintain an action for tlto conversion of them (,r). There may be a constructive possession of chattels in respect of the right of pro- perty being actually vested in the plaintiff. Such is the case in an action of trespass by the lord for an estray or wreck taken by a stranger before seizure by the lord, where the right is in the lord, who has a constructive pcTiCssion in respect of the thing being within the manor of which he is lord. So the executor has the right immediately on tlio death ot t'iie testator ; and the right draws after it a constructive possession {//]. If trees growing on land demised to a tenant are cut down, or fixtures attuchod to a dwelling- house are severed, the landlord has an immediate right of possession of the trees and fixtures so severed from the inheritance; they a.e his goods and chattels; and, if they are talon away from tlie demised premises, he may maintain an action for the conversion of them{3). Property in the hands of very young children is in the con- 523 structive possession of the father and master of the house. But watches and books given by a parent to a school-boy or appren- tice, and, taken away from home, are the property of the boy ; and, if they are taken away, detained, or converted by a wrong- doer, the boy, and not the parent, is the proper person to sue for the injury («). Where the owner of a furnished house puts a person into the possession of the house to manage a business for him, at a certain agreed rate of remuneration, and gives him the use of the furni- ture, the occupier is the mere servant of the owner, his possession of the furniture is the possession of the master, and the latter is entitled to take it away at any time {!>). A mere gratuitous bail- (s) Jeffries v. Great Western Rail. Co., 5 El. & Bl. 806 ; 25 L. J., Q. B. 107. {t) Beat'jy. Gibbons, 16 East, 116. (ii) Bro. Abr. Trespass, pi. 303, 301 ; Latch. 214. {x) Ejre, C. J., Fouler v. Duivn, 1 B. & p; 47. (//) Smith V. Milles, I T. R. 480. Brew V. Ilareii, Ir. Rep., 9 C. L. 29, (r) Jleny v. Jle^ml, Cro. Car. 242. Farrniit v. Thompson, 5 B. & AJd. 828. (a) JIuii.'er v. IfeUbrool, 2 C. & P. 578. (i) Bertie V. Bedianunl, 10 East, 30. SECT. III.] RIGHTS OF PROPERTY IN CHATTELS. 647 ment of a chattel to another does not remove the chattel out of the possession of the hailor, and does not prevent the latter from suing a third person who takes and converts the chattel, with or without the authority of the bailee ; for, in cases of gratuitous bailment, the bailee generally holds the chattel merely at the will of the bailor, and is bound to return it whenever required so to do. If, therefore, goods are bailed by A to B, to be kept by tlie latter, and B bails tliem to C, who uses and wastes the goods, C is liable to an action at the suit of A for the recovery of compen- sation for the damage sustained (c). If the owner of a chattel gives a gratuitous permission to another to take the chattel and use it, he may, nevertheless, maintain an action against a stranger who takes, damages, or converts the chattel, while it is being used by the person to whom it has been lent (d). So, where brewers sell porter in casks, and lend the casks to their customers until they are emptied, they may maintain an action against a wrong- doer for taking and detaining the empty casks {(>). However, where there was an absolute assignment of goods by deed, with a covenant to pay a certain debt or demand, and a pro- viso for redemption on payment of the debt, and a further proviso that the assignor should continue in possession until default, and before any default made the goods were taken in execution and sold by the sheriff, it was held that the assignee had not such a right of immediate possession as wovld entitle him to maintain an action against the sheriff for a conversion of tlie goods (,/'). Division of Proper fi/ — Assessment of damages, where the i/ialntiff has onli/ a limited or doubtful interest in the goods. — Where the 524 plaintiff is not the actual owner, but is only a bailee or hirer of goods which have been wrongfully taken out of his possession, he is entitled as against a stranger to recover the entire value of the goods. But, if the action is brought by the hirer or bailee against the owner of the goods, the damages will be limited to the value of the plaintiff's interest in them {g) ; and a defendant who has wrongfully deprived the plaintiff of the possession of goods, may show that he was himself the owner of the goods at the time of the conversion, subject to some temporary or conditional right of possession on the part of the plaintiff, with a view of limiting the damages to the value of the plaintift''s limited interest {h). If it Mayhew v. Sutlle, 4 El. & Bl. 353. White V. Bailey, 10 C. B., N. 3. 227 ; 30 L. J., C. P. 253. {c) n Ed. 4, fol. 13, pi. 9; fol. 9, pi. 6. (rf) L'rian v. Cross,, 2 Caaip. 4G5. MvoUs v. HasUml, 2 C, M. & R. 059. Turner v. Ford, lo M. & W. 2:2. N N ^ (c) Mandcrs v. Williams, 4 Exch. 343. (/) Bradley v. Copley, 1 C. B. 685. [ij) Jleydon and tSmith's cane, 13 Co. 68. W-iters V. Monarch 5 El. & Bl. 880 ; 25 L. J., Q. B. 102. (/() Brurhii V. Knuhill, 17 Q. B. 913 ; 21 L. J., Q. B. 101. \ r^^^rmmmm^mmfr 548 INJURIES TO RIOHTS OF PROPERTY. [CHAP. VIII. II ii r if:' ih!' "J. \' J f 'S V a^ipears that the plaintiff has merely been clothed with the pos- session and ostensible ownership of the chattels, for the purpose of perpetrating a fraud or defeating a distress, or if he has made a transfer of the chattels, which ho has treated at one period as valid and bond Jide, and at another as merely colourable, so as to leave it doubtful what is his real and hond fide interest in the property, the jury may, if they please, give him merely nominal damages (/). In cases between pawnor and pawnee, where the pawnee has by an illegal dealing with the pledge determined the bailment, and the pawnor has in consequence brought an action for the conver- sion of the goods, the interest of the pa^vnee ought to be taken into account ; and, if the pawnor did not intend to redeem the pledge, only nominal damages are recoverable (/•). Division of property — Joint-tenants and tenants in common of chattels. — Where some engravings had been mortgaged to the plaintiff, and the plaintiff and the mortgagor, after the execution of the mortgage, placed the engravings in the hands of the defen- dant in their joint names, to be sold by him by a public lottery or raffle, which failed for want of subscribers, and the mortgagor, being greatly in debt, absconded, and the plaintiff then demanded the engravings, but the defendant refused to deliver them to him alone, without an indemnity, it was held by Jervis, C. J., that the refusal was right, and that the plaintiff had no ground of action in respect thereof against tlie defendant {I), But, where one tenant in common of a personal, indivisible chattel brought an action for the conversion of it against a stranger, and the stranger did not plead the tenancy in common in abatement, it was held that he 52d could have no benefit of it in evidence on the general issue (>n) , and that the plaintiff was entitled to recover damages in propor- tion to the extent and value of his interest, and the damages he had sustained (/*). If a man brings an action for the conversion of a ship, and upon the evidence it appears that he has but a sixteenth part of it, this v j tro fii 'uction of damages, as he has no right to recover 1-he va'iie of th? sliares of the other part-owners (o). Division of prar'^-'t!/ —U'i;'ds tnd liabilities of tenants in common inter m^ —In Li*li -^.i ()•/ it is said that, "if two be possessed of chattels personal in o-jPiWon, and one take the whole to himself out (i) Vcma-on v. Wynch, 2 (J. & S. 264. Friiwlc V. 'Jai/lor, 2 Taunt. 1.50. (k) Johnson \. Stiir, I'} C. S., Ji. S. .130 : 33 L. J., C. P. 130 (iHbs. Wll- liT;i!s. .T.). {l) Jiirki -v. Bryant, C. B. Sittings aittr 'Jvinity Term, 1802. Ilarper v. Goilsi'll, L. E., 5 Q. B. 422 ; 50 L. J Q. B. 185. (w) Kinsr, C J., Barnardiston v. Chap' w.iti, ci'.) . Eiylit to particular chattels — liirj/d to ^fixtures. — Fixtures are chattels whicli have been annexed to land. Whether a chattel has boon 60 annexed to land as to become a fixture, depends on the dogrco of annexation and tlio object of the annexation. Chattels not otherwise attached to the land tlian by their own weight, are not to be considered as part of the land, unless the circumstances are such as to show that they wore intended to be part of the land, as in the case of a dry stone wall, tlio onas of showiiifj that they 09? woi'o Hii iiitf'||(|iHl lying on those wlio assert that they have ceased io 1)0 oluitlols. (In the olliar hand, a chattel affixed to the land pvon slightlj, Is (n bo considered as part of the land, unless the clrcumstanoes are SUo)| as to show that it was intended all along to ptlllHhue ft chattel, as lu the case df a carpet nailed to the floor of the room, tlie onus \) Ing on those who contend that it is a chattel. Where all nrtlcilo is iillixed by the owner of the fee, though only affixed by bolts and screws, it is to be considered as part of the land, at all events where the object of setting up the article is to eulianco the value of the premises to which it is affixed for the purposes to which those premises are applied (c). Ordinary trade (y) Oi'(>Hswoll, J., Maijhcw v. Ilcrrick, 7 C. B. 'JJ9. llaniardiston \. Chapmun, cited 4 Eust, 121. (;) JoiiCH V. Brimii, 25 L. J., Ex. 345.. r -iiiiigs V. Lord Gmirillr, 1 Tiiimt. 248. [ti) Morijnn v. Mni-fjuin, 9 Exch. 145 ; 2;i L. J., P>x. 21. Julicnh v. Hooper, 11 M.& W. 303. (//) lldnjcr V. Godt^ll, L. R., 5 Q. B. 422 ; 39 L. J., Q. B. 185. ((■) Jlolhtml V. Jlodi/noii, L. R., 7 C. r. 328; 41 L. J., C. V. 14G. Tlie follow- ing articles affixed by tho owner of tho fee liave been held to bo fixtures : — A thre.«liing machine placed inside a barn (the mac^hiuery for the horse being on tho outside), and there fixed by screws and bolts to four posts which were let into tho earth {Wiltshire v. Cutterill, 1 E. & B. 674 ; n L. J., Q. B. 177) ; SECT. III.] RIGHTS OF PROPERTY IN CHATTELS. 651 or tenant's fixturos, which arc put up with the intention that they should be removed by the tenant, have always been considered as part of the land, altho\igh severable by the tenant, the reason probably being that, although they are put up for a purpose in one sense only temporary, and certainly not for the purpose of im- proving the reversionary interest of tho landlord, yet the tenant indicates by the mode in which he puts them up that ho regards them as attached to the property during his interest in it (d). Where buildings were exclusively erected for mining purposes, but were attached to tho soil so as to be part of it, and so as to be incapable of removal without disturbance of it, it was held that the miners were entitled to remove them, and were not liable to the surface owners for so doing (e). Wliere sucli fixtures have been put iip by tho owner of tlie freehold, they pass under a mortgage of tlio freehold to tho mort- gagee, although they may have boon annexed to tho freehold for tho more convenient using of thom, and not to improve tho free- hold, and althougli they are capable of being removed without any appreciable damage to the fvooli(^ld (/'), " Questions respecting the right to what are ordinarily cnllod fixtures," observes Lord EUenborough, " principally arise between throe classes of persons. VxYnt, between difTci'iMit dosoriptions of 528 representatives of the same owner of the inheritanoe, viz., be- tween his heir and exooiitor. In this first case, /. c, botwot*n heir and executor, tho rule as to severance obtains with tho most rigoiiv in favour of the inheritance, and against the riglit lo disanuex there- from, and to consider as a personal chattel, anything which has been affixed thereto {[/). Sccoudlj^, between tho executors of touant for life or in tail, and the remainderman or rovorsiouer ; in which case the right to fixtm-es is considered more favourably for exeuutors than in the preceding case between heir and executor. The third case, and that in which the greatest latitude and indulgence have always been allowed in favour of tho claim of severance, as against maihiiicry for tlio purpose of carrying on a trade on tliu land [Mather v. Frascr, 2 K. & J. 5:50; 25 L. J., Ch. lifll); a steam ongiuo and boiler for supplying hot water for tlio uho of baths ( // almslci/ V. Mihir, 7 C. B., N. S. 115; 29 L. J., C. P. 97) ; or for sawing timber {Clmiic V. Wood, L. R., ;i Ex. -Ihl ; 4 Ex. ;i8G) ; a hay-cutter lixed into a building ad- joining a stable, as an important adjunct to it, and to improve its usefulness as a stable [lb.) ; a malt-mill and grinding stones {lb.) ; Icathcni driving belts {SheJHctd Bnikliny Hocklij v. Uarrison, 15 Q. B. D. .358 ; 51 L. J., Q. B. 1.5). ('/) Boi/d V. Shuirock, L. It., 5 E(i. 72, 78; 37 L. J., Ch. Ill; Hulhind \. llodi/wii, L. R., 7 C. P. 328, 336; 41 L. J., C. P. MO. (,) Wake V. Hall, 8 App. Cas. 195 ; 52 L. J., Q. B. 494. The rules as to fixtures stated in tho text prevail in this country. (/') Climic V. Wood, L. R., 3 Ex.257 ; 4 Ex. 328. {). The expression "factory or workshop" means any premises on which any manual labour is exercised by way of trade, or for purposes of gain, in or incidental to tho making any article or part of an article, or to tho altering, repairing, ornamenting, or finishing any article, or to the adapting any article for sale (g). Fixtures — DatiKKjes rccorcrab/e in respect of the severance and sale of fxtares. — Where fixtures have boon unlawfully detached from the freehold and sold by auction, the measure of damages in an action against a wrong-doer for the seizure and removal of the I , t (o) Bills of Sale Act, 1878 (41 & 42 Vict. c. 31), H. 7. This rule f construc- tion is to be applied to all deeds or in- struments including fixtures executed before tho commencement of this Act and then subsisting and in force, in all questions arising under any bankruptcy, liquidation, assignment for the beneiit of creditors, or execution of any jiroccss of any court, which shall take place or be issued after the commencement of tho Act. Sect. 7. As this part of tho Act is retrospective, it is unnecessary to con- sider in detail Avhat tho law was under the former Acts. The general effect of the decisions was that fixtures which only passed as appurtenant to real pro- perty, and could not be severed by tho grantee, were notpersonal chattels within the Acii iMulher v. Frnsir, 2 Kay & J. 558 ; 25 L. J., Ch. JJOl. Jhi/il v. kS/ioi-- rock; L. R., 5 Eq. 72 ; 37 L. J., Ch. 144. Walmdiy v. Milne, 7 C. B., N. S. 115 ; '29 L. J., C. P. 97. ]-:x parte Barchti/, L. R., 9 Ch. 576 ; 43 L. J., Bk. 137) ; but fixturrs which were transferred in- dependently of the iicehold (ll'alcrfallv. rcnistone, U El. & PI. 890; 20 L. J., Q. B. 100. Whitw r V. Empsoii, 23 Beav. 313), or which ci'uld be severed by the grantee (Jla.rtii/ v. Jhil/in, L. R., 8 Q. B. 290 ; 42 L. J., Q. B. 103. JJx parte J)m/lhJi, L. R., 8 Ch. 1072 ; 42 L. J., Bk. 102. lu re ]■:. IJslid; L. R., 4 Ch. D. 603 ; 46 L. J., Bk. 30), were held to bo personal chattels within tho former Acts. The Bills of Sale Amend- ment Act, 1882 (45 & 40 Vict. c. 43'), after 'providing (s. 4) that bills of sale by way of security shall have effect only in re.sjjcct of such chattels as aro luinud in the bill, and shall bo void (except as against the grantor) in respect of any other chattels, and (s. 5) us to after- acquired chattels, enacts (s. 0) that this shall not affect fixtures separately as- signed or brought upon the premises iu substitution. {p) Sect. 6. ('/) Sect. 6. SECT. III.] niaiiTS OF pnori'-RTY in chattels. 655 fixtures is i\w value of the fixtures as between an oxitgoinp and incoming tenant {>•), in addition to compensation for any inten- tional wrong, injury, or insult involved in the aot of removal, or for iin\- trespass that may have boon committed in removing tlicni. OroiriiHi cro))s. — FriirftiH iiu/mtriii/en, such as growing crops of turni[)H, potatoes, and corn, and the annual productions of the soil raised cacli year from fresh plants and needs, are goods and chattels. If a man by deed "grants to another and his heirs tlio vesture or herbage of his land, by this grant do pass the corn, grass, under- wood, Bweepage, and the lil ■'." " lie that hath ilie laud also may grant all fruits that may urise upon it after ; and the property shall pass as soon as the fruits are extant ; and, though the words are not words of gift of tlio corn, but words of lioonco that it shall be lawful for tlio grantee to take it to his own use, it is good to transfer tlie pri>porty "(v). Where the lessee of a farm, being indebted to liis landlord, assigned to tlie latter, by a bill of sale under seal, all his hay and corn in stock and growing upon the farm, and all liis t* )iant right and interest to come and unexpired in the farm, in trust to sell and pay the debt, and hand over the surplus to such lessee, and full power was given to the landlord to enter upon the farm at any time thereafter, and take and carry away the said corn and hay, it was held that growing crops, not sown at the time of the execution of the deed, passed imder the assignment of the "tenant right" to the grantee (/). But the general rule of law is that things not in existence at the time of the grant cannot pass thereby ; but the grant may operate as a licence to seize and sell after-acquired property (n). Although the land itself does not pass by the grant, the grantee has a right, when the grant is under seal, to the use of the soil for the crop to grow in 532 until it arrives at maturity, and a right to enter upon the land to secure and carry away the crop {.>■) . Growing crops, when separately assigned or charged, are per- sonal chattels within the Bills of Sale Act, 1878, but not when they are assigned together with any interest in the laud on which they grow ; nor are any stock or produce upon any farm or lands which, by virtue of any covenant or agreement or of the custom of the country, ought not to be removed from any farm where the same are at the time of making or giving of such bill of sale (i/). {>■) Thompson V. r,ltUt, 10 Q. B. lOG. («) Cidiitliam V. lluuliii, Hob. WVi. \t) J'Hc/i V. TkIiii, 15 M. & \V. 115. («) Cr V. A/liitt, 27 L. .T., Ex. ;!85. (a) Noy's Muxiuis, 55; Plowd. lU. ((/) Ante, p. 403. Growing ci'oi).s were not specifically mentioned in the fonner ActH ; and, althougli it had been held in tShcndiin v. MUMrtnci/ (11 Ir., C. L. It. 606 : 5 L. T., N. S. 27) that they were witliin the 17 & 18 Vict. o. 36, where the OAHignmont of them conveyed no estate in tlio land, yet some doubt hud been thrown on that decision by the w 1^ IMAGE EVALUATION TEST TARGET (MT-3} 1.0 ^"^B^ m m •» us |20 l£ I.I IL25 i U iiA t. Z .^"^^^ Photogra{iiic Sciences Corporalion m ^ ,v <^ ^. ;\ 23 WfST MAIN STREET WEBSTER, NX MSM <71«)«72-4S03 f 6^ 11 5oG INJUUIES TO RIGHTS OF PKOPERTY. [CHAP. VIII. I But no growing crops are to be deemed to. be separately assigned or charged by reason only thot the^ are assigned by separate words, or that power is given to sever them from the land on which they grow, without otherwise taking possession of or dealing with such land, if by the same instrument any freehold or lease- hold interest in the land in which such crops grow is also con- veyed or assigned to the same person (;:) . A bill of sale is not void as respects growing crops separately assigned or charged where such crops were actually growing at the time when the bill of pale was executed, by reason that such crops are not specifically de- scribed in the schedule, or, if specifically described, by reason that the grantor is not the true owner («). liiijld to coiiipciimtioH for iniproirmeiiis. — According to the custom of the country, in some of the counties of England, the tenant was entitled to the value of his waygoing crops and tillages, and other matters; but recently an Act, called the Agricultural Holdings (England) Act, 1883 (i), hos been passed, which extends the rights of the tenant to compensation for improvements. These improvements are specified in the three parts of the first schedule of the Act, The first part of the schedule relates to improvements to Avhich the consent of the landlord is required (c), aad may be called " alterations of the holding " ; the second part to improvements in 533 respect of which notice to the landlord is required — or " drain- age " {(l) ; and the third part to improvements to which the consent of the landlord is uoi required, which may be called " cultivation." Eor any improvements in this schedule which the tenant makes he will be entitled on quitting (or upon resumption by the landlord) (e) to such sum as fairly represents its value to an incoming tenant, not reckoningwhat is justly due to the inherent capabilities of the soil (/). Where compensation is provided for under an agreement exist- ing before the Act, the agreement will prevail (f/), and also in the ease of improvements specified in part 3 of the schedule, where the remarks of Bramwell, B., in Gaii/h v. m-crard (2 H. & C. 9 ; :V1 L. J., Ex. 212); ami in Branloiiiy. Grifliths {h.B,., 2 C. r. D. 212 ; 46 L. J., C. P. 408), and Ex parte Fayne (L. R., 11 Ch. D. 539), it was held that they were not •within the Act. See also Ex parte Ka- tional Bank, 10 Ch. D. 104; 50 L. J., Ch. 221. {£) Bills of Sale Act, 1878 (41 & 42 Vict. c. 31), 8. 7. This rule of construc- tion is to be applied to all deeds or instruments, including growing crops, executed before the commencement "f the Act (January Ist, 1879), and then subsisting and in force, in all questions arising under any bankruptcy, liquida- tion, aasig^niuent for the benefit of credi- tors, or execution of any process of any court ■which may take place or be issued after the commencement of the Act. Sect. 7. (a) Bills of Sale Act, 1882 (45 & 46 Vict. c. 43), SB. 4, 5, 6. {h) The Act is rendered compulsory by 46 cfc 47 Vict. c. 61, 8. 55. It only applies to agricultural or pastoral hold- ings or market gardens. (r) See sect. 3. (d) See sect. 4. ((■) Sect. 41. if) Sect. 1. For improvements made before the Act he cannot, with certain exceptions, obtain compensation. Sects. 2, 62. {g) Sect. 5. , SECT. III.] RIGHTS OF PROPERTY IN CHATTELS. 557 , tenancy Legins after the Act (//). Sect. provides for certain re- ductions of augmentations in ascertaining tlie amount of compensa- tion; and sects. 7 — 29 provide for procedure by reference and arbitration. Ships and shares in sfiips. — The ownersliip and right of property in ships and shares in vessels are authenticated and regulated by the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), part 2, and the Acts amending it (/). Whenever there is more than one owner, the right of property in the vessel is required to be divided into shares, and the number of shares held by each owner to be registered. But partners in any house or co-partnership may hold any vessel, or any shares therein, in the name of such house or co-partnership as jcint-owners, without distinguishing the propor- tionate interest of each. No greater number than thirty-two persons, however, are entitled to be legal owners, at one and the same time, of any ship or vessel as tenants in common, or to be registered as such ; but any number of persons may hold or enjoy equitable interests, and have an equitable claim or title, as against the registered legal owners. Joint-stock companies, also, formed for the purpose of owning ships or vessels, may appoint any number of their members, not being less than three, to be trustees of the property in such ships or vessels, who are to subscribe the declaration of ownership required before registry, stating the name au'l description of the company to waich the vessels belong. If a porson who has no title as owner gets his name put upon tbe registei, the court will rectify the error, and cause the ship to bo registered in the name of the legal owner (/r). After 534 all the particulars necessary to ascertain the ownership, build, and description of the vessel have been duly declared and registered, a certificate of such registry, embodying such particulars, is to bo granted, and on the back of thia certificate is to be endorsed the names of the owners and the number of shares they hold. If this certificate is lost, mislaid, or detained, the vessel may be registered de novo. Copies of the declaration of ownership, and of the ship's register, are made evidence without production of the originals ; and provision is made for registration de noco, in certain cases where the bill of sale or instrument of transfer cannot be produced. Examined copies of the register, or copies purporting to be cer- tified under the hand of the person having the custody of the [h) Sect. 5. Thia last claube is to apply- to a tenancy current at the date of the Act where specific compensation is not provided by any agfreement in writing, or custom, or the Act of 1873 ; but the meaning of the provision is obscure. (J) 18 & 19 Vict. c. 91; 25 & 20 Vict. c. 63 ; 3-14 35 Vict. c. 110 ; 33 & 36 Vict. c. 73 ; 36 & 37 Vict. c. 83 ; 39 & 40 Vict. c. 80 ; 43 & 44 Vict. cc. 18, 43; 46&47 Vict. 0. 4'.. {k) Holdentcsa v. Lamport, 30 L. J., Ch. 489. 558 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. N <- "• :i original, and all certificates of registry purporting to be signed as required by law, are prima facie evidence of all matters con- tained or recited in the registers, or indorsed on the certificates (/). The certificate of registry, therefore, affords evidence of the ownership anl right of property of every "egistered vessel, and should be produced to every intended purchaser of the vessel, or of any share or shares therein, and be compared with the register. If the vendor of a vessel is not himself the builder or the original owner, but derives his title by purchase after registry, the bill of sale or instrument of transfer under which he claims should be produced, as well as the certificate of registry. By the Merchant Shipping Act of 18G2 (in), interests arising under contract and other equitable interests are recognised ; and, without prejudice to the provisions of the Act of 1854, for pre- venting notices of trusts from being entered in the register book or received by the registrar, and without prejudice to the powers of disposition, and of giving receipts conferred by that Act on regis- tered owners and mortgagees, and to the provisions relating to the exclusion of unqualified persons from the ownership of British ships, equities are to be enforced against o"sviiers and mortgagees of ships in respect of theii* interests therein, in the same manner as equities may be enforced against them in respect of any other personal property. The master of a vessel has no authority to sell the vessel except under very special circumstances of urgent necessity (»). Transfers of registered ships and of shares in such ships must bo made by bill of sale containing such description of the ship as is contained in the certificate of the surveyor, or such other descrip- tion as may be sufficient to identify the ship to the satisfaction of 535 the registrar, according to the form given in the Merchant Shipping Act, 1854 (o). The duty of registering a transfer of owner- ship rests with the vendee ; and immediately on the execution of the bill of sale the vendee becomes entitled to all the benefits and liabilities of ownership (j)). A ship is not like an ordinary chattel which passes by delivery ; and there is no market overt for ships. The purchaser of a foreign ship is, therefore, bound to make inquiries as to the title, and will take subject to existing rights and equi- ties (q). A ship built to be sold to a foreigner, and to be delivered to him at a foreign port, is not a British ship within the meaning (/) 17 & 18 Vict. 0. 104, part 2. (m) 25 & 26 Vict. c. 63, s. 3. («) The Eliza Corniih, 1 Spinks, 36 ; 17 Jut. 738. The Bonita and The Char- lotte, 1 Lush. 2.')2 ; 30 L. J., Adm. 145. Lapraik v. Burrows, 13 Moo. P. 0. 132. (o) 17 & 18 Vict. c. 104, 8. 55. Ip) The Spirit of the Ocean, 34 L. J., Adm. 74. Stapleton v. llaymen, 2 H. & C. 918 ; 33 L. J., Ex. 170. [q] Hooper V. Ginnm, L. R., 2 Ch. 282; 36 L. J., Ch. 282. SECT. III.] RIGHTS OF PROPERTY IN CHATTELS. 559 of the Merchant Shipping Act, 1854 ; and an assignment of her need not he hy hill of sale registered under that statute (/•). Grants of arms, title-deeds, and leases. — A deed of grant of arms from the Heralds' College is a sort of family document in which every member of the family whose claim to arms is dependent upon it, has an interest. Whatever member of the family, there- fore, has got possession of it is entitled to keep it, but may be called on to produce it (.v). But, if the grant is taken out at the joint expense of three members of the family, the deed belongs to the survivor. The owner of a freehold estate has, in general, a right to the title-deeds, the right to the deeds following the right to the land {t). Where, therefore, a man conveyed his freehold estate by way of mortgage to the plaintiff, and handed over to the plaintiff forged and counterfeit title-deeds, and then deposited the genuine deeds with a banker as security for a loan, and the plaintiff brought an action against the banker for the deeds, it was held that he was entitled to recover them {u). The tenant for life has a right to the title-deeds of the estate, except in cases where he has been guilty of misconduct, so that the safety of the deeds has been endangered, or where the rights of others inter- vene, and it becomes necessary for the court to take charge of the title-deeds in order to carry out the administration of the pro- perty ix). The tenant for life, therefore, may maintain an action against a remainderman who has them in his possession, and re- fuses to give them up (//) ; but on the death of the tenant for life 536 the remainderman is entitled to the deeds (s) . A lessee, to whom a lease has been delivered, has a right to the posserssion of the lease, both dui'ing the term and after its expiration, so that the lessor has no right to claim possession of it from the lessee {a). Right to documents and securities for money. — The obligee of a bond, to whom the bond has been delivered, is not bound to deliver it up to the obligor on being tendered the amount due upon it. The obligor is entitled to an acquittance or an acknowledgment of the receipt of the money due upon the bond, but not to the possession ()•) Union Bank of London v. Lcnanton, L. R., 3 C. P. D. 243 ; 47 L. J., C. P. 409. («) Stubs V. Stubs, 1 H. & C. 257; 31 L. J., Ex. 510. (<) SearUy.Law, 15 Sim. 390. (m) Newton v. Beck, 3 H. & N. 220 ; 27 L. J., Ex. 272. {x) leathes v. Leathes, 5 Ch. D. 221 ; 46 L. J., Ch. 562. {y) Allwood V. Eeywood, 1 H. & C. 745; 32 L. J., Ex. 163. Seo Newton V. Neteton, L. R., 4 Ch. 143; 38 L. J., Ch. 145. And as between trustee and cestui que trust, seo Stanford v. Roberts, L. R., 6 Ch. 307. («) Easton v. London, 33 L. J., Ex. 34. As to the rights of two persons jointly- interested, see Wright v. Robothain, 35 Ch. D. 106. (a) Hall V. Ball, 3 M. & G. 242. Elworthy v. Sand ford, 3 H. & C. 330 ; 34 L. J., Ex. 42.' M 5'i m ^^; V; 560 INJUIJIES TO niGHTS OF PROPERTY. [CHAP. VIII. of the instrument itself (/>). Neither is the payee of a note not ne- gotiable bound to deliver up possession of the note to the maker on receiving the amount due upon it (c). The person entitled to the beneficial interest in a contract or security for money is, in general, entitled to the custody of the document or writing by which the beneficial interest or money is secured. If, therefore, the defen- dant has obtained possession of a policy of insurance to wliich the plaintiff is equitably entitled, he is responsible for the conversion of the property if he fails to restore it after demand, as the person entitled to the equitable interest in the document is legally ent'tled to the custody of it (d). Rigid to letters. — The right of property in letters is in the receiver, or person to whom taey are addressed and delivered, so far as regards the paper on which they are written. If, therefore, they get back into the hands of the writer, the receiver is entitled to have them returned to him ; but he has no right to publish them without leave from the writer (^'), or, in case of his death, Avithout leave from his executor (./'). He cannot, however, refuse to produce them in a court of justice on the ground that the writer forbids their production {g) . Right to hills, notes, and cheques. — Bank-notes are treated as money or cash in the ordinary course of business by the common consent of mankind. If, therefore, a man finds a bank-note, and pays it away bona fide in the ordinary course of business, the owner has no remedy for the recovery of the lost property ; but if he demands the note while it still remains in the hands of the finder, the latter will be responsible for the non-delivery of it (/<). 637 In the case of the loss of a bill, note, or cheque (/), by theft or accident, if the instrument is assignable by mere delivery, the thief or finder may confer a title by transferring it to a person who takes it hona fide, and who gives value for it without notice of any infirmity of title at the time he receives it. But, if the (i) Littledalc, J., in Wain v. BaUexj, 10 Ad. &E. 618. ((•) Wain V. Bailei/, siiprn. \d) Oliver v. Oliver, U C. B., N. S. 139; 31 L. J., C. P. 4. (f) Watson V. Maclean, El. Bl. & El. 77. (/) Thompson v. Stanhope, Ambl. 737. (, Jll extinguished by the creation of a new market by Act of Parlia- ment (p). According to Fleta, a new market, opened within seven miles of an existing, legally established market, is actionable (q). Such a limit may be suited to the simple wants ^f a rude life, where inhabitants are few, but is imfitted for large towns, where daily wants ere greatly multiplied. Under the latter circumstances, it seems that the area within which a new market would become actionable would be diminished, and would now depend upon the public need for it (/•). The grantee of a market, who takes a toll for his own benefit, incurs an obligation to maintain the market in a state reasonably fit for the purpose for which it was granted. If, therefore, he erects any obstruction in the market of such a nature as to be dan- gerous to cattle, he is responsible for any injury thereby caused to the cattle of those who attend the market (s). Literal'// and artistic property. — Every one has at common law u right to the exclusive possession and enjoyment of his intel- lectual and map.ual labours, so that, if a man devotes his private hours to literary composition or artistic works, another person has no right to appropriate to himself the produce of his labour without his consent. The unpublished manuscript of the author, for example, cannot be used, copied, or published, without his authority {t) ; nor the unpublished lectures of a lecturer {u) ; nor the picture, etching, or portrait of the painter or photographer (*). If, therefore, a geologist gets a fossil engraved or photographed, in order to send it to his friends, or the owner of a picture or a portrait lends it to a friend to get it engraved, any one who gets possession of the photograph or the engraving has no right at common law to take copies of it for sale ; and whoever handles or deals with 647 photographs, without the consent of the owner of them, in order to get negatives from them, or for any other purpose, is guilfy of an act of trespass (//). Copyright in booh, 8fc. — It is now held that copyright in a pub- lished work only exists by statute (s). To put an end to the doubts {p) Mayor, ^c. of Manchester v. Lyons, 22 Ch. D. 287. (?) Flcta, lib. 4, c. 28, p. 13. {)•) Willes, J., yewtoa v. C'ubitt, 12 C. B., N. S. 32 ; 31 L. J., C. P. 254. («) Lax y. Corporation of Darlington, 5 Ex. D. 29 ; 49 L. J., Ex. 105. U) Queensbcrry [Duke of) v. Shebheare, 2 Eden, 329. Macklin v. Richardson, Ambl. 694. (m^ Fnst, p. 562. \x) Prince Albert v. Strange, 1 Mac. &G. 42; 18 L. J., Ch. 126. (v) May all v. Higby, 1 H. & C. 148 ; 31 L. J., Ex. 329. (z) Rcade-v. Conquest, 11 C. B., N. S. 479; 30 L. J., C. P. 213; 31 ib., 163; Wheaton v. Teters, 8 Pet. (U. S.) 591 ; Boucic.->.Hlt V. Hart, 13 Blatchf. (U. S. C. G.) 47. But the author at the common law has the property in his manuscript and its contents before publication, and an unauthorized publication thereof does not defeat this right, and such publica- «ww5W!j™»f5?!l? T'l«^P!f^^^!(WW?'7TW(^"j;iWPW':'"'»W^^ SECT. IV.] COPYRIGHT. 571 which formerly existed as to the extent and duration of the rights of authors of published works {a), the 8 Ann. c. 19, was passed, defining those rights. That statute, however, has been repealed by the 5 & 6 Vict. o. 45, sect. 2 of which enacts that the word ** copyright" as used in that Act shall be construed to mean " the sole and exclusive liberty of printing or otherwise multiplying copies" (b) of any book, sheet of letterpress, sheet of music, dra- matic piece, map, chart, &g., or any subject to which the word is therein applied ; and (s. 3) that the copyright in books published after the passing of the Act (c), in the lifetime of the author, shall endure for the author's life, and for seven years after his death ; but, if the seven years expire before the end of forty-two years from the first publication, the copyright is to last for forty-two years. If the book is published after the author's death, the copy- right is to endure for forty-two years from the first publication thereof. Authors and proprietors of books in which there was an existing copyright at the time of the passing of the Act may (s. 4) by arrangement between themselves extend the benefit of the Act to such existing copyright. All copyright is (s. 25) personal pro- perty, and transmissible as such. Where seven persons, acting under the direction of trustees for a charity, compiled a book, whicli was registered in their names, but was published by and for the profit of the charity, it was held that the executor of the survivor of the seven compilers had not obtained the benefit of the extended term of copyright granted by the 5 & 6 Vict. c. 45, s. 4 {(l). The proprietor of the copyright in books must (s. 13) make an entry in the register of the Stationers' Company of the title of such book, the time of its first publication (dd) , and the name aud place of abode of the publisher and proprietor of the copyright, in the form given in the schedule. The ^/roprietor of a book or periodical tion will bo enjoined {Jiartlvtt v. Crit- tenden, 5 McLean (U. S. C. C), 32) ; but 11 publication by the autlior's consent, ■without having first secured a copy- rlglit, operates as a dcdicatioi. to the public. (a) Bonaldson v. Beckett, 2 Bro. P. C. 129. Jejhys v. Mosei/, 4 H. L. C. 846; 24 L. J., Ex. 81. Section 4952 of the Rev. Stat, of the United States pro- vides that, "Any citizen of the United States or resident therein, who shall be the author, inventor, designer or proprietor of any book, map, chart, dramatic or musical composition, en- graving, cut, print or photograph, or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators or assigns of any such person shall, upon comply- ing with the pronsions of this chapter, have sole liberty of printing, reprinting, publishing, completing, copying, exe- cuting, finishing, and vending the same : and, in the ca.se of a dramatic composi- sition, of publicly performing or repre- senting it, or causing it to be performed or represented by others ; and authors may reserve the right to dramatize or to translate their own works." Copyrights are granted for twenty - eight years from the time the title thereof is recorded, and may be con- tinued, either by the author or his "widow or children" for fourteen years., (i) A^ovello v. Siidlow, 12 C. B. 177. Millar v. Tai/lor, 4 Burr. 2303. ((•) 1st July, 1842. (rf) Marziak v. Gibbons, L. R., 9 Ch. 518 ; 43 L. J., Ch. 774. {dd) Thomas v. Turner, 33 Ch. D. 292. il 1 ■J ^1 572 INJURIES TO KIGHTS OF rROrEKTV. [CHAP. VIII. has no copyright therein, if it is not actually published at the date of its registration at Stationers' Hall. Where, therefore, the pro- prietor of a periodical had registered the first number at Stationers' Hall before publication, it was held that he was not entitled to an injunction to restrain an alleged infringement, although he had 648 entered on the register the date of the intended publication, and the first number was afterwards published on the date so given (c). The name of the publisher registered must be that of the first publisher (,/'). No copyright can be gained in a work which is founded on fraudulent representation and deceit, and professes to be written by some celebrated author when it is not so written, or in a work which is subversive of good order, morality, or religion; for, if there is no right to sell the book, no loss can be sustained by an injury to the sale ((/). Copyright is divisible, and may be obtained in respect of certain chapters of a work only (/(). In order to entitle the author to copyright, the book must be first published in the United Kingdom ; but it is sufficient if the author is an alien friend sojourning in a colony. Copyright, when acquired, extends over the whole of the British dominions (/). The Act applies to magazines ; and the publication in a sepa- rate form of a serial which has appeared in successive numbers of a magazine may be restrained, if the first number of the magazine has been registered, although neither the serial nor the first number in which it appeared has been separately registered (/r). The Act also applies to newspapers (/). An album for photographs is not a book (//). It is doubtful whether there can be any copyright in the title of abook(?«). But if the name of a publication is fraudulently adopted, an action for infringement of a trade mark will lie (h). Copyright — Transfer of copi/n'ght. — Every registered proprietor of copyright may assign his interest, or any portion thereof, by making an entry in the register of the assignment, and of the (fi) Henderson v. Maxwell, 5 Ch. D. 892 ; 46 L. J., Ch. 891. (/) Coote V. Judd, 23 Ch. D. 727. &) Wrifffit V. Tallis, 1 C. B. 907 ; 14 L. J., C. P. 283. Stockdale v. Onwhyn, 6B. 4cC. 173. (/() Low V. Ward, L. R., 6 Eq. 415 ; 37 L. J., Ch. 841. (t) Routlcdge v. Loxc, L. R., 3 H. L. 100 ; 37 L. J., Ch. 464. As to copy- right in works and dramatic pieces, &c. Sublibhed abroad and afterwards pub- shed in this country, see Boucicault v. Belafield, 1 H. & N. 697 ; 33 L. J., Ch. 38 ; and see 49 & 60 Vict. c. 33 (The In- ternational Copyright Act, 1886). This Act, by sect. 8, applies the Copyright Acts to literary or artietio work (see sect. 1 1) first produced in a British Pos- session, unless otherwise provided under sect. 9. (A) Henderson v. Maxtcell, 4 Ch. D. 163. (/) Walter v. Uou-e, 17 Ch. D. 708 ; 50 L. J., Ch. 621 ; disapproving of Coe v. Land and Water Journal Co., L. R., 9 Eq. 324. (If) Sc/iovev. Schminele, 33 Ch. D. 546. (»i) Dicks V. Yates, 18 Ch. D. 76. See Schove V. Sehmxncke, supra. (w) See/w«<, p. 573. vwfW'^W^ ifrBf!R:^iraBwj»»VFW!5*pw»T SECT. IV.] COPYKIGIIT. 573 name and place of abode of the assignee, in the foim given in the schedule to the Act ; and the assignment so entered is expressly exempted from stamp duty, and is of the same force and effect as if it had been made by deed (o). The assignment of the copyright of a book consisting of or containing a dramatic piece does not, in the absence of an expressed intention that it should do so, pass 649 the right of representing or performing it, which may be the subject of a subsequent assignment to a third person (p). In the absence of any contract to the contrary, the assignor of the copy- right is still entitled to sell copies of the work printed before assignment (q). If the assignment is made abroad, it must be a valid transfer according to the law of the country in which it is made, to consti- tute the transferee " an assign " of the author within the meaning of the statute of Victoria (/•). Where an agreement in writing was entered into between an author and a publisher, whereby the publisher was to publish at his own expense and risk a certain work written by the author, and, after deducting from the produce of the sale of the work the charges for printing, paper, advertisements, and other incidental expenses, and the publisher's commission, the profits remaining of any edition that should be printed were to be divided equally between the author and the publisher, it was held that this did not amount to an agreement for the sale of the copyright, but that it was a mere personal contract, a kind of special agency which could not be assigned so as to give the benefit of it to any other publisher («). So long, hc»vever, as the publisher performed his part of the contract, he would be entitled to prevent the author from publishing a fresh edition, which might interfere with the sale of an edition on hand, or from putting an end to the agency without recompensing the publisher for all the expenses he had incurred (t). An assignment of a copj'right under the 5 «& 6 Vict. c. 45, must be in writing. Where the author of a song agreed verbally with S to part with his copyright, but subsequently by an instru- ment in writing assigned it to L, who entered it at Stationers' Hall, it was held that the title of L must prevail, and that he (o) See, as to the requisites of regis- tration, Woody. Boosey, L. R., 2 Q. B. 340 ; 3 Q. B. 223 ; 37 L. J., Q. B. 84. An assignment of a copyright must bo recorded in the ofBce of the Librarian of Congress within sixty days after its execution, or it will be void against any subsequent purchaser without no- tice. Sect, 4955, R. S. U. S. [p) Mavsh V. Conquest, 17 C. B., N. S, 418 ; 33 L. J., C. P. 319. {q) Taylor v. nilow, L. R., 7 Eq. 418. (y) Cocks V. Pimiay, 5 C. B. 860. («) Stevens v. ISenning, 1 K. & J. 174 ; 6DeG.,M. &G. 223; 24L. J., Ch. 153. Hole V. Bradbury, 12 Ch. D. 886 ; 48 L. J., Ch. 673. (0 Reade v. Bentley, 3 K. & J. 278. Tt 674 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. I m could maintain an action to restrain S from infringing his copy- right (m). Copyright — Li/rinffcmrnf of copyrigJit. — The 5 & 6 Vict. c. 45 {x)y provides for the recovery of damages from any person who causes a hook to be printed for sale or for exportation with)ut the consent in writing of the proprietor of the copyright ; or who imports for sale or hire any such unlawfully printed book; jr with a giulty knowledge sells, publishes, or exposes for sale or hire, or has in 550 his possession for sale or hire, any such book, without the con- sent of the proprietor (y). The Act guards against piracy of words and sentiments; but it does not prohibit writing on the same subject. Thus, in the case of histories, a man may give a relation of the same facts and in the same order of time ; and, in the case of dictionaries, an interpretation may bo given of the same words. The same principle holds with regard to charts ; whoever has it in his intention to publish a chart, may take ad- vantage of all prior publications (s) ; and there is no monopoly of the subject here any more than in the other instances ; the jury must decide whether it is a servile imitation or not («). If, how- ever, the great bulk of the work consists of a mere mass of pirated matter, or the appropriation is such that the effect must be to injure or supersede the sale of the original work, the author or composer of the work will be liable to an action for damages, and also to an injunction to prevent the sale of the work (i) ; and it is no answer to say that the appropriation was fully acknow- ledged, and made without any dishonest intention (c). The com- piler of a guide-book or du'ectory is not entitled to avail himself of the information contained in previous works on the same subject, but must obtain and arrange the requisite information indepen- dently for himself {d) ; and it is not sufficient for him to cut the (w) Leylaiidv. Stetcart, 4 Ch. D. 419 ; 46 L. J., Ch. 103. (x) This statute repeals the 41 Geo. 3, c. 107, and the 54 Geo. 3, c. 166. (y) Penalties are also imposed (sect. 17) upon unauthorized parties unlaw- fully importing books reprinted abroad, or knowingly selling, publishing, &c., such books, or having them in their possession for sale or hire: as to " iiii- latvfulhj importing" and " knowinglt/ Belling," see Cooper v. Whittingham, 16 Ch. D. 501 ; 49 L. J., Ch. 752. These penalties are cumulative upon the re- medy by way of action. Novella v. Sud- low, 12 C. B. 188. As to forfeiture of copies of piratical editions, see Belfe v. Delamotte, 3 K. & J. 681 ; and Holey. Bradbury, supra; and as to the protection in the colonies of works entitled to copy- right in England, 10 & 11 Vict. c. 96 ; and as to international copyright, 7 & 8 Vict. c. 12 ; 15 & 16 Vict. c. 12 ; 49 ^ 50 Vict. c. 33. Aranzo v. Mudie, 10 Exch. 203. Wood v. Chart, L. R., 10 Eq. 193; 39 L. J., Ch. 641. (z) Subject to the qualification stated in Kelly v. Morris, infra. {a) Cary v. Longman, 1 East, 302. Cary v. Keurslcy, 4 Esp. 168. Jarrold V. Jlouhton, 3 Kay & J. 708. (i) Campbell v. Scolt, 11 Sim. 38. Bokn V. Bogiie, 10 Jur. 420. Tinsley v. Lacy, 1 H. & M. 747 ; 32 L. J., Ch. 535. Hotten v. Arthur, 1 H. & M. 603 ; 32 L. J., Ch. 771. See Ager v. Fenin- snlar Telegraph Co., 26 Ch. D. 637 ; 63 L. J., Ch. 589. (c) Scott V. Stanford, L. R., 3 Eq. (18 ; 36 L. J., Ch. 729. (d) Kelly v. Morris, L. R., 1 Eq. 697 ; 36 L. J., Ch. 423. i;i SECT. IV.] COPYRIGHT. 575 Blips from the rival directory, and send persons round to ascer- tain their correctness (c). He may, however, use such slips for the purpose of directing his canvassers to the persons from whom the required information is to be obtained (/) . An autlior who lias been led by a former author to refer to older writers may, without committing piracy, use the same passages fi-om the older writers which were used by the former author {(j). The true principle is that, where one man for his own profit puts into his work an 551 essential part of another man's work, from which that other, but for the act of the first, might have derived profit, there is evidence of a piracy (h). If a person, under the pretence of writing a criticism upon an author's work, copies out the most attractive parts of it, and so large a quantity of the text as to injure and interfere with the sale of the work, the author or proprietor is entitled to an injimction («). But, where the reviewer or critic takes no more than is reasonably sufficient for a mere review or critique, an injunction will be refused (/••). A fair abridgment is in certain cases allowable, but not where it is merely colourable or evasive, and is so far a reproduction of the original work as to injure the sale of it (l). Copyright — Injunction. — An injunction to restrain an infringe- ment of copyright may be obtained by the grantee or assignee of a printed work, although he has not paid the author the price agreed upon for the writing of the work {m) ; but, before the court will interfere in his favour, it must be shown that he has a good legal title to the copyright (h). Where a person, being about to publish a periodical publication under a certain title, and knowing another publisher was engaged in the production of a periodical under a similar title, allowed the latter to continue his preparations without («) Morris V. Ashbee, L. R., 7 Eq. 34. (/) Motria v. Wright, L. R., 5 Ch. 279. (^) Pike V. Nicholas, L. R., 6 Ch. 251 ; 38 L. J., Ch. 529. (A) Bradbury v. Hotten, L. R., 8 Ex. 1 ; 42 L. J., Ex. 28. Ono author may copy from another, provided such copy- ing does not amount to more than fair quotations. Eut if tliis is exceeded to such an extent as to sensibly diminish the value of the original, or so as to sub- sti^ntially diminish the value of tlie au- thor's labour, there is an infringement of the copyright: Greene v. Bishop, 1 CUfiP. (U. S. C. C.) 186 ; Webb v. Powers, 2 W. & M. (U. 8. C. C.) 614 ; Folsom v. Marsh, 2 Story (U. S. C. C.) 100. So a bondjide abridgment is punishable : Law- rence V. Dana, i Cliff. (U. S. C. C.) 1. (i) Campbell v. Scott, 11 Sim. 31. Saunders v. Smith, 3 Myl. & Cr. 711. Bramwell v. Ilalcomb, 3 ib. 737. ik) Bell v. Walker, 1 Bro. Ch. C. 450. (/) Tonson v. Walker, 3 Swanst. 672. hn) Coxy, Cox, 11 Hare, 118. \n) Stevens v. Benning, 6 De G., M. & G. 223 ; 24 L. J., Ch. 153. An injunc- tion will not be granted in the first instance, where there is a doubt as to whether there has been an infringement {Blunt V, Batten, 2 Paine (U. S. C. C.) 397), nor if there is any doubt as to the existence of a copyright : Miller v. McElroy, 1 Am. L. Reg. 198. In other words, in order to entitle a person to an injunction, his rights and their 'v.'olation must be clear : Scribner v. Stoddart, 19 Am. L. Reg. (U. S.) 433 ; Lodge v. Stod- dart, 9 Rep. 825. Nor will an injunc- tion be granted where the publisher has been led into the violation by encourage- ment and acquiescence of the author : Cooper V. Mattheijs, 8 Law Rep. 413. ^ 576 iNJUUiKS TO KiaiiTS OF ruorEitTY. [chap. viir. i! il 4 !15 objection, and himself advertised it, it was hold that he could not restrain the latter from using the title, although as a matter of fact his periodical was published first (o) . Coj)i/n'(j/i( — P/of of a mccl. — Wliore the defendant represented the incidents of a published novel in a dramatic form upon the stage, it was held that this was not an infringement of the copy- right in the novel, as the defendant had neither printed nor multi- plied copies of the work (ju). But a person who prints a drama constructed out of a novel, infringes the copyright in the novel (7). CopijriyJit — limiiation of actions. — All actions for offences com- mitted against the Act must bo commenced within twelve months after the commission of the offence {r). This, however, docs not prevent an action for an injunction to restrain a piracy of copy- right by the sale of a book published more than twelve months before action brought («) . 552 Copi/riyht in lecturcit. — In all lectures printed and published by the author or his assigns, there is the same copyright as in printed books {t) ; and an injunction may be obtained to prevent persons attending lectures from taking notes and publishing such lectures for profit without the author's consent (?/). Whether the lecture has been committed by the lecturer to writing or not, the audience are only at liberty to take notes for their own personal purposes, and they may not publish the lecture for profit (.<■). Cojiyright — Piib/is/ied dmmus and musical compositions. — By the Copyright (Musical Compositions) Act, 1882 (//), the pro- prietor of the copyright in any musical composition first pub- lished after the 10th of August, 1882, or his assignee, who shall be entitled to and be desirous of retaining in his own hands exclusively the right of public representation or performance of the same, shall print or cause to be printed upon the title-page of :• i I (0) Maxivellv. Hogg, L. R., 2 Ch. 307 ; 36 L. J., Ch. 433. (p) lieade v. Conptent, 9 C. B., N. S. 755 ; 30 L. J., C. P. 209. Cimberlaml V. Copeland, 1 H. & C. 194 ; 31 L. J., Ex. 363. Iq) Timhy v. Laci/, 1 H. & M. 747 ; 32 L. J., Ch. 535. (*•) 5 & 6 Vict. c. 45, 88. 24, 26. As to articles published in magazines and periodical works, see Maghav v. Max- tvell, 1 Johns. & H. 312. («) Jlogg V. Scott, L. R., 18 Eq. 444 ; 43 L. J., Ch. 705. In thia country the action must be commenced within two years from the date of the infringement. (<) 6 & 6 Vict. c. 45. By the 5 & 6 Wm. 4, c. 65, vesting the sole right of printing and publishing lectures in the author and his assigns, penalties are im- posed upon all persons taking down, or making a copy of such lectures, and 1>rinting or otherwise copying and pub- ishing them, without leave of the author or his as8ig*\8, and upon all persons selling or publishing copies, &c., or exposing them for sale without consent, &c. These penalties are cumulative upon the common law remedy by way of ac- tion [lieckford v. Hood, 7 T. R. 627) ; but it is provided (sect. 5), that the Act shall not extend to lectures of which notice in writing has not been given to two justices, in manner therein men- tioned, nor to lectures delivered in a university or public school or college, or on a public foundation, &c. (m) Abernethy v. HutchinsoH, 1 H. & Tw. 40 ; 3 L. J.. Ch. 209. (x) Nkoh V. I'Uman, 26 Ch. D. 374 ; 53 L. J., Ch. 552. ((/) 45 & 46 Vict. c. 40. SECT. IV.] COPYRIGHT. 577 every published copy of such nuisioal composition a notice to the effect that the right of public representation or perfonuance is reserved (s). Wher" one man employs anotlior, for reward, to compose a musical or dramatic piece, the composition booomes, upon i)ayment, the properly of the employer (r/). But a mere contract to write a play will not vest the copyright in the employer, although part of the price agreed upon is paid ; nor will the employer become joint owner with the writer by reason of alterations, even to the extent of a whole scene, having been made by others at tlie suggestion and expense of the employer (b). To constitute a joint authorship of a dramatic piece or other literary work, it must bo the result of a preconcerted joint design {b). A dramatic production, to be entitled to copyright, must bo an original work, and not a mere copy of novels or works of fiction, in which there is an existing copyright. If, however, the drama is partly made up of new 553 matter, the composer will be entitled to copyright in such new original matter (<•). If a musical composer adapts words of his own to an old air, he acquires a copyright in the combination {(I). So, if he arranges an opera for the pianoforte, such an arrangement is an independent musical composition, of which he, and not the composer of the opera, is the author for purposes of registration, although it does not follow that he would not infringe the copyright of the original author by such an arrangement {e). The publication in this country of a dramatic piece or musical composition as a book before it has been publicly represented or performed, does not deprive the author or his assignee of the exclusive right of representing or performing it (/). The author of a dramatic work which had been first represented in a foreign country was not entitled to any exclusive right of re- presentation in this country, the representation of a dramatic work being a publication of it within the meaning of the 7 Vict. c. 12, s. 19 (y). But the English assignee of the copyright of a foreign musical composer was within the protection of the statutes ; and so, it would seem, was a foreigner who resided and published in {z) If the right of public performance and the copyright are vested in different owners, the owuer of the right of public performance may require the owner of tho copyright to print the notice on any copy of the music to be thereafter pub- lished ; and the owner of the copyright must print such notice or be liable to a penalty of 20/. 45 & 46 Vict. c. 40, B8. 2, 3. («) Nation V. ITean, 7 C. B., N. S. 208 ; 29 L. J., C. V. 20. (A) Zen/ V. Jtutlei/, L. R., 6 C. P. 523 ; 40 L. J., C. P. 241. ((•) Cari/ V. Longman, 1 East, 360. {(I) Loicr V. Diwidsuii, 1 C. B., N. S. 182. (f) V'ooil V. Boosei/, L. R., 2 Q. B. 340 ; 3 Q. B. 223 ; 37 L. J., Q. B. 84. (/■) ChappeU v. liooseij, 21 Ch. D. 232; 61 i,. J., Ch. 625. {g) BoHcicault v. ChatUrton, L. R., 6 Ch. D. 267 ; 46 L. J., Ch. 305. P P 678 INJURIES TO RIGHTS OP PROPERTY. [CHAP. VIII. i .1 iil M I ; ;1 '. i ! i I { i ■ ■ England (//) ; but not a foreigner wlio resided and published abroad (<). Dramatic and musical compositions aro within the new statute (49 & 50 Vict. c. 33) (/•), and authors of works first published in one of the countries, parties to the convention of the international conference at Borne, 1885, have copyright in such works through- out the other countries ; and by sect. 5 (I), where a book or dramatic piece is first prodticcd in a foreign country, it is protected from being published in a translation in the United Kingdom. The Copyright Acts are also, by sect. 8, made applicable under certain conditions to " literary oi: artistic works " {k), first produced in a British Possession. To constitute an infringement of dramatic copyright a material and sul *antial part of the plaintiff's dramatic production must bo pirated. Though an appreciable part is taken, it does not follow as a consequence of law that the plaintiff's right is infringed, if Buch part is of a very unessential nature, or very unimportant and trifling in relation to the effect of the whole composition (/). 664 To publish, in the form of quadrilles and waltzes, the airs of an opera is an act of piracy (h). Copyright — Unlawful representation of dramatic pieces and musical compositions. — The !j & Q Vict. c. 45, ss. 20, 21, and 3 & 4 Wm. 4, c. 16, vesting the sole and exclusive right of representing or per- forming dramatic pieces or musical compositions in the author and his assigns, impose penalties on all persons who, during the con- tinuance of the right, represent or cause to be represented, ^vithout the consent in writing of the author or proprietor, such dramatic pieces or musical compositions at any place of dramatic entertain- ment. These penalties are given as an alternative remedy, the author or proprietor having the option of either suing for the penalty or bringing an action for all the profit accruing from the representation, or all the loss he has sustained, at his election ; but the action must be brought within twelve calendar months (o). An assignment of the copyright of a book consisting of, or con- taining, a dramatic piece or musical composition, does not convey the right of representation to the assignee, unless the intention of the parties to that effect is duly registered (p). But an express assignment of the right of representation, although joined with an (A) D'Almaine v. Boosei/, 1 Y. & C. (Ex.) 288. (t) JDelondre v. Shaw, 2 Sim. 237. Ik) Sect. 11. [l) Chattcrton v. Cave, L. E., 10 C. P. 572; 2 C. P. D. 42; 3 Ap. Cae. 483; 47 L. J., C. P. 645. (n) lyAlmaine v. Boosey, 1 Y. & C. (Ex.) 288. (o) 3 & 4 Wm. 4, c. 15, ss. 2, 3. Where not more than 40«. penalty or damages are recovered the costs are in the discretion of the court. 45 & 46 Vict. c. 40, B. 4. {p) 6 & 6 Vict. c. 45, 8. 22. (PWUMipi I I" •i^l-i SECT. IV.] corvRiaiiT. r>79 and assignment of the copyright, does not require rogistration to entitle the assignee to sue for penalties (7). The part-owner of a dramatic entortftiinuont (;aunot grant a license for its representation without the consent of all the other owners (/•). No one can bo considered an offender against these statutes so as to be liable to an action at the suit of an author or proprietor, unless, by himself or his agent, ho actually takes part in the repre- sentation («). But the lessee of a theatre, who lets the same, together with the actors, properties, &.C., to a third person, for one night, for the purpose of taking a benefit, will bo liable, if by the direction of such person a piece is performed without the consent of the author (<). In the case of the infringement of copyright of a musical com- position, the person having the sole liberty of representing it under 5 & 6 Vict, c, 4/5, s. 20, is entitled to recover tbn penalty of 408. given by 3 & 4 Wm. 4, c. 15, s. 2, although such musical compo- sition has not been '* represented at any place of dramatic enter- 656 tainment " (") • But in infringements of copyright of dramatic representation no penalty can bo recovered unless the representa- tion took place at a place of public entertainment ; and a room in a hospital, to which nurses and attendants were admitted free of charge, was held not to be such a place (x) . A dramatic representation in which a substantial and material part of the music of an opera has been performed, constitutes an infringement of the sole right of performing that music, oven though the operatic score of the representation complained of may have been obtained by independent labour bestowed upon an un- protected pianoforte arrangement of the original operatic score (y). Where A wrote and published a novel which he afterwards dramatised, but the drama was never printed, published, or repre- sented upon tho stage, and £, in ignorance of A''b drama, also dramatised the novel, and assigned his drama to the defendant, who represented it upon tho stage, it was held that the representa- tion of ^'s drama was not a representation of A'b drama (s) ; but, where the plaintiff published a drama called " Gold," and then printed and published the drama in the form of a novel, and the defendant's son dramatised the novel without having seen or known of the plaintiff's drama " Gold," but the consequence was & C. C. B L.'J. B. & w Lacy V. ItJiys, 4 B. & S. 873 ; 33 , Q. B. lo7. Marsh v. Conquest, 17 , N. S. 418; 33 L. J., C. P. 319. Powell V. Head, 12 Ch. D. 68G ; 48 , Ch. 731. Jiimell V. liriant, 8 C. B. :36; 12 ., C. P. 33. Zyon v. Knowks, 6 S. 751 ; 32 L. J., Q. B. 71. Marsh v. Conquest, supra. («) Wallw. Tai/lor, 11 Q. B. D. 102; 52 L. J., Q. B. 658. (.i) J)iic/c V. Jiales, 13 Q. B. D. 843; 63 L. J., Q. B. 338. ((/) Hoosri/ V. Fuirlie, 7 Ch. D. 301 ; 47 L. J., Ch. 180. (:) Tuoh V. Young, L. R., 9 Q. B. 623 ; 43 L. J., Q. B. 170. pp2 I: I I'S 680 INJUHIKH TO Hiairrs or pkopkimv. [cirAP. viii. that muuli of tho ilruiua, wliidi tho (Iffciidant caused to bo rt'pro- Bonted, was tho sumo aH tho plaintifF's, it was hoM tliat this ropre- Bontatioii was an iiifringomoiit of tho stago copyright in tho drama (^/). Copifriijht — Sciiip/iirv. — Tho 8culpturo Cojjyright Act, 1814 {li), vosts tho solo right of property in ovory now, original Houlpture, modol, copy, cast, and bust, for a cortaln torm, in tho person who makes or causes it to bo made, provided tho niinut of sucli person, and tho date of publication, uro )»ut on the work Ix^foro it is put forth or published. A remedy for tho infringement of tho right of property by persons making or importing copies, or exposing for flulo, or disposing of, i)iratod copies, or pirated casts, without the consent of the proprietor, is provided ; but tho aetion must bo brought within six calendar months after tho discovery of tho offence (r). Cupi/n'(j/it — P((iiifiii(jii, (h'duiiKjx, (iiul pliotoyraphs. — The 25 & L'G Vict. c. G8, 8. 1, confers upon tho authors of paintings, drawings, 556 ond photographs, and their assigns, the sole and exclusive right, for tho life of tho author and seven years after liis death, of copying, engraving, reproducing, and multiplying them, and tho designs thereof, and photograjjhs, and tho negatives thereof, and penalties are imposed upon persons who repeat, copy, coloiirably imitate, or otherwise multiply for sale, hire, exhibition, or distri- bution, or cause to bo repeated, «&c., any painting, drawing, or photograph, in which there shall be subsisting copyright, without the consent of tho proprietor of the copyright ; also for knowingly importing, selling, &c., repetitions, copies, &c., unlawfully made ; also for fraudulently affixing names, &c. to any painting, drawing, or photograph, and doing various other specified things in deroga- tion of the rights of tho owner of the copyright. All these penal- ties are cumulative upon tho remedy by action, and upon any other remedy to which any person aggrieved may be entitled ( L.^ ^Hfmmtflifi^iWirfm "^»»llp^f*»"»»"~ NKcr. iv.J COl'YKItiin 581 Whoro two partnors rogistorod t1ionisolvo« iindor Q^> ^ 2() Viet. 0. (JH, as tho projiri<'t')rs nii•). Where there is a sole proprietor, the surname alone without the christian name is siifficient (s) ; but the addition of the words " and com- pany " in such a case makes the registration inval:. 1 (^). The copyirg of prints and engravings by photography, or by any other process by which prints or engravings may be imitated or copied, is within the mischief intended to be provided against («) ; and so is the selling of a copy witli colourable variations (^) 558 But where the proprietors of a periodical issued a pattern for woolwork, consisting of the figures in Sir John Millais' picture, " The Huguenot," with a different background, it Vf as held that this did not infringe the copyright of the engravings of the picture (i/). A book in the nature of an illustrated advertising catalogue may be the subject of copyright (s). Books containing designs and prints which are mere illus- trations of the letter-press, are protected by the 5 & 6 Vict. 0. 45 (a). The 8 Geo. 2, c. 13, made it necessary to prove knowledge la proceedings against a person for selling a pirated engraving or print. Tho 17 Geo. 3, c. 57, which was paei^ed to amend the former Act, omits the word " knowingly," a^d er^bles the person having a copyright in a print or engraving to maintain an action against persons found selling pirated copies of it, without proof of guilty knowledge (A) . Copyright — Useful and ornamental designs (c) . — The 46 & 47 Vict. 0. 57 (amended by 48 & 49 Vict. c. 63), consolidating the laws (o) 17 Geo. 3, c. 67. \p) 24 & 25 Vict. c. 101. (q) 8 Geo. 2, c. 13, 8. I ; 7 Goo. 3, c. 38, 88. 2—8. ((•) Rock V. Lazarim, L. R., 15 Eq. 104; 42 L. J., Ch. 105. (») Newton v. Cowie, 4 Bin^'. 234. \t) Graves v. Ashford, L. R., 2 C. P. 410; 36L. .T., C. P. 139. (m) Gambart v. Ball, 14 C. B., N. S. 306; 32 L. J., C. P. 166. Graves v Ashford, L. R., 2 0. P. 410; 36 L. J., C, P. 139. ix) West V. Francis, 6 B. & Aid. 742. \y) Dicks v. lirooks, 16 Ch. D. 22 ; 49 L. J., Ch. 812. (z) M.tple V. Junior Army and Navy Stores, 21 Ch. D. 369 ; 52 L. J., Ch. 67. («) Ante, p. 552. Bogt(e v. Houhton, : De G. & S. 273 ; 21 L. J., Ch. 470. (A) Gambart v. Sumner, 6 H. & N. 8 ; 29 h. J., Ex. 98. The International Copyrijrht Act, 1886, applies, ree .sect. 1 1 . (c) MUUngen v. Pickeu, 1 C. B. 799 ; 14 L. J., C. P. 254. Reg. v. Bcssel, 16 Q. B. 810. SECT. IV.] COPYKIGHT. 683 of relating to paten^.s, designs, and trade-marks, by Part III. ss. 47, 48, 49, 55, provides for the registration of deiigns. By sect. 50, where the design is registered, the proprietor is to have a copy- right for five years, to be forfeited if he fails to furnish to the comptroller the prescribed number of specimens of the design before delivery on sale of any article (sect. 50) ; or if he fails to mark each article, unless he can show that he took all proper steps to insure the marking (sect. 51) (d). The copyright also ceases where a registered design is used in manufacture in any foreign country, and is not used in this country, within six months of its registra- tion in this country (sect. 54) (c). A penalty, not exceeding 50/., to be recovered as a debt, or an action for damages, is the remedy provided for piracy of designs by sects. 58 and 59. A design to be registered must inv'olve a substantial novelty between it and any design previously in use (,/'). If the inventor, instead of describing the design in words, prefers to place the design itself upon the register in the shapo of part of the article designed, the design will be infringed by the 659 sale of an article to all appeaiance the same, though not actually identical (*/). Copies of drawings, photographs, or tracings of the design must be furnished to the comptroller (//) . A combination of old designs must, in order to obtain the statu- (d) JFittman v. Oppcuhclm, 27 Ch. D. 2C0. An innocent infringer will have to pay the costs of a motion for injunc- tion. Ibid. By section 4929 of Rev. Stat, of U. S.j relating to patents, it is provided that "Any person who, by his oyra industry, genius, efForts and expense, has invented and produced any now and original design for a manufuc- ture, bust, statue, alto relievo, or has relief ; t,uy new and original design for the printing of woollen, silk, cotton, or other fabrics ; any new and origiiial impression, ornament, patent, print, or picture to bo printed, painted, cast, or otherwise placed on or worked into any article of manufacture ; or any new, useful and original shape or configura- tion of any article of manufacture, the same not having been known or used by others before his invention or production thcreoi, or patented or described in any printed publication, may, upon payment of the fee prescribed and other due proceedings had, the same as in cases of inventions or discoveries, obtain a patent therefor. Section 4931. Patents for designs may be granted for the term of thrre years and six months,, or for seven years, or for fourteen years, as the applicant may, in his apphcation, elect. Section 4932. Patentees of designs issued prior to the 2nd day of March, 1861, shall be entitled to extension of their respective patents for the term of seven years, in the tame manner and under the same restrictions as are pro- vided for the extension of patents for inventions or discoveries issued prior to the 2nd day of March, 18G1. Section 4933. All the regulations and provisions which apply to obtaining or protecting patents for inventions or dis- coveries not inconsistent with the provi- sions of this title, shall apply to patents for designs. [e] As to the exhibiting at industrial and international exhibitions, &o., not in- validating registraiion, oee sect. 67 ; and as to such exhibitions held out of the United Kingdom, see 49 & 60 Vict. c. 37, 8. 3. (/•) Z« May V. Welch, 28 Ch. D. 24 ; 54 L. J., Ch. 279. (o) McCrea v. Holdsuorth, L. R., 6 Ch. 418. (A) See sect. 48, "exact representa- tions or specimens of the design." ur III 584 INJURIES TO RIGHTS OF PPOPERTY. [CIIAP. VIII. 1^ I II I ! tory protection, be one new design, forming a new and original combination, and not a mere multiplication of old designs (/). The proprietor of a design duly registered loses the benefit of the Acts, unless the proper registration marks are attached to all articles and substances to which the design is applied, whether the aame are sold abroad or in the British dominions (A). No one is entitled to register a design and to sue f >r an infringe- ment, imless he is either himself the designer or has bought the design for valuable consideration. Where, therefore, the plaintiff had bought an article abroad, and had registered the design, it was held that ho was not entitled to 3ue for an infringement (/). The proprietor of the design is the person who has the right to apply it to the manufactured article (m). A partial assignment of, or license to use, a design must be in writing, and can only be made by a registered proprietor {in). Patent right. — An inventor of a new design has no right at common law to the exclusive property in his own invention. He may, of course, conceal his discovery from vae world, but the moment he publishes it his exclusive right to it is gone (h). How- ever, *' where any man by his own charge or industry, or by his own wit or invention, doth bring any new trade into the realm, or any engine tending to the furtherance of a trade that never was used before, and that for the good of the realm, in such cases the king may grant to him a monopoly patent for some reasonable time until the subjects may learn the same, in consideration of the good that he doth bring by his invention to the commonAvealth, otherwise not" (o). This prerogative of the Crown, which is the original source from which the existing law and practice of letters (U. S. C. C.) 580 ; Brooks v. Jeiikim, 3 McLean (U. S.) 432. As to what con- stitutes a public use, sec Trendwell v. Ulaileii, 4 Wash. (U. S. O C.) 703 ; Itt/du V. Goodwill, 3 Sura. (U. S.) 514 ; Bedford V. Uuitt, 1 Mass. (IT. 8.) 302 ; Umiders v. Lofjan, 2 Fisher, 167. (»>) Jewitt V. Erckhmdt, 8 Ch. D. 404. («) Biivergier v. Follows, 10 B. & C. 829. See Canhain v. Joues, 2 V. & B. 218. Tie communication of his secret to one person, however, in conAdence, ia not a publicatio: {Morgan v. Seaward, 2 M. & W. 644), and will not, therefore, if it goes no further, prevent another person taking out a patent subsequently for the same invention. Jones v. r:arce, 1 Webst. E. 122, 542. Lewis v. Marling, 10 B. & C. 22 ; and as to publishing by- exhibiting at exhibitions, see ante, y. 658. (a) Larcij y. Allin, Noy, 182. And see 3 Inst. 184. f») Norton V. Mcholls, 1 El. & EI 761. Harrison V. Taylor, 3 H. & N 301. (A) Sarazin V. Hamel, 32 Beav . 151 32L J., Ch. 380. w Lazarus V . Charh'K, L R., 16 Eq 117 ; 42 L. J., Ch. 105. Ah to what is "a new and original dcsi:.:n," see Adaius V. VlemenlsoH, 12 Ch. D. 71* ; Morton v. X. Y. Eye Infrinary, 5 Bl. (U. S. C. C.) 116. The patentee may experiment, for the perfection of his invention : Cox v. Griggs, 2 Fisher (U. S.) 174 ; Kendall v. Winson, 21 How. (U. 8.) 322 ; IFyeth v. Stone, 1 Story (U. 8.) 273 ; Winaiis v. R. M. Co., 2 Bl. (U. S. C. C.) 279 ; but if he suffers it to go into public use by any means whatever, without an immediate assertion of his right, he is not entitled to a patent : Whiltemore v. Cutter, 1 Gall. (U. S.) 478 ; Shaw v. Cooper, 7 Pet. (U. S.) 292 ; Bedford v. Hunt, 1 Mass. (U. S.) 302; Parker v. Stiles, 5 McLean (U. S.) 44 ; Watson v. Bladen, 4 Wash. ■■.■.■:*^^<.iJ-ik „.■■.. ,-L W'WiPf' TWfffffJfWfPWlfF m 'III. at of o all the SECT. IV.] PATENT RIGHT. 585 was patent for inventions are derived, and on which (subject to the 660 modifications subsequently introduced by stntute) they still re8t(/>), was confirmed by the Statute of Monopolies (21 Jao. 1, c. 3), which is now repealed. It results from the principles mentioned above that a patent was a kind of equitable contract made by the Sovereign with the patentee, or a purchase made by the discoverer of an invention from the Sovereign acting on behalf of the public, the considera- tion for such purchase being the novelty and utility of the invention discovered or first introduced into this country by the patentee (q), and the condition precedent to the validity of such contract or purchase being, that after the lapse of the prescribed period the inventor shall make public his invention for the general benefit (/•). Now, however, a patent has to all intents the like effect against the Crown as it has against a subject (s) ; but the authorities of the Crown may use the invention for the services of the Crown by agreement or on terms settled by the Treasury after hearing the parties (/) . Provisions are also made for the assign- ment to the Secretary for War of certain inventions for improving instruments or munitions of war (ti). Any person, whether a British subject or not, mny make an application for a patent ; and two or more persons may make a joint application (x). Patent — First inventor. — An application must be by " the true and fii'st inventor "(y). "It is a material question," saj's Tindal, C. J., " to determine whetlier the party who got the patent was the real and original inventor or not, because these patents are granted (p) See Fcal/iei- v. The Qiireii, G B. & S. 257; 3)L.J., Q. B. 200. (q) See WiUiamH v. WiUiama, 3 Mer. 160; 11 East, 107. Cartright \. Eaimr, cited U Ves. i;U, 133. (»•) Lord Tentordeii, C. J., Crumpton V. IhboUon, Dan. & Lloyd, 33. Gibbs, C. J., Wood V. Zimmci; Holt, 58. Ab- bott, C. J., in tiavori/ v. rrkr, Ry. & M. 1. W 46 & 47 Vict. c. 57, s. 27 (i). {I) Sect. 27(2). («) Sect. 44. (x) 46 & 47 Viirt. c. 57, s. 4, consoli- dating the law ; and 48 & 49 Vict. c. 63, 8. 5. Section 4880 of Revised Statutes of United States, provides that " Any person who has invented or discovered any new and useful art, machine, manufac- ture, or composition of matter, or any new and useful improvement thereof, not known or used by others in this country, and not patented or described in any printed publication in this or any foreig7i country, before his invention or disco very thereof, and not in public use or on sale for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by law, and other due proceedings had, obtain a patent therefor." The fact that a patent for the same invention has been obtaine.l in a foreign country does not prevent the granting of a patent here, unless the invention has been iutroduced into public use for more than two j'ears prior to the appli- cation. But where a patent is granted here for an invention also patented in a foreign country, it must be so limited as to expire at the same date with the fo- reign patent, or if there are more than one, at the same time with the one hav- ing the shortest time to run. Section 4887. ((/) 46 & 47 Vict. c. 57, s. 5 (2) ; Jloveij v. Stevens, 3 W. & M. (U. S. C. C.) 17 ; Ecans v. Eaton, 3 Whei.t. (U. S.) 451 ; Barrett v. Ilatl, 1 Mass. (U. S.) 447 ; Woodcock V. Parker, 1 GaU. (U. S.) 438. \i M: I I {I m M !l '!' ill I ^' ill 586 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. as a reward, not only L. the benefit that is conferred upon the public by the discovery, but also to the ingenuity of the first inventor ; and, although it is proved that it is a new discovery so far as the world is concerned, yet, if anybody is able to show that, although that was new, the party who got the patent was not the man whose ingenuity first discovered i^ ; that he had borrowed it from A ox B (c), or taken it from a book that was publicly circu- lated in England («), and which was open to all the world ; then, although the public had the benefit of it, it would become a a important question whether he was the first and original inventor 561 of it" (6). There is nothing, however, to prevent him from employing his servants in assisting him to bring a design to per- fection, or to work out an idea first suggested by him (p), or from employing third persons for such a purpose (rf). He is still tho true and first inventor. If there are two persons, actual inventors in this country, who invent the same thing simultaneously, he who first takes out the patent is the first and true inventor {c). In the case of a joint application, it is sufficient if one or more of the applicants are the true and first inventors (/). If a person possessed of an invention dies without making application for a patent, a patent may be obtained by his legal represtntative (j/). Such application must be made within six months, and the applicant must declare that he believes the deceased to be the " true and first inventor " {h). A question arose whether a man could be called a first and true inventor, who, in the popular sense, had never invented anything, (r) Barber v. WaMuch, cited 1 C. & P. 667. (a) Stead v. WilUams, 7 M. & G. 818 ; . 2 Webst. P. R. 126. Ileiirteloiip's Case, 1 Webst. R. 553. Plimpton v. Man,olmaoii , 3 Ch. D. 531, 658 ; 45 L. J., Ch. 505. (A) Cornish v. Keciie, 1 Webst. R. 507. (V) Mi7iter v. Wells, 1 Webst. R. 132. [d) Bloxam v. Elsee, 1 C. & P. 658. The fact that the inventor has made inquiries or sought information from scientific persons, does not defeat an in- ventor's right to a patent {O'lteitlei/ v. Morse, 16 How. (U. S.) 62) ; nor does the circumstances that suggestions were made to him by others, unless the idea of the principle was sxiggested to him. Thomas v. Weeks, 2 Paine (U. 8. C. C.) 92 ; Allen v. Bcwey, 1 Story (U. S.) 336; Matthews t. Skates, 1 Fisher, 602 ; I'ilts V. Hall, 2 Bl. (U. S. C. C.) 229. To defeat a patent it must appear that the invention was substantially communicated to the patentee by some other person, so that, without the exer- cise of any inventive power of his own, be could have applied it to practice. Matthews v. Skates, 1 Fish. 602. See Forbiish v. Cook, 2 Fish. 668. I* .vill not render a patent void that, at tho time it was issued, experiments were being made by others, which re- sulted in the same discovery. Allen v. Hunter, 6 McLean (U. S. C. C.) 303; Cox V. Griggs, 2 Fish. 174. Tho rulo is, that whoever finally perfects a ma- chine, and renders it capable of useful operation, is entitled to a patent, though others may have had the idea, and made experiments towards putting it into practice ; and although all of the com- ponent parts may have been known under a diflPerent combination, or used for a different purpose. Washburn v. Gould, 3 Story (U. S.) 122 ; Many v. Sizer, 1 Fish. 17 ; Singer v. Walmsleg, id. 658 ; Matthews v. Skates, id. 602. (e) Plimpton v. Maleolmson, 3 Ch. D. 531, 656 ; 45 L. J., Ch. 505. (/) 46 & 47 Vict. 0. 67, s. 5 (2). Ah to the declaration to be made, see 48 & 49 Vict. c. 63, 8. 2. (ff) 46 & 47 Vict. c. 57, 8. 34 I (A) Sect. 34 (2). SECT. IV.] PATENT KIGUT. 587 but who, iiaving learned abroad (that is, out of the realm, in a foreign country) that somebody else had invented something, quietly copied the invention, and brought it over to this country, and then took out a patent. It was decided, that, if an in^'ention is ncAV in England, the person who introduces it into the realm is the first and true inventor, although it may have been practised out ot . /ealm before (/). But, if the invention is publicly known in any pai-t of the realm, in Ireland, for instance, or the colonies, he is not the true and first inventor (A). ^. patent granted to a British subject, in his own name, for an invention communi- cated to him by a foreigner, the subject of a state in amity with this country, is not void, although such patent is in truth taken out, and held by the grantee, in trust for such foreigner (/) . Where an arrangement is made by the government of this country with that of a foreign state (to which the section has been declared applicable) (m) for mutual protection of inventions, designs, and trade marks, any person who has applied in such foreign state shall be entitled to a patent, &c., in priority to other applicants, and such patent, &c. shall ht ve the 3ame date as the date of the foreign protection («). 562 If the invention is new and useful, it is not material whether it results from long experiment, profound research, and great expense, or from some sudden and lucky thought, or meie accidental discovery (o). By sect. 11, any person, within two months of the advertisement of a complete specification, may give notice of opposition on the ground of the applicant having obtained the invention from him, or on the ground that the invention has been patented in this coimtry, or that the specification appears to the examiner to com- prise the same invention as one already patented (/>). Patents can be granted for one invention only, but may contain more than one claim. No objection can be taken to a patent on the ground that it comprises more than one invention (q). A (i) Edgeberry v. Stephens, 2 Salk. i66. Plimpton V. Makolmson, 3 Ch. D. 631, 555 ; 46 L. J., Ch. 605. Seo Otto v. Steel, 31 Ch. D. 241 ; 65 L. J., Ch. 196 ; post, p. 565. {k) Brown v. Annandale, 1 Webst. B. 433. Roebuck v. Stirling, 1 Webst. R. 45, 461. (/) Beard v. Egcrton, 3 C. B. 97. (w) Sub-sect. 4, of sect. 103, infra. («) 46 & 47 Vict. 0. 57, s. 103. The application must be within the time limited by the section (see also scot. 6 of 48 & 49 Vict. c. 63), and the publication here daring such period will not invali- date the patent. The above section is made applicable to the colonies and-. India in certain cases by sect. 104. (o) Crane v. Friee, 4 M. & G. 605, per Tindal, C. J. (p) The patent is in general to be sealed within fifteen months from the date of application, but to be dated and sealed as of the day of application, and provisional protection is given during the period between the date of applica- tion and the date of sealing. Sects. 12—15. Seo also sect. 3 of 48 & 49 Vict. 0. 63. (}) Sect. 33. :!!! Eli ^ \ i '! :;.:;! IM, Ml I l!IB i 588 INJUKIKS TO KIGHTS OF PUOPKUTY. [CIIAP. Vllf. patent granted to the first inventor is not invalidated by an appli- cation in fraud of him. Patents — Duration. — By sect. 17, the duration of a patent is four- teen years ; but it ceases where the patentee fails to make proper payr^ents ; and the term may be extended for a further term upon application (r). Patents — T/ie suhjcd-matter. — The subject-matter of tho grant is "any manner of new manufactures" (s). The word "manufac- (r) Sect. 25. (») 46 & 47 Vict. c. 67, s. 46. A. new and improved method of prodiiciiiff a uHcful result or effect in as much the subject of a patent as an entirely new machine : Wintcrmtile v. Redingloii, 1 Fish. 239 ; Karnes v. Cooh; 3 Fish. HG. A patentee need not take a separate patent for each new patentable matter ; he may, if he desire, limit his rifjfht to their use in combination : lln'in v. Mime, 6 West. L. J. 372 ; and if he borrowed the idea of the different parts which fjo to constitute his invention, and for tho first time brouffht them together into one whole, which is miitorially different from any whole that existed before, ho is the original and first inventor : Miniij V. Sizer, 1 Fish. 17. A combination, though simple and obvious, yet, if en- tirely new, is patentable ; and it is no objection that up to a certain point it makes use of old machinery : Earlc v. iSairi/er, 4 Mass. 1 . A nd this is so whether the machines be old or new : llarrelt v. Hall, 1 Mass. 447 ; Fitts v. ir/iitmaii, 2 St. 609 ; Juaim v. Katoii, Pet. C. C. 323 ; Fennock v. Dialogue, 4 W. C. C. 68 ; Fain V. Morse, 6 West. L. J. 372 ; Can- v. Rice, I Fish. 198; Wintermitte \ . Reding- ton, id. 239 ; Lalta v. Shawk, id. 466 ; lee V. Blandji, 2 Fish. 89. A patent for a combination of mate- rials is good, if substantially new, though none of the ingredients be new or unused before for the same purpose : Ibjan v. Goodtfin, 3 Sum. 614. But a patent for a combination cannot be supported by evidence of novelty of one of its parts. To be patentable, it must effect a new result, or an old result by a new made of action ; there must be novelty either of product or process : Fatten v. Claijtou, 2 Whart. Dig. 408. And where one part of a combination is new, the com- bination i.s a new one, though tho other parts may be old : Hall v. Wtles, 2 Bl. (U. S. C. C.) 194. If a combination includes new patent- able matter with old matter not patent- able, it makes a new patentable com- bination : Fain v. Morse, 6 West. L. J. 372 ; Lee v. Ftandy, 2 Fish. 89 ; and it is immaterial whether the elements com- posing it be new or old, if novelty exists : Fuck V. Hermanec, 1 Bl. C. C. 398 ; Lee V. Flandy, 2 Fish. 89. But a change from a former one must bo substantial, and must involve skill, ingenuity and mind : J[all v. Wilrs, 2 Bl. {U. S. C. C.) 194 ; Hori'ij v. ITeiny, 3 West. L. J. 153. The new article nnist differ from tho (-1:1 one, not only in its mechanical con- trivances and toustrui'tion, but in its prnciticnl operation and efietit in pro- ducing the useful result. To support a patent for a combina- tion, the combination itself of the nmchiuery must be novel ; it is not enough tliat it brings a newly dis- covcro;! principle ii.to practical applica- tion, which was not claimed as part of the discovery: Le Rnr/ v. Tathaiii, 14 How. (U.S.) 166; ll'uv.^ v. Hniry, 3 West. L. J. 163. Thus a claim for a combination of several devices, so com- bined as to produce a particular result, is not valid as a claim for " a:iy mode of combining those devices which would produce that result; " and can only bo sustained as a valid claim for the pecidiar c-.Hiliiuation of devices invented and described : Case v. Jlrouii, 2 Wall. 320. And see Furr v. Duryce, 1 Wall. 631 ; Stone v. Sprague, 1 St. 270. It is decisive evidence that a new mode of operation has been introduced, that in consequence of a new combina- tion of parts, it is a materially better machine : Forbush v. Cook, 2 Fish. 668. A patent for a combination of three distinct things is not infringed by com- bining two of them with a third, which is substantially different from the third element described in the specification : FroHly V. RiK/gks, 16 Pet. 336 ; Silsby v. Foote, 14 How. (U. S.) 219; McCormick v. Talcott, 20 How. (U. S.) 403 ; Vaiiee V. Campbell, 1 Bl. 427 ; Fames v. Godfrey, 1 Wall. 78 ; Frooks v. Jenkins, 3 McLean, 432 ; Frooks v. Ficknell, 4 McLean, 70; Furkcr v. JTaKorth, id. 370 ; Pitts v. Weinple, McLean, 558 ; Jjatta v. Shairk, 1 Fish. 465 ; Singer v. Walmsley, id. 658 ; Lee v. Flandy, 2 Fish. 89 ; Dodqe v. Card, id. 116. To constitute an infringement of a patent for a combination, the defendant must have used the same combination, constructed and operated substantially in the same way {Gor/iam v. Mixtcr, 1 Am. L. J. 539) ; and where a patent is granted for a combination of mechanical devices, none of which axe an original ■^•imm!ff^!mwWf!f!W*m!W ^m SECT. IV.] PATENT UIGHT. 689 tiire" in the statute may bo construed in one of two ways. It may mean the machine when completed, or the mode of con- structing the machine {t). '• The word * manufacture,' " said not invention, tlio use of ii part only of the cunibinution is no iufriuKonipnt : JfcCui- viirk V. 'J'lilrott, 20 How. 403 ; J'il/n v. H'ciiip/i', id. Oo8 ; Lee v. JIhiidi/, 2 Finh. 89 ; Jfuwe v. Alilmtt, 2 Storj-, 190. It in no iufrinjfcinciit of ii patent for a combination to iiho either of the ma- chineH neparately (Hmntl v. Jfal/, 1 MasH. in ; Junim v. Juiloii, Tet. C. C. 313 ; ruts V. Jt'niip/,; McLean, 6oH) ; nor unless all the essential parts of it are Hubstautially imitated [Jtell v. J)u- ii'uls, 1 Fish. 372) ; but if there is a patent for a combination, part of which is old and part new, it is an iufringenieut to use the new part only: Lutta v. tihtiivk, 1 Fish. 405 ; J.ve v. JUmiibj, 2 Fish. H9. Where a claim for ' combination does not designate the jiarticular elements which compose it, but only declares, as it may, that the combiuatiim is made up of so much of the described machinciy us elfects a particular result, it is a ques- tion of fact for the jury, which of the described parts are essential to produce siich result: *'(/»«// v. I'oule, 14 How. 219. If a patentee is the oi-iginal inventor of a device to acconii)lish a particidar result, he may claim an exclusive right to the use of it ; otherwise, if he is not such original inventor, but only of a combination of unvh devices with others: t((/T V. Jiite, 1 Fi>li. 198. The patentee of a (H)mbinatlou cannot treat another as an infringer, who has also improved the original machine, by the use o* a substantially difl'ercnt com- bination, though it produce the same resuH : I'/iion tiiiyitr Jtrjiiuri/ v. Mal- tlticKsni, 2 Fish. 600 ; 6'. V. 2 Cliff. 304. (/) Parke, B., Morgan v. Se'itvard, 2 M. & W. 5.58. Invention is the finding out, contriving, discovering, or creating by an operation of the mind something new and useful which did not exist before : Magic Itiiffle Co. v. Doaglami, 2 Fisher, 330 ; Rait.som v. Xiuv York, 1 id. 252 . The principle or essential character of a patent involves two elements — Ist, the object attained ; and 2nd, the means by which it is attained : Wilxon v. It. It. Co., 2 Whart. Dig. 408. If no more ingenuity and skill is necessary to con- struct the new article than is possessed by an ordinary mechanic acquainted with the business, a patent therefor is in- Talid: Iloichkiss v. Greenwood, 11 How. (U. S.) 156 ; Teese v. Phelps, 1 McAU. (U. S. C. C.) 48 ; Treadwell v. Parrott, 5 Blatchf. (U. S. C. 0.) 369. A principle, unless applied to some useful purpose, is not patentable : Le Jtog V. Tatham, 14 How. (U. S.) 156; O'ltdl/ig V. Morsr, 15 id. 02; Jlitrr v. J)iin„r, 1 \Va)l. (U. S.) 531 ; Ha/lifuii V. ihd/lild, 1 Paine (U. S. C. C.) 442 ; huote v. Hihhg, 14 How. (U. S.) 218. But, if put into a definite and useful fonn, no one will bo permitted to steal its essence by changing its forn : l)et- mold V. Iteervn, 1 Fis-li 127; Uieh v. JJ/'pineutf, 2 id. 1. One who had discovered a new appli- cation of some property in nature, never before known or in use, by which he has produced a new and useful result, is ' entitled to a patent therefor, indepen- dently of any peculiar arrangement of nuichinery for the pur|X)se of applying it: Foole V. Hi/shi/, 20 How. (U. S.) 378 ; iVo/vr v. iriilme, 1 Fish. 44. The substantial means used and siKJci- fied to produce an end or residt is patent- able, but not the end or result itself : JIarr v. Coa-pcrthwaite, 4 Bl. (U.S.C.C.) 103; Sickles v. Falls Co., 2 Fish. 202; Case V. Jtroini, id. 268; Sangslerv. Miller, id. 503. But when a party lias discovered u result, as well as the machinery which produces it, he has a right to invoke the doctrine of ecjuivulents in reference to in- fringers : .Singer v. li'aliiislcil, 1 Fish. 5.)8; Gimlijcar v. Central It. It. Co., id. 626. But this is not so if he is only the in- ventor of a device ; in such case, he can only recover against one who has sub- stantially copied his invention. Where a result or etfect is produced by chemical action, by the operation or api)licatiou of some element or power of nature, or of one substance to another, the discovery of such mode, method, or operation, is patentable as a process : Corning v. Harden, 15 How. (U. 8.) 252. And ho who first practically applies such principle, by mechanical contrivances, to the purpose intended, is entitled to the pateat. A new adaptation and arrangement of applying and using old articles for a certain piirjiosc, may be the subject of a patent right : lilake v. Spern/, 2 N. Y. Leg. Obs. 251 : Park v. Little, 2 Wash. (U. S. C. C.) 196. But the mere appli- cation of an old organization to a new one is not patentable: I'liUipps v. Page, 24 How. 164 ; liean v. Smalluood, 2 Story (U. S.) 408 ; Jflnans v. Jioston and Pro- tidence It. Jt. Co., id. 412. An art is entitled to protection, aa well as the machinery or processes which it teaches, employs, and makes useful : French V. Mogers, 1 Fish. 133. But the word "art" means a useful art, or manufacture which ia beneficial, and which is described with exactness in its mode of operation ; such an art is pro- 590 INJURIES TO RIGHTS OF PROPERTY. [CIIAP. VIII. I 1 ' Vj 1'. ii i i.|^^^H i' i f ^' : i -fc^: < lf:j I ! „ I'll i ii'! 1 I Abbott, C. J. («), "has been generally understood to denote, either a thing made which is useful for its own sake, and vendible ns such, as a modicino, a stove, a telescope, and many others, or to mean an engine or instrument, or some part of an engine or instrument, to bo employed either iii the making of some pre- viously known article, or in some other useful purpose, as a stocking-frame, or a steam-engine for raising water from mines ; or it may, perhaps, extend also to a new process to be carried on by known implements or elements acting upon known substances, and ultimately producing some other known substance, but producing 563 it in a cheaper or more expeditious manner, or of a better or more useful kind. No merely philosophical or abstract principle can answer to the word * manufactures.' Something of a corporeal and substantial nature — something that can be made by man toctcd only in the mode and to tlio extent described : Smith v. Downing, 1 Fi-ih. 64. Thus copper-plttto printing on the back of bank notes is an urt for which a patent may issue: Kncass v. Schitylkill Bank, 4 "Wash. (U. S. C. C.) 9. The word " machine " includes every mechanical device, or combination of me- chanical powers and devices, to perform some function, and produce a certain effect or result: Corning v. Iturden, 15 How. (U. S.) 252. It is the machine itself, and not its product, that is protected by letters patent : Pitcher v. United States, 1 N. & H. 7 ; and a patent cannot bo had for the function or abstract efPect of a machine, but only for the machine which produces it : Corning v. Burden, 15 How. (U. S.) 252 ; Burr v. Burgee, 1 Wall. 631 ; Blanchardv. Spragiie, 3 Sum. 635; Stone y. Sprague, 1 Story, 270; Bain v. Morse, 6 West. L. J. 372 ; Siekels v. Falls Co., 2 Fish. 202 ; Morris v. Barrett, I Fish. 461. A mere change of form is not patent- able, but to change the form of an exist- ing machine, and thus introduce a new mode of operation, and thereby attain a new and useful result, is the subject of a patent : Winans v. Denmend, 1 5 How. 34 1 ; Turrillv. Michigan Southern and Northern Indiana Railroad Co., 1 Wall. 49 ; Gray V. James, Pet. (U. S. C. C.) 394 ; Gorham V. Mixter, 1 Am. L. J. 639. But although a mere change of form is not patentable, it is otherwise if form is a part of the thing invented, and es- sential to its value {Many v. Jagger, 1 Bl. (U. 8. C. C.) 372 ; Bain v. Morse, 6 West. L. J. 372) ; or if a change of form or proportion produces a new effect, it is patentable : Davis v. Palmer, 2 Brock. (U. S.) 299. The mere introduction of mechanical equivalents is not patentable: MeCor- mick v. Seymour, 16 How. (U. S.) 48U; Tracey v. Turrey, 2 Bl. (U. S. C. C.) 275 ; Smith v. Downing, 1 Fish. 04 ; Johnson v. Root, id. 351 ; f'ahoon v. Ring, id. 397 ; Pitts V. Edmonds, 2 Fish. 52 ; Burden v. Corning, id. 477. But the use of a mechanical equivalent may still bo an infringement, though, besides being an equivalent, it produces a further use- ful result: Fois v. Herbert, 2 Fish. 31. The doctrine of equivalents should bo critically scanned, where there may bo a difference in relation to two machines which, in some respects, operate by equi- valent devices, and in others do not, to ascertain whether one has become a practical machine, while the other is not: Sayles V. Chieago and Korth Western Railroad Co., 2 Fish. 523. The substitution of one mechanical power for another, in a machine, as a wheel and axle for a screw, is not patent- able: Blancherd^s Gun Stock Turning Fac- tory V. Warner, 1 Bl. (U. 8. C. C.) 258. But the duplication of parts, producing new and useful results, may be patent- able. Parker v. Hulme, 1 Fish. 44. Tlio propulsive effect of the vertical motion of water, in a reaction wheel, ojierating by its centrifugal force, and so directed by mechanism as to operate in the ap- propriate direction, is patentable : Win- termute v. Redingfon, 1 Fish. 239. There is no substantial difference be- tween a patent for an improved machine, and one for an improvement on a ma- chine. Evans v. Eaton, 3 Wheat. (U. S.) 454. Novelty and utility in an improve- ment are the only conditions requisite to the granting of a patent : MeCormick V. Seymour, 2 Bl. (IJ. S. C. C.) 240; Evans v. Eaton, Pet. (U. S. C. C.) 322 ; Stanley V. Whipple, 2 McLean (U. S.) 36. (m) R. v. Wheeler, 2 B. & Aid. 949. SECT. IV.3 PATENT nionT. 501 from tlio matters 6ul)jecte(l to his art and skill, or at the least some now mode of employing practically his art and skill, is required to satisfy this word" (j*). A patent cannot he taken out for a prin- ciple ; hut it can ho taken out for a principle coupled with the mode of carrying the principle into effect (//) ; and it is now perfectly well estahlished that a method or process in itself, and apart from its produce or results, or from the suhstances used in the process, may he the suhject of a patent privilege, provided some beneficial result, such as the cheaper or hotter production of the product, is attained from the use of such method or process (c). A patent may he granted, not only in respect of a whole and complete thing de- sorihed, hut in respect, also, of a suhordinato integer of that whole, provided the invention is so descrihed as to make it clear in respect of what the patent has heen granted (a). There may he a valid patent for a new comhination of materials previously in use for the same purpose, or for a new method of applying such mate- rials (b), or for the mere omission of one of several parts of the process, hy which the article is better or more cheaply manu- factured (c) ; for a new method of lessening the consumption of fuel in fire-engines {d) ; for a method of securing buildings from fire (e) ; for an improvement in the construction of chairs (/) ; for a method of giving fire to artillery and all kinds of fire-arms (g), and the like. So a patent may be sustained for a combination of processes, each of which was previously well known, provided the combination is new and produces a beneficial result (//), that is, a new article, or a better article, or a cheaper article, to the public than that produced before by the old method (?). But the use of (*) Ar.d see Jioulton v. Bull, 2 H. Bl. 481, 492, per Eyre, C. J., and Heath, J. Jluddart v. Grimshaw, Dav. V. C. 278. (y) Ju^ie V. rintt, 1 Webst. 11. 1 IG. Jiadiich Aiiilin Fabrik v. Levinstein, 24 Ch. D. 15 ; 52 L. J., Ch. 704 ; reversed on other grounds, 29 Ch. D. 366. {z) Crane v. FiUe, 4 M. & G. 580. (rt) Clark V. Adie, L. B., 2 App. Gas. 315 ; 46 J. J., Ch. 585. (A) Hul V. Thompson, 3 Mer. 629, per Lord Eldon, C. See Parkis v. Stevens, L. R., 9 Eq. 36. (c) Russell V. Cowley, 1 Webst. R. 464. {d) Homblower v. Boulton, 8 T. R. 95. (e) Boulton v. Bull, 2 H. BI. 493, per Eyre, C. J. (/) Minter v. Wells, 1 Cr. M. & R. 606. (g) Forsyth's ease, 1 Webst. R. 95. {h) Cornish v. Keene, 3 Eing. N. C. 670. Cannington v. A'uttall, L. R., 5 H. L. 205; 40 L. J., Oh. 739. (•) Murray v. Clayton, L. R., 7 Ch. 570. If a patent is taken out for the whole of the machine, when the patentee merely improved on an existing machine, it is not valid : Fvfins v. Futon, 7 Wheat. 356 ; Kvans v. Jletlick, 3 Wash. C. C. 409 ; Lowell \. Lewis, 1 Mass. 182 ; ILovey V. Stevens, 3 W. & M. 17 ; Stanley v. Whipple, 2 McLean, 35 ; Tyler v. Bevel, 1 Am. L. J. 248 ; eontra, Goodyear v. Mathews, 1 Paine, 300. The rule is, that if a patentee know- ingly claim more than his own invention, his patent is void : Singer v. Wahnsley, 1 Fish. 558. But the validity of a patent does not depend on the amount of inventive genius involved in its dis- covery ; if the device be new and useful, it is enough : Potter v. Holland, \ Fish. 382 ; Forbiuh v. Cook, 2 Fish. 668 ; Many V. Sizer, 1 Fish. 17 ; Carr v. liice, id. 198 ; Clark Patent Steam and Fire Regu- lator Co, V. Copeland, 2 Fish. 221 ; Magic Ruffle Co. V. Douglass, id. 330. Superior utility, resulting in changes in an existing machine, and not from mere superiority in its oonstr action, is !il ll INI :' p!f Pi wf § t I I i i.i i I;: 111! 602 INJURIliS TO IliailTH OF rHOl'KKTY. [cHAP. VIII. a new material to produce a known nrtiolo cannot bo the suLjoct of a patent, unless some invention and ingenuity aro dinplayed in the 664 adaptation (k) ; nor can a man claim the use of materials dis- covered subsequently to his patent (/). Letters patent may bo granted for an improvement on an existing patent (m) ; but the user of such, without a licence, or before the expiration of the term, will bo an infringement on the first patent (;/), provided that is useful. If the original patent is useless, and therefore not the subject of an infringement, it does not follow that the improvement upon it is useless (o). Patents — Nofi'/fi/. — Novelty is an essential condition of the grant ; for, if the invention were not now, one of the main considerations upon which the exclusive use of the invention is granted would evidence tlmt Home new principle, or meelianicul power, or new mode of ope- ration, pro(lueing ii new kind of result, has been introduced : Maiiij v. Sizcr, I Fish. 17. To sustain a patent, tlio invention must be HubHtantially different from any mRchino or thing in uho {Slnnlci/ v. V'hipplf, 2 McLean, 'i't; Jtobertuv. U'lird, 4 McLean, 5G6) ; and muHt effect the same object in a better, cheaper, more expcditiouH, or more beneficial maimer, than the instrument improved ; or it muHt effect Home further or other bene- ficial object in connection witli the former : Huggins v. Uubbg, 3 West. L. Mo. 317. The fact that old instruments, placed in a new and different organization, thereby produces different results, or the Bamo results by a new and different mode of operation, does not prevent a newly organized mechanism, producing tho same result, from being patentable : Clark Patent Strain and Fire Itegiilator Co. V. Copelaml, 2 Fish. 221. Ho who first invents is entitled to the prior right if he is using rensonablo diligence in adapting and jjcrfccting the same, though the second inventor has, in fact, first perfected the same, and first revn to the public, no Bubsequont patent can bo granted for it, althougli it cannot bo shown that it "wap over put in U8o(^). If the invention has already been mado public in England, by a 'ascription contained in a work, whothor written or ])rintod, which has been publicly circulated, tho inven- tion is not now (./'). The book must bo made public to such an extent os to be generally known among persons practising in such matters (7). Proof that tho book has been published and exposed for sale is prima facie proof that it has become generally known ; but, if all the copies can bo accounted for, and it can be shown that in point of fact the book never got into tho hands of the public, although it may have been in a public library, tho pre- sumption is rebutted (//). It is further necessary, to avoid tho irvention on tho ground of want of novelty, that the book should contain such a descrii»tion as would enable a person of ordinary skill in the trade to make tho article described (/). A provisional specification is not, in general, intended to give a complete descrip- tion of an invention to tho public, but only to prot 3ct the inventor xmtil the description is perfected in tho final specification ; and, therefore, where a provisional specification contained an incomplete description, part of which was omitted in tho final specification, it •was hold that the statement in the provisional specification of tho 566 part omitted in tho final specification was not such a prior publication as to vitiate a subsequent patent of a similar invention on the ground of want of novelty {k). Patents — Utiliiij. — Utility is an essential condition of tho validity of letters patent ; for a monopoly in an invention altogether useless would be mischievous to tho State, and to the hurt of trade, and generally inconvenient, by precluding all improvements thereon mi^il the expiration of the patent (/) ; and, if the utility of the invention is denied, afiirmative evidence of utility (e) Ld. Abingcr, C. B., Carpenter v. Smith, 1 Webst. R. 534. (rf) 21 Jac. 1, c. 3, 8. C. This is otherwise in the United States, where the question is whether it was new at the time of the discovery. Phillips on Patents, pp. 162 etseq., 188 et seq. («) Patterson v. Gas Light and Coke Co., L. R., 3 App. Cas. 239; 47 L. J., Ch. 402. (/) Stead V. Williams, 2 Webst. P. R. 126, 142 ; 7 M. & G. 818. (g) Stead v. Anderaoti, 2 Webst. P. R. 147, 149. United Telephone Co. v. Ha) - riton ^ Co., 21 Ch. D. 720; 51 L. J., Ch. 705. (A) Plimpton v. Maleohmon, 3 Cli. D. 531 ; 45 L. J., Ch. 505. Plimpton v. Spiller, 6 Ch. D. 412; 47 L. J., Ch. 211. Otto V. Steel, 31 Ch. D. 241; 63 L. J., Ch. 196. (i) Plimpton V. Malcolmion, 3 Ch. D. 531, 607; 45 L. J., Ch. 605. (k) Stoner v. Todd, 4 Ch. D. 58 ; 40 L. J., Ch. 32. (/) Morgan v. Seaward, 2 M. & W. 662, per Parke, B. SECT. IV.] PATKNT KIOHT. -^^^(ifiwfpmiiipiiiiHPiRUinijiii.i 696 must bo given («<). But a small amount of titilify is sufTloiont («) ; and tlio inutility of part, it on tho whole a l»«n('ficial effort w pro- duced, will not vitiate tlm patent. If a machine in useful n' il o majority of cases, its inutility in some instances will not vitiate I'.o patent («). If, however, several distinct inventions are comprised in a patent, and one of them is useless, the whole patent is void, for reasons that have been previously given {/>). If tho orticlo pro- duced by tho niachino is old, it must bo furnished to tho public at a cheaper rate, or in some way rendered a hotter commodity for trade. Tho community must receive some benefit from the invention (7). Patents — The Hpccification. — As the title and terms of tho letters patent in most cases convey but very imperfect information as to tho real subject-matter of the patent, and as one of tho fundamental principles upon which a patent rests is (as has been mentioned before) that tho public shall have tho benefit of tho in- vention after tho prescribed period has elapsed, a sufRcient descrip- tion of tho nature of the invention, and in what manner tho same is to be performed (called the specification (r)), has to be given within a given time, co as to enable any person of moderate skill and knowledge in that department of manufacture to which it relates, to practise and enjoy tho invention at tho expiration of the term in as ample and beneficial a manner as tho patentee him- self (.s). It follows from this, that tho specification forms an essential part of tho patent contract, if such a term is allowable, and that an incorrect or imperfect or ambiguous specification (/), (w) Maniun v. rurker, Diiv. P. C. 327. In the United Staten it m sufl'cient, it HCcniH, if tlio invention is not injurious, nnd may bo a uneful. Bedford v. ][iint, 1 Mason, 302. To sustain a patent, tho invention must be a " u.'eful,'' in contra- diHtiiictiou to a frivolous or mischievous, one: Lowell v. Leuiii, 1 Mas. (IT. S.) 182 ; Jtedfordv. Jlimf, id. 302; Lamlon V. De Oiuot, 1 Paino (U. S. C. C.) 203 ; Nlaiilei/ v. Whipple, 2 McLean (U. S.) 3*) ; Roberta v. Wmd, 4 id. o(;5 ; I'arlur v. StilfB, L id. 44 ; Jnr.termiiley. liedingUm, 1 Fish. 239 ; Pr.ge v. Ferry, id. 298 ; Whitney v. Emtnett, L-ild. (U. S. C. C.) 303 ; Parker v. StileH, 5 McLean (U. S. C.C.) 44 ; Hell v. Daniels, 1 Fish. 372 ; luiiiies V. Cook, 2 id. 146 ; Cox v. Griggs, id. 174. If tho invention is a useful one, it is of no coDBcqiience whetLer its utility is general or limited to a few cases : Jietlford v. Hunt, 1 Mas. {V. S.) 302 ; Manyv. Jagger, 1 Bl. (U. S. C. C.) 373 ; Wiiitennute v. Jiediiigtoii, 1 Fish. 239 ; Johnson v. Hoot, id. 351. (n) Keilion V. Uarford, 1 Wobst. P. R. 295. The IlonsehiU Coal and Iron Co. v. Neilson, 1 Webst. P. R. 07.5. (o) JIaworth v. Hardcastle, 1 Bing. N. C. 189. Q Q (p) And see Ilill v. Thompson, 8 Taunt. 401, Dallas, J. (y) Murray v. Clayton, L. R., 7 Ch. 570. (»•) See, as to tho provisional and com- plete specification, 40 & 47 Vict. c. 57, KS. 5— 11 ; and 48 & 49 Vict. c. 03, s. 3; 49 & 50 Vict. c. 37, h. 2. Ex parte Manceaux, L. R., 5 Ch. 518; G ib. iTl. Ex parte iScutt and Young, ib. 274. (.») Campion v. llcnyon, 3 B. & B. 12, per Parke, J. BuUcr, J., It. v. Ark- H-right, Dav. P. C. 106. Crosaley v. lievcrleii, 9 B. & C. 63. Morgan v. Sea- ud'-d, i Webst. P. R. 174. (t) Campion v. Benyon, 3 B. & B. 5. Turner v. Winter, 1 T. R. 602. Simpson V. Ifolliday, L. R., 1 H. L. 315. The patent docs not cover a claim not embraced in the specification : Booth v. (larvlley, 1 Blatchf. (U. S. C. C.) 247 ; Ilich v. JAppincott, 2 Fish. 1. It must di.^eloso tho secret ; give tho best mode known to the inventor ; and contain nothing defective or that would mislead artists of competent skill in the particu- lar manufacture : Page v. Ferry, X Fish. 298 ; Judson v. Moore, id. 644 ; Wayne V. Holmes, 2 id. 20. Tho patentee is required to tet forth the most beneficial f ^ |! 59G INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. 667 or one calculated to mislead (?«), or materially differing from the letters patent, will, if such ambiguity, incorrectness, &c., has not been removed by disclaimer or alteration (.r), be sufficient to defeat the plaintiff's claim or avoid the patent (y). Mere generality of the title, however, if not inconsistent with the specification, will not do so; and, indeed, the specification generally limits the description of the patent (s). Nor, on the other hand, will a small and im- material variation entitle a peison to infringe a patent {a). Any part of the provisional specification of a patent may be ■i; i Ii i I I f ! i: mode of applying his principle that in known to him ; but he is not required to set out all contrivances which may illus- trate it less beneficially : Blanchard v. EldrUije, 2 Whart. Dig. 409. It is not necessary that he should describe all possible modes by which the thing patented might be varied, but only the most important, and a mere formal variation therefrom would be an in- fringement: Carver v. liniintree Manu- facturing Co., 2 Story, 432. If hf has so described his new article that it can be made without invention, and has then, bona fide, attempted to describe the best machine for making it, but has failed to describe a practical device, this does not avoid the patent, unless thero was a fraudulent intent : Magic Ruffle Co. v. Douglas, 2 Fish. 330. He must describe in his specification each substantially different modification of his invention : Sargent v. Carter, 1 Fish. 277. Where he claims a machine, he must explain the principles and contemplated modes of operation which distinguish it from other inventions, but he need not specify such well-known substitute;! as any expert fully imderstands will ac- complish the same function : Union Sugar Refinery v. Matlhieascn, 2 rish. 600. If he does not disclose his entire iii- vention he will not be allowed subse- quently to expand into a general expres- sion what was before lunitod in a par- ticular form : Detmold v. Rrevcs, 1 Fish. 127. If the patentee iails to mention in his specification an addition whi^-h is in- dispensable to the use of his machine, it IS fatal to his title ; but it is other- wise if it is not an indispensable part of it : Carr v. Rice, 1 Fish. 198. The specification constitutes a part of the patent, and they must be conLtrued together : Hogg v. Emerson, 6 How. (U. S.) 437 ; Ttrrill v. Michigan Southern and Northern Indiana Railroad Co., 1 Wall. (U. 8.) 491. It is immaterial what is the claim of an inventor in his summary, if the foundation tor such claim is not made in the descriptive part of the speci- fication : lluggins v. Hubby, 3 West. L. Mo. 317. The drawings, as well as the entire specification, may be refori'ed to in ex- planation {Hogg V. Hiiiersvii, 11 How. (U. S.) 687 ; Jlrooks v. Finkr, lo How. (U. S.) 215 ; Jiarle v. Sawyer, 4 Mas. 1 ; Killle V. Mrrriain, 2 Ourt. 476 ; Foas v. Herbert, 2 Fish. 31), even though not rcfciTed to in the spccificaticm : ll'a.\h- liurn v. Uouhl, 3 Story, 122; Brooks v. liicknell, 3 McLean, 250. The patentee must descrioe in his pateot in what his invention consist with reasonable certainty, or it is void for ambiguity : Lowell v. Lewis, 1 Mas. 182 ; Barrett v. Hall, id. 447 ; Hovei' v. Stevens, 1 W. & M. 291 ; Sullivan v. Re,f- ficld, 1 Paine, 441 ; Jl'hitnei/ v. Kmmett, "Bald. 303 ; Carr v. Riee, 1 Fish. 325 ; Jl'intermute v. Redington, id. 239. But no defect jr concealment in the specification is sufticient to avoid a patent, unless it is with intent to de- ceive the public: WhiUemore v. Cutter, 1 Gall. 429 ; Lowell v. Lewis, 1 Mas. 182 ; Gray v. James, Pet. C. C. 394 ; Whitney V. Carter, Fess. Pat. 139. But an omission to state that a certain function of one of the parts was a lead- ing feature of the invention, is material, in considering whether the patentee has suflBciently claimed anything more than a described mode of operation : Burden V. Corning, 2 Fish. 477. (tt) Savory v. Price, Ry. & Moo. 1. [x) 46 & 47 Vict. 0. 67, ss. 18—21. See Cropper v. Smith, 28 Ch. D. 148; 64 L. J., Ch. 287. Ralston v. Smith, 11 H. L. C. 223 ; 36 L. J., C. P. 49. The patent must not by the operation of the disclaimer be made to include or com- prehend something which was not ori- ginally contained in the patent. Whe- ther, if this rule is violated, the dis- claimer is void or the patent is void, appears uncertain. Foxwell v. Bostock, 4 De a., J. & S. 298. (y) R. V. JFheeler, 9, B. & Aid. 345. Jessop's case, cited 2 H. Bl. 489. See Wegmann v. Corcoran, 13 Ch. D. 66. {z) Forsyth's case, 1 Webst. R. 95. (rt) Gibbs V. Cole, 3 P. Wms. 265. SECT. IV.] rATENT lUGHT. 597 im- he omitted in the complete specification, if there is no fraud, and if the effect of the remainder is not alte.ad by the omission (i). All the claiming clauses may be struck out of the specification by a disclaimer, if there remain in the body of the specification words sufficiently distinguishing what the invention is which is claimed (i). Where the patent is for a combination, the combination itself is ex necessitate the novelty and the mei-it; and a claim of the combination is in itself a sufficient description of the novelty (c). Where the claim is for a combination, the patentee may claim, not merely the combination of the parts as a whole, but also certain subordinate and subsidiary paHs of the ombination, on the ground that those parts are new and useful {(/) ; and in that case the specification must carefully distinguish those parts, so as not to leave it doubtful what claim to parts, in addition to the claim for the combination, ho means to assert (e). The words used in a patent must be construed, like the words of any other instrument, in their natural sense, according to the general purpose of the instrument in which they are found ; and, consequently, words will be construed in their popular, and not in their scientific, sense, if from the context it is clear that the former meaning, and not the latter, was intended to be conveyed (/). The provisional specification need not describe the mode in which the invention is to be worked or carried out ; ard its gene- rality affords no grounds for avoiding the patent after it is 568 granted ; nor is it necessary iliat the complete specification should extend to everything comprehended within the provisional specification. There must, however, be nothing in the complete specification which is at variance with the provisional (g). By the 40 & 47 Vict. c. 57, s. 13, " every patent shall be dated p id sealed as of the day of the application ; provided that no pro- ceedings shall be taken in respect of an infringement committed before the publication of the complete specification : provided, also, that in case of more than one application for a patent for the same invention the sealing of a patent on one of these applications shall not prevent the sealing of a patent on an earlier application" {h). A person must not make a provisional specification, and then, (b) Thomas v. Jrelcfi, L. R., 1 C P. 192; 35 L. J., C. P. 200. M Ilarriso t v. Andcrston Foundry Co., 1 Apn. Gas. 574. (rf) Lister V. Leather, 8 El. & Bl. 1004 ; 27 L. J., Q. B. 290. (e) Harrison v. Anderston Foundry Co., 1 App. Gas. 574. (/) Clark V. Adie, 2 App. Gas. 423 ; 46 L. J., Gh. 598. {/7) J'enn v. Bibby, L. R., 2 Gh. 127; 36 L. J., Gh. 455. (/() The old practice is referred to in the following oases: Sajiby v. Hennett, L. R., 8 Ex. 210; 42 L. J., Ex. 137. E.t parte Hates, L. R., 4 Gh. 577 ; 38 L. J., Ch. 501. L'jc parte Bailey, L. R., 8 Ch. 60; 42 L. J., Ch. 264. In re Bering's Patent, 13 Gh. D. 393. Ex parte Scott, L. R., 6 Ch. 274. f.rs b. .r ill 'i^ 'I ,: ijii: I r< 1| r l»l ;nii IlijSI ! ■jl!' 1 i ill 698 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. after making o, new discovery forming an integral part of his patent, make a final epecification without disclosing his new disco- very, and then take out another patent aftorwnxds ; nor can he put his new discovery into his final specification, for that would render his patent void (/). By the 48 & 49 Vict. c. 63, s. 4, specifications and drawings are not to be made public when the application for the patent has been withdrawn. Patents — Tramfer of leti 's p -cnt. — The letters patent are granted to the patentee and 1: ls ^ lounal representatives or as- signs {k). The assignments which may be made are of two kinds, either by the act of the party (/), or by act and operation of law, as in the case of death or bankruptcy (in). As patent right is an incorporeal right, it can only be assigned by deed, in accordance with the ancient rule of law that " a thing which of its own nature cannot be created without deed cannot be assigned without deed " (h) . Such assignment confers as absolute a title as the patentee himself pos- sessed ; and the assignee may sue for any infringement, either in his own name only (o), or together with the patentee (if the patentee retains any interest in the patent) ; for, though the in- terest is several, the damage by infringement is joint {p). Each co-owner of a patent, however, may sue fr an infringement {q) ; for he may use the invention without tl ^ • rvnRsnt of the other owners, and is entitled to ail the profit lie i t: ii ake by working 569 it (r). The assignment may be absolut* , -ouditional, or de- feasible on the happening of a given event (s) ; but, if the patent right is dealt with contrary to a condition upon which it may happen to have been granted, the right is extinguished and gone for ever. A patentee may assign his patent for any particular place as effec- tually as if the patent were originally granted for that place (t). It is no ground of objection to the title of an assignee of a patent, that the assignors, the executors of the grancte, had omitted to register the probate until after the date of a8sig£>ment, though possibly it might be an obstacle to the maintenance of an action by the assignee for an infringement, if commenced before the registration of the probate {u) , Patents — Licemees, — The patentee may also license others to (i) Edison Light Co. v. Woodhousc, 32 Ch. D. 520. (k) See Duvergier v. Fellows, 10 B. & G. 829, and the form given in the sche- dule to the 46 & 47 Vict. c. 57. (/) Cartwright v. Amatt, 2 B. & P. 43. (m) Hesse v. Stevenson, 3 B. & P. 565. (n) Lincoln Collegers case, 3 Coke, 63 a (o) Bloxam v. Ekee, 6 B. & 0. 169. (/>) 2Wm. Saund. 116, 116*. (y) Litnnicliffy. Mallet, 7 C. B., N. S. 209; 29 L. J., 0. P. 70. Walton v. Lavater, 8 0. B., N. S. 162; 29 L. J., C. P. 275. (r) Mathers v. Green, L. R., 1 Ch. 29; 35 L. J., Ch. I. (j) Cartwright v. Amatt, 2 B. & P. 43. (f) 46 & 47 Vict. 0. 67, 8. 36. {u) Elwoodv. Christy, 17 C. B,, N. S. 764 ; 34 L. J., C, P, 130. SECT. IV.] PATENT RIGHT. 599 aro exercise the invention, provided the terms of the grant authorize such licence ; and such licences may be either common or exclusive (x). The only right, however, which such licensee (whether a common or exclusive one) obtains being one of user, ho cannot sue for any infringement. He may, however, recover for any special damage which he may have sustained from those exercising the invention without licence, if the letters patent are valid (y). The patentee is estopped from denying the validity of the patent as between himself and his assignee or licensee (s) ; and so may the assignee or licensee be estopped as between himself and the patentee (a). If the owner of a patent manufactures and sells the patent article both ±a this country and abroad, the sale of the article in one country implies a licence to use it in the other. But, if he has assigned it in either country, the article cannot be sold in that country so as to defeat the rights of the assignee (b). A licence to use a patent process in another country will not give a right to sell the manufactured article in this country (c). Patents — Compulsory licences. — Where a patentee unreasonably refuses to grant licences the Board of Trade may grant them (d). Patents — Prolongation. — The term of leiters patent may be fur- ther extended {c). In determining whether to recommend the prolongation of a patent or not, even where the claim to a first discovery and the beneficial nature of that discovery are both conceded, it will still be proper to consider, both the degree of 670 merit as inventor, and^the amount of benefit to the public flow- ing directly from the invention (/) . A monopoly limited to a certain term is properly the reward which the law assigns to the patentee for the invention and disclosure to the public of his mode of pro- ceeding. Whether that term shall be extended, in effect whether a second patent shall be granted for the same consideration, and the enjoyment by the public of its vested right bo postponed, is to depend on the exercise of a discretion, judicial indeed, yet to be influenced by every such circumstance as would properly weigh on a sensible and considerate person in determining whether on extraordinary privilege, not of strict right, but rather of equitable reward, should be conferred. A person may be an inventor within {x) Piotheroe v. May, 5 M. & "W. 675. (y) George v. Beaumont, cited in Web- ster on Patents, pp. 24, 128. (z) Oldham v. Langmead, 3 T. R. 439. («) Baird v. Neihon, 8 CI. & F. 726. Bowman v. Tayloi; 2 Ad. & E. 278. (A) BetU V. Wilmott, L. R., 6 Ch. 239. (c) Societi de» Manttf, de Glaces v. Tilgh- man't Patent Blast Co., 25 Cb, D. 1 ; 53 L. J., Ch, 1, (d) 48 & 49 Vict. c. 63, s. 22. U) 46 & 47 Vict. 0. 57, B. 25 (1). (/) See sect. 25 (4). A patent can only be extended in this country for seven years, and, even for that time, only upon a showings which satisfies the CommissionerofPatentsthatthe patentee has not realized from his invention as much as he ought to have done under the first issue, -?» II M! !'i 11 f • '" I i: ■■ 1 I! I .. ii liiii I I pi! iji 600 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. the legal meaning of that term — no one before him may have made or disclosed the discovery in all its terms as described in his specification — but this may have been the successful result of long and patient labour, and of great and unaided ingenuity, without which, for all that appears, the public would never have had the benefit of the discovery ; or it may have been but a happy accident, or a fortunate guess ; or it may have been very closely led up to by earlier, and in a true sense more meritorious, but still incom- plete, experiments. DifFerent degrees of merit must be attributed to an inventor under these different circumstances. The moral claim to an extension of the term may in this way be indefinitely varied, according as the circumstances approach nearer to one or the other of the above suppositions. The same principle will apply to the consideration of the benefit conferred on the public. Thr. extent of the benefit conferred must vary in each case with the circumstances. The principal question .Ivvays is, has the indi- vidual patentee, under all the circumstances, received what in equity and good conscience may be considered a sufficient remu- neration? {(/). Patents — Infringement. — A person is guilty of a breach of patent privilege who, directly or indirectly, by himself or his servants, has used the art or invention which has been made the subject of the privilege, or applied it in any way for his own profit or benefit (h) ; and, if the defendant has employed means colourably different to produce the same or a similar rw3ult, yet he is guilty of an infringement, if he has in fact used the art which is the subject of the privilege (/). 671 Where a man has obtained a patent for a new invention or a discovery which he has made by his own ingenuity, it is not in the power of any other person, simply by varying in form or in immaterial circumstances the nature or subject-matter of that discovery, to use it without the leave of the patentee (A-). Although machinery is employed, the machinery may not be of the essence of the invention, but only incidental to it (/) ; and it therefore follows, that an invention may be infringed by adopting the same general idea, although it may be carried out by different means (m). A patent for a new combination or arrangement is (y) In re mil's Patent, 1 Moo. T. C, N. S. 268 ; M'D^iigara Talent, L. R., 2 P. C. 1. (A) Milson V. Betta, L. R., 5 H. L. 1 ; 40 L. J., Ch. 317, in which case the user was simply by transmission through this country. Upmann v. Elkan, L. R., 12 Eq. 140; 7 Ch. 130; 40 L. J., Ch. 475; 41 L. J., Ch. 216. (i) Hindmarch on Patents, 257. See Gillett V. Wilby, 9 C. & P. 334. Jupe\. Pratt, 1 Webst. R. 146; Thorn v. Worth- ing Rink Co., 6 Ch. D. 416, n. (A) IFalton v. Potter, 1 Webst. P. R. 686, 687. JJudgeon v. Thompson, L. R., 3 App. Cas. 34. (/) Boulton V. Watt, 2 H. Bl. 496, per Eyre, C. J. (m) Jupe V. Pratt, 1 Webst. R. 146. . VIII. SECT. IV.] I'ATKNT UIGHT. 601 have in his f long ithout ad the cident, up to incora- ributed moral initely one or apply Thr. ith the B indi- hat in remu- entitled to the same protection, and on the same principles, as every other patent. Where the patent is for the entire combina- tion only, and not for its parts, there is, or may he, an essence or suhstance of the invention underlying the mere accident of form ; and that invention may be infringed by a theft in a dis- guised or mutilated form. In every such case it will be a question of fact whether the alleged infringement is the same in substance and effect, or is a substantially new or different combination («). Where the claim is for a combination and nothing but a combina- tion, there is no infringement, unless substantially the whole combination is used ; and it is immaterial whether any and which of the parts are new (o). The vending of the patented article is prohibited by the terms of the grant, and is an infringement, though done in ignorance (p) ; and so is the importation and sale in England of articles manu- factured abroad according to the specification of an English patent (q). But this does not extend to an exposure for salo only (r) ; nor is the sale of a patented article, as part of the effects of a bankrupt or deceased person, it would seem, within the objects intended to he prohibited by the grant (s). The making of a patented article simply for the purpose of bond fide experiment is not necessarily actionable if) ; but any user for advantage is an infringement (h). The possession of machines protected by patent, although dismantled and not in a state fit for immediate use, is 672 an infringement for which an injunction can be obtained {x). Where a patent is for a process producing a known result, any person may use another process arriving at the same result without an infringement ; but where the patent is for a new result it is otherwise (y). Patents — Remedies for infnngement — Action. — It was held that letters patent, so long as they exist, that is, until cancelled by the judgment on a scire facias, entitled the patentee to assert his right, although he might have heen defeated in other actions (s). The proceeding by scire facias to repeal a patent is abolished, and the revocation of a patent may be obtained on petition to the («) Clark V. Adie, L. E., 10 Ch. 667 ; Dudgeon v. Thompson, 3 Ap. Cas. 34. (o) Listet- V. Leather, 8 El. & Bl. 1004; 27 L. J., Q. B. 295. {p) Wright v. Hitchcock, L. R., 5 Ex. 37 ; 39 L. J., Ex. 97. {q) Elmslie v. Boursier, L. R., 9 Eq. 217 ; 39 L. J., Ch. 328 ; Von Ueyden v. Neustadt, 14 Ch. D. 230. (»•) Minter v. Williams, 4 Ad. & E. 261. (») Satvin v. Guild, 1 Gallison, U. S. R. 486. And see Holmes v. London % North- Western Rail. Co., Macr. P. C. 12, 21 et seq. {t) Frearson v. Loe, 9 Ch. D. 48. (/<) NobeVs Explosives Co. v. Jones, 8 Ap. Cas. 5 ; 52 L. J., Ch. 339 ; United TeUpkone Co. v. Sharpies, 29 Ch. D. 164. (x) United Telephone Co. v. London Telephone Co., 26 Ch. D. 766. {y) Badisch Anilin Fabrik Co. v. Levin- stein, 24 Ch. D. 156; reversed on other grounds, 29 Ch. D. 366. (z) li. V. Arkwright, Day. P. C. 61. 602 INJURIES TO KIGirrS OF PKOPERTY. [ciIAl'. VIII. :iii! nurt ; and every ground available for petition or defence under the old practice is reserved, and certain rules of procedure are pro- vided (n). Where a disclaimer had been filed, unless the law officer had specially granted permission, no action could bo brought for an infringement committed before the disclaimer (b). Nor can an injunction granted before the disclaimer be enforced (c). The patentee, upon proof of an infringement, is not entitled to have both an account of profits and an inquiry into damages, but must elect which of the two forms of relief he will adopt {d). If the plaintiff, a patentee, and also a manufacturer, has been in the habit of licensing others to use his patent, at a fixed royalty, the loss of that royalty is the measure of damages against a person who has infringed the patent ; and the plaintiff cannot claim, in addition, manufacturer's profit, on the supposition that the articles made by the defendant, and in which the infringement took place, might have been sent to him to be fitted with the patent (c). The money recoverable by a patentee, in respect of profits made by infringing his patent, is recoverable as money had and received to his use and not as damages, and can therefore be proved for at the bankruptcy of the infringer (/). Patents — Remedies — Injunction. — If a plaintiff is in a position to support by proper evidence his title to a patent, and to prove 673 the fact of its having been infringed, he is entitled to an injunc- tion to stop the mischief (o purchased the interest of this person. It was held viir. SECT. IV.] TRADE MARKS. 605 starting opposition omnibuses having tho same words and devices marked upon them, so as to make it appear that tho defendant's thai he wuh entitled to protection in tliu u.so of tlio name. In Am. drum- iVr. Co. v. O'roirr Pub. Co. (.>.) Ilun. (N. Y.) 3!)S), tho phiintiff Imd for iniiny yi'iirH piiblixhcHl ii pitj)()r called tho " Anioriuan Uro<;or." llin editor left him and started for defendant a new paper (uilled the " Gro(!or," Minii- lar in gcnoral apjiearanco, and dcvotcP, as being calculated and dcMigned to induce the siip[)i)sition, by users and dealers, that the waters of tho defendant so marked weio the waters of the plaintiff ; but tho plaintiff was ordered to give a lK>ud to pay all da- mages to the di'fendant, if it should bo finally determined that tho plaintiff was not entitled to tho injunction : Apolli- tmns liniiinen v. Smiiboni, 14 Blatchf. SSO. If tho alleged imitation of tho I>laintif{'8 trade mark has not deceived, and is not likely to deceive, ordinary purchasers, an injunction will not be granted : JfiirrictiHr Ltnttrn Co. v. J/i/- /(•/•, 56 How. (N. Y.) Pr. 234. But if it is sucli a simulation as is likely to mislead purchasers its uso will be restrained. Thus, tho plaintiffs manufactured an article called " Sa- polio," which had acquired a high re- putation. Tho defendant, having ascer- tained by analysis the composition of tho artiile, set about making one as nearly as possible like it, which he called " Saphia," and put up in wrap- pers closely resembling plaintiffs' (ex- ternally and internally) in colour and size, and pHrtially in the inscription and directions for uso. It was held, that aa it appeared that the imitation waa in- tended to deceive purchasera, the defen- dant ahould be restrained from using auch wrappers : Enoch Morffju's Sons' Co. V. Schwachofir, 5 Abb. (N. Y.) N. Cas. 265. If a trade mark is fraudulent, or cal- culated to deceive purchasers, it will not be upheld. Thus a court of equity will not enjoin tho infringement of the plain- tiffs' firm name as a trade mark, if it falsely implies that they are a corpora- tion, as in tho case below : " Galaxy rublMing Compaiii/." Jleyair v. Cleave, 10 Phihi. (Pa.) 155. A trade mark for a stove polish, " Tho Rising Smi," with vignette of the aun, was held not to be infringed by the words "Rising Moon," with vigiietto of the moon : Mone v. Jf'orrell, lOPhila. (Pa.) 168. The exclusive uso of a tin pail with a bail or handle to it, the tin ornamented with a geometrical pattern, and used to cojitain impcr collars for sale, and sold with the coUara, cannot be claimed as a trade mark, either under the statute or by virtue of the general law of trade marks: Havrington v. Libby, 14 Blatchf. (U. S. C. 0.) 128. In Fairbanks v. Jacobus (14 Blatchf. (U. S. C. C.) 128), it appeared that E. & T. Fairbanks & Co., manufacturers of scales, alleged that A. made scales, by n ! M- ■1 'Mi H 1 1 : in. i, . i'tli ?,' '.m mi iiiiJ It:] I 1 I., Hi i 60G INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. umn^, to niakn tlin iron rfistings tlioroof, tho (!orr('Mpoii- fondantH woro Nollinfr to tliii'd perKntiH iin extract out of wliii;li it wii« oliiiiiii'd Hostcttcr'H Stomach BitterH could 1)0 made, and that these third perHonn put up tho compound mado by tliom in tho bottloH which had boon um-d for iihiiu- tiffs' bitters, which bottles had on them tho name and label, which, with tho bottles, constitute*! i)laintiffH' tniuo mark. It was held that whatever remedy plaintitfs might havo against such third parties, they had none against defendants. If 1). puts up, ia packages shaped, labelled and designed in a peculiar nwin- ner, an article manufacitiircd by himself, A. is liable for damages, and will bo enjoined if ho puts up similar goods in similar packages, so as to deceive the i)uli- lic into believing that they aro buying goods of B.'s manufacture, and this whe- ther B. has a trado mark or not : Sawijrr V. Horn, 4 Hughes (U. S. C. C), 23!)". One cannot appropriate as a trade mark an ordinary and usual form of package and faiihion of label, so as to exclude others from tho use of a similar article ; nor can tho more idea, repre- sented by a figure on an article sold for polishing purposes, that it wiR make things bright enough to bo t sed as mirrors, be the subject of a trade mark. Enoch Morgait's Sons' Co. v. Troxell, 89 N. Y. 292. The words "silicon" and " electro - silicon" aro properly tho subject of a trado mark, those words not being, in a scientific sense, descriptive of tho article thus designated, although silicon is one of its component parts ; tho article being a white powder sold and used for polish- ing metals: Electro-silicon Co. y.llazarri, 29 Hun. (N Y.) 369. "Sliced animals," "sliced objects," and "sliced birds," as applied to puzzles or games, are properly the subject of a trade mark : Sclchow v. Baker, O'l How. (N. Y.) Pr. 212. Tho word "excelsior" may be tho subject of a trade mark : Sheppard y. Stuart, 13Phila. (Pa.) 117. The word " snowtfake," as applied to bread or crackers, is a mere descriptive phrase of appearance or quality, ancf will not answer for a trade mark : Larrabee V. Lewis, 67 Ga. 561. In Lorillard v. Wight (15 Fed. Rep. 383), tho plaintiffs first adopted, and used as a mark for their tobacco, tin tags variously coloured, with tho name of the brand and their own name stamped on the tags and fastened to tho plugs of tobacco. The public had come to know plaintiffs' tobacco by tho tags. It was held that they had a right to the device as » trado mark, although their patent therefor had boon dcclari-*! void after surrender and ro-iMHue, nnd tlmt the uso of tags cldMi'Iy imitating ])laintiirH', und liki'iy to miNlcii'l a pureliaser, whether HO intcndcil or not, was an infriiigemeut, and hIiduIiI be enjoincil. In (Iniii V. Taper NIrere I'li/lri/ Il'itrk-H (16 Fed. llej). 430), tho i.laintiff pur- chased of \V. the ex(!lusive right to manufacture, within a spo(;ified terri- tory, a patented devi<;oealli'il tho "Taper sleeve jnilley." I'liiintiff adopted as a trade mark tho tonn "Taper Slcovo Pulley Works." It was held that this designation was properly selected as a trade name, and that defendant, who purchased the right to manufacture tho Humo within certain other territory, had the right to assume and appropriate sucih trade name ; that plaintiff was dn- tithnl to the exclusive use thereof. Where frames for sewing maohines, in tho form of tho letter G, have been so extensively manufactured and sold by the inventor, during the time they were protected by patents, that the ma- chines containing this feature come to be known in tho trado thereby, after tho expiration of the patents tho patentee cannot, by claiming such form or shape of frame as a trade mtirk, prevent others from using such frames in sowing ma- chines manufactured and sold liy them : H'ileo.f S; Gibbs' Sewing Machine Co. v. Gibben's Frame, 17 Fed. Rep. 623. A trado mark composed of such devices as denote simply tho quality of an article will bo protected, especially if is once established : Sohl v. Geisendorf, 1 Wilson (Ind.) 00. Words or phrases in common use, and which indicate the character, kind, quality, and composition of an article of manufacture, cannot be appropriated by the manufacturer, exclusively to his own use, as a trado mark ; and this is so, olthough thv, form of the words or phrases adopted also indicate the origin and maker of tho article, and were adopted by the manufacturer simply for that purpose. The combination of words must express only the latter, to authorize its protection as a trade mark. Thus, the plaintiffs prepared a medicine, the principal ingredients of which were iron, phosphorous and olixir of calisaya bark, to which they gave the name of "Ferro- Phosphorated Elixir of Calisaya Bark," and so labelled the bottles containing it. It was held that this phrase could not be protected as a trade mark: Caswell V. navies, 58 N. Y. 223. An exclusive right cannot be acquired to the use of the words " gold medal" as a trade mark upon the wrappers of a manufactured article. Tho words so used do not indicate ownership or origin, but quality, and that, in some competi- tive exhibition, a gold medal had been M OOH INJlJKItX TO RIGHTS OF I'UOPKUTV. [ciIAP. VIH. I' : If :',t' ■ 'I !:i^ hi ■y3 ! i'if ''■ill -, iiilll i'i iliil nwanltxl to t\w iirtUil" f u|))iri)priiiti'il iim n tnido iiiiiric : Tinjlui- v. (ii/hfn, M N. Y. ;i;)I. Tlio rule Ih, tliiitiitritiUiiniirkinity coiiniNt (if liiiytliiiiK iiiiirkH, fortiM, nyiit- IxiIh -wliii'Ji (lt'Mi;,''jmti> tlio trucHiri)jriii (»r iiwiii'rHlii]) of th<'»rtirl<>, but ciiniiot (!oti- Hiitt of iinytliiiiK imTcly dcuotinK niinio or ((iiitlity : duittl/ut v. Jf'izuril, 4i) How. (N. Y.) Vv. 6. Oi'iuTally, ^('i>^ni]i1ii», an tlio iiitiuo of li town or city, citiiiiot liouxclii- Hivt'ly iipiiropriiited iim tho tritdo tnurk of uny ono. ThiiM, wIiito a corimrutioii adopted till) trade mark " Olciidoii " on tlieir iron, and the liHiality of thoir f iir- liiiei'M wan iifterwardw iiiiidn a iMirou^rl' by tlie naiiio of " Glendon," it wan he' that u Heeond coniimny there lo.ui could lawfully unc the Haiiiu ma: (ilnidun Iron Co. v. V liter, 75 Penn. toi,. 407. But title to property in the name " Keytitono Line, acijuired by many vearM' certain excliiHi ve poHMeHnion t hereof by BbipperH of mereliandiso, who did not own tho vchhoIh employed by them, will bo proteeted in equity. Tho uho of tho name, while the Hhippers were iigciitH for a HtcnmHliip comp'iny, \n a mere licence, and fjives no riKht to itH uho lifter tho ogeiuiy id terminated : Winmir V. Cliide, 9 rhila. (Penn.) 513. Tho rule that, in case of a wrojif^ful iinitatioii of a trado mark, a variHtion Hhould bo regijrded uh immaterial which rotiuircH close i jspection to detect, was applied where a trado mark, conHiHting of a lithographed female bust and the words ' ' Laird H Bloom of Yotith or Liquid Pearl, prepared by George \V. Laird, No. 74, Fulton Street, New York, was counterfeited by a like Lust, and tho same words, except "by Joseph Laird, No. 384, Broadway, N. Y.,^' but an injunction was refused, the complainant being shown to be deceiving the publio by false representations that his pre- paration was " free from all mineral and poisonous substances." Equity will not aid the monopoly of a fraud. Laird v. Wtldcr, 9 Bush. (Ky.) 181. In Liegert v. AbboU (61 Md. 27G), the plaintiffs mauufactured and sold a cor- dial under the name of "Angostura Bitters," claiming that name as a trado mark, with labels stating that it was prepared by Dr. S., formerly at Angos- tura, but now at Port of Spain, and that the bottles bore tho plaintiff's sig- nature. In fact, Dr. S. died before this suit, never lived at Port of Spain, and the bottles bore only the signature of the inventor. The plaintiff sought to enjoin the defendants from manu- facturing and selling a cordial under the name of " Angostura Aromatic Bit- ters." It was held that, in consequence of these misrepresentations, he could not maintain this suit. The use of the trade mark < ' Trommer Kxtriiot of Malt Co.," uhkI by ono UoKNiiur, who made his nxtrat^t in an entirely different manner from Trom- mer, whose extract was jiiHtly famous, was held to Imi frauduh>iit, and therefore not to be protiM.'tetl : lluikland v. liiee, 40 Ohio St. 520. A biiHiness sign witli a row of boor barrels painted on it, with tho l(>tterM " P. H." on the heads, tho words "Depot of the Celebrateil " above, and the words " I'liiliidelphia Beer" below, cannot bo protected as a trado mark per *e ; Kijiiern v. Jlink; 03 Cal. 44.'). Neither a letter, nor a horse-slioo, nor any such siinpln device, can bo claimed lis a label: Loril/tird v. Itrummond Tobacco Co., 14 Fed. Rep. 111. If the person using the name has not Ho exclusive right to its use, it will not bo prote(!teart!inilar (fradu of IfocHln : Itoyiil lliikiinj I'nivtler Co. v. Shft- rrll, 1)3 N. Y. 331. Nor U tlio word "Samaritan" on niodii^invN : /kiimoHil't Alififitt, 103 Tcnn. Ht. 1'2((. A tradd mark, to Iw valid, miiHt indi- cato tlio owniTMhip or origin of tlic articdo on wliii'li it \n uMcd. Tin* more dovii^u of a drum, witliont mori-, cannot bo tho Hulijoot of a triido mark : fl'hilf V. Schlirt, U riiila. (I'.nn.) 88. Whero thcro in hucIi a Himilarity in trade markH that a difforencc would not bo noti. ' (1, when nccii at ditferont times and pi cH, even though if tho imitation and oi i^inal were placed wide by Hide it would not miMlead, it in an infrinjfement. Sohl V. (tienemlurf, 1 WUhoii (Ind.) CO. Where for Hcventeen yearn after tho death of tho Honior member of a Hoap manufacturing firm, the firm had owned and enjoyed the excluMive uho of their original trade mark, it wan hold that on the diH8olutiou of tho firm, and Halo by hiH oxecutorH of the manufactory to L., they could not maintain a bill in e to register such trade marks, they may be registered as a series in one registration, and are assignable and transmissible as a whole, but for all other purposes arc deemed separate. (Sect. 66.) Sect. 67 provides that trade marks may be regis- tered in any colour, and sect. 68 provides for advertisement of the application. The Act of Congress providing for the registration of trade marks has been declared to be uuconstitutional by the Supreme Court of the United States : Amoskeag Manufaeturitig Co. v. Trainor, 101 U. S. 51. {I) The name in common letteis is not sufficient. In re Triee's Talent Candle Co., 27 Ch. D. 681 ; 54 L. J., Ch. 210. {in) The word "Alpine," though a common word, is a "fancy word" as applied to woollen or cotton goods. In re Trade Mark "Alpine," 29 Ch. D. 877; 54 L. J., Ch. 727. And so is "Elec- tric," applied to velveteen. In re leaf's Trade Mark, 33 Ch. D. 477. («) "National sperm" are common words. In re Trice's Patent Candle Co., supra. (o) A pictorial representation of an article is not a distinctive device. James \. Parry, 31 Ch.D.340; 56L. J.,Ch.214. [p) 40 & 47 Vict. 0. 67, s. 64 (3), and see In re Palmer's Trade Mark, 24 Ch. D. 604 ; 52 L. J., Ch. 224. {q) Raggett V. Findlater, L. R., 17 Eq. 29 ; 43 L. J., Ch. 64. 014 INJURIES TO RIGHTS OF PROPERTY. [CHAP. VIII. n'i 577 the owner uses words to induce people to believe that the goods are of a foreign brand (/•). A proper name applied to an article of manufacture may be a mark or sign indicating the manufacturer, or it may describe a particular structure or formation, without reference to the manu- facturer or the quality of the manufacture, as, for instance, a "Brougham" or a "Hansom" cab. In the lormer case the proper name is a trade mark ; in the latter case it is not(8). Even where the article manufactured is quite new, and has been pro- tected by a patent, yet, when the patent has expired, any one may not only make the article, but may use the name which has been used to describe it, where that name has only been used for the purpose of describing the article (t). A trade mark is ordinarily used to denote that the ai-ticles so marked are manufactured by a particular person, or at a particular place (t<), or are of a particular quality («). The publisher of a book or the proprietor of a periodical pub- lication, such as a magazine or a newspaper, has a right to prevent any other person from adopting the same name for any other similar publication (y) ; and this right is a chattel interest "capable of assignment (s). A word or distinctive combination of letters, not being the name of an individual or firm, cannot alone be registered as a trade mark, unless it has been used as such before the I3th of August, 1875 (a) ; and it would seem that a single letter cannot be registered, whether it has been used before the 13th of August, 1875, or not (i). A trade mark must be registered as belonging to particular goods or classes of goods (c), and, when registered, can be assigned and transmitted only in connection with the goodwill of the busi- ness concerned in such particular goods or classes of goods, and will be determinable with such goodwill {d) ; but, subject to these (>•) In re Woods* Trade Mark, 32 Ch. D. 247. As to the word " distinctive" in the new Act, see In re Hudson's Trade Mark, 32 Ch. D. 311. (») Singer Machine Manufacturers v. Wilson, L. R., 3 App. Cas. 376; 47 L. J., Ch. 481. {t) Linoleum Manufacturing Co. v. Mirn, 7 Ch.. D. 834 ; 47 L. J., Ch. 430. (;;) Itaddle v. Norman, L. R., 14 Eq. 348; 41 L. J., Ch. 525. M' Andrew v. Bassett, 4 De Or., 3. & S. 380 ; 33 L. J., Ch. 661. {x) M'Andrew v. Bassett, supra. Ford V. Foster, L. E., 7 Ch. 611 ; 41 L. J., Ch. 682. Braham v. Bustard, 1 H. & M. 447. (y) Maxwell v. Iloffg, L. R., '2 Ch. 307 ; 36 L. J., Ch. 433. Macky. Fetter, L. R., 14 Eq. 431 ; ^.1 L. J., Ch. 781. Kelli/ V. Hutton, L. R., 3 Ch. 703 ; 37 L. J., Ch. 917. Weldon v. Dicks, 10 Ch. D. 247; 48L. J., Ch. 201. (r) Tuffinan v. Tripp, 2 Bos. & P. N. R. 67. Ex parte Foss, 2 De G. & J. 230. (rt) Ex parte Stephens, 3 Ch. D. 659 ; 46 L. J., Ch. 46. ((-) In re Mitchell's Trade Mark, 7 Ch. D. 36. (c) Sect. 65. (rf) Sect. 70. Upon sections similar to these in the old Act of 1875, see Edwards V. Dennis, 30 Ch. D. 464 ; 55 L. J., Ch. 126. 4 U.^V'S,*- ^J., 8 £q. 651 ; 39 L. J., Ch. 226. Sykes v. Sykes, 3 B. & C. 541. Ford v, Foster, L. R., 7 Ch. 611 ; 41 L. J., Ch. 682. (»i) Ford T. Foster, supra. Siegert v. Findlater, 7 Ch. D. 801 ; 47 L. J., Ch. 233 (o) Sect. 76. 61G INJURIES TO KIGHTS OF PUOPEKTY. [CHAP. VIII. 4-' ■1 ri; till lijM: iiil 679 The registration of a person as proprietor of a trade mark will be primA facie evidence, and, after the expiration of five years from the date of such registration, will be conclusive evidence, of his right to the exclusive use of such trade mark, subject to the provisions of the Act {p). Trade marks — Opposition to rcyistrafioii. — By sect. 69 provision is made for opposition to registration and the giving of costs as security to prosecute such opposition, and when such security is given the case is deemed to stand for the determination of the court. Trade marks — Rectification of register. — By sect. 90, the court, on the application of any person aggrieved (7), may make an order for expunging or varying an entry, or may refuse the application, and may make such order as it thinks fit as to costs, and may decide any question for rectification of the register, or direct an issue of fact to be tried, and award damages (/•). The proprietor of a trade mark may apply to the court to add or alter such mark in any non-essential particular (s). Where each of several, persons claims to be registered as pro- prietor of the same trade mark, the controller may refuse to comply with the claims of any such persons until their rights have been determined by the court ; and the controller may himself submit, or require the claimants to submit, their rights to the court (/). Trade marks — Assignment. — By sect. 70, a trade mark, when registered, shall be assigned and transmitted only in connection with the goodwill of the business concerned in the particular goods or classes of goods for which it has been registered, and shall be determinable with that goodwill. Notifications of assignments and of transmissions of trade marks are to be entered in the register of trade marks (u). Where a trade mark has been registered, an assignee of the registered proprietor can bring an action to prevent the use of the trade mark without having registered the assignment (a-). Trade marks — Infringement. — The use of a mark so similar as to lead or be likely to lead purchasers to buy the goods marked therewith, imder the impression that they are the goods of the original manufacturer whose mark they bear, is an infringement of (p) Sect. 76. This Bection muHt be retid subject to sect. 90 (see above). Zloi/d V. Boitomletj, 27 Ch. D, 646 ; 64 L. J., Ch. 66. (y) See In re Jiiviere^s Trade Mark, 26 Ch. D. 48 ; 53 L. J., Ch. 578. (r) The controller may correct clerical errors. Sect. 91. (») Sect. 92. (0 Sect. 71. («) Sect. 78. iM re JFellcome's Trade Mark, 32 Ch. D. 213 ; 55 L. J., Ch. 642. (x) Ihlee V. Hemhaw, 31 Ch. D. 323 ; 66 L. J., Ch. 273. \ I^ECT. IV.] TKADE MAUK8. 617 i 580 that mark (>/), although the marks are so far different that any one seeing them side by side would not be misled (s). A trader has a right to make and sell machines similar in form and construction to those made and sold by a rival trader, and he has a right to refer by advertisement to his rivals' machines and name, provided he does so in a way to prevent any reasonable possibility of deception (fi). If one trader appropriates a material and substantial part of the trade mark of another trader, he must avoid the reasonable probability of error or deception, and the onus is on him to show that purchasers will not be deceived (b). Where a trade mark of a firm selling condensed milk consisted partly of a figure of a dairy-maid, but the word "Dairy-maid" was not used on the mark, nevertheless people commonly called it the " Dairy-maid " brand, it was held an infringement to sell con- densed milk under a trade mark using the word " Dairy-maid," but not the figure (c). Whether a new mark is so like another as to be calculated to deceive, is a question of comparison of the two when both are fairly used, and the size, material, effect of wear and tear, and all other circumstances are considered ; if. then, one is likely to be mistaken for the other, it is calculated to deceive {d) . Trade-marks — Action — Damages. — In the case of a trade mark, the article sold is open to the whole world to manufacture ; and the only right the plaintiff has is that goods shall not be sold under his mark. It does not follow, therefore, that the plaintiff can claim damages for every article manufactured by the defendant, although sold under that mark {e). Trade marks — Injunction. — An injunction may be granted for the infringement of a trade mark in this country, whatever may be the country of the manufacturer who has been defrauded (/). Trade marks — Account of profits. — Where the trade mark has been used with the knowledge that it belongs to another manu- facturer, the court will, in addition to an injunction against the future use of it, decree an account of profits, and give compensation in respect of the past use after knowledge of the prior right (g). (y) Cope V. Evans, L. R., 18 Eq. 138. (j) Seixo V. Provezende, L. R., 1 Ch. 192. JFotfierspoon v. Ciirrie, L. R., 6 H. L. 508; 42 L. J., Ch. 130. (a) Singer Co. v. Loog, 8 App. Cas. 15 ; 62 L. J., Ch. 481. (*) Orr-Etving ^ Co. v. Johnston ^ Co., 13 Ch. D. 434. In re Worthington ^- Co.'a Trade Mark, 14 Ch. D. 8 ; 49 L. J., Ch. 646. (e) Anglo-SwUs Co. v. Metcalfe, 31 Ch. D. 464 ; 66 L. J., Ch. 463. (rf) In re Lyndon's Trade Marl; 32 Ch. D. 109; 55 L. J., Ch. 409. (c) Davenport v. Rylands, L. R., 1 Eq. 302 ; 36 L. J., Ch. 204. (/) HoHowag v. Hollotcai/, 13 Bear. 213. Franks v. Weaver, 10 Beav. 303. Collins Co. V. Brown, 3 Kay & J. 428. Leather Cloth Co. v. American Cloth Co., I H. & M. 271 ; 4 De G., J. & S. 137 ; II H. L. C. 623 ; 36 L. J., Ch. 63. (jg) Edelsten v. Edelsten, 1 De G., J, & S. 186. Leather Cloth Co. v. American Cloth Co., supra. P 4 618 INJURIES TO RIOHTS OF PROPERTY. [cHAP. VIII. 581 Trn(fe marks — Removal of spurious mark. — Where goods marked with a forged trade mark were deposited in the hands of a bailee, who was ignorant of the forgery, it was held that the person whose right was infringed was entitled to have the spurious imitation of his mark removed from the goods. But it would seem that he is not entitled to a lien for his costs on the goods ; and he is certainly not entitled to such a lien in priority to the bailee's lien for his charges {h). Title to fees — Offices. — Where a fee has been received for a great length of time, the right to which could have had a legal origin, it may and ought to be assumed that it was received as of right during the whole period of legal memory, that is, from the reign of Eiohard I. to the present time, unless the contrary is proved ; and where a payment, originally voluntary, has been made from before the time of legal memory, the title to it as a customary pay- ment is established. But, where a fixed money payment is claimed, its existence from the time of legal memory is disproved, if, looking at the difference in the value of money, the siim claimed could not in fact have been paid in the reign of Richard I. (/). Whore a reasonable fee is claimed, the amount may vary(A-). (/() Mod V. riekeritiff, 8 Ch. D. 372 ; 47 L. J., Ch. 527, questioning T'pmmm V. Elkan, L. R., 12 Eq. 140 ; 7 Ch. 130; 41 L. J., Ch. 246. (i) Bryant \. Foot, L. R., 3 Q. B. 497; 37 L. J., Q. B. 217. (/.) Sfiep/mrdv. Payne, 12 C. B.,N. S. 414; 31L. J.,C. P. 297. } \ i s I ■ 1:1 619 582 CHAPTER IX. INJURIES TO RIGHTS ARISING OUT OF THE DOMESTIC RELATIONS. SECTION I. INJUKIES TO THE RIGHTS OF A MASTER. Injuries to the rig/its of a master — Persona/ injuries to the servant. — Tho master is entitled to maintain an action for damages for a personal injury to his servant, whereby he has been deprived of his services, and may recover the expenses incuri'ed in curing the servant's personal injuries and recovering the benefit of his services. If an assault is committed upon a servant, and the master has lost the benefit of his service by reason of the assault, an action for damages is maintainable both by the servant and the master; but the master cannot have an action for the beating, unless the battery is so great that, by reason thereof, he loses the services of his servant ; but the servant himself, for every small battery, shall have an action ; and the reason of the difference is, that the master has not any damage by the personal beating of his servant, but by reason of the loss of service (a). The service. — An actual service is sufficient ; and it is unneces- sary to prove any legal contract to serve (i). Personal injuries a rising from breach of contract. — If the act complained of is in effect a breach of contract, e. .9,Q. (i) Gladwell v. Stcggall, 6 Bing. N. C. 73b. {k) Lumletj y. Gye, 2 El. & Bl. 224 ; 22 L. J., Q. B. 463. See Wood's Master and Servant, Chap. X. SECT. I.] RIGHTS OF TIIK MASTER. (J21 •o 584 having deserted the service of the lottor, an action for damoges is maintainable against liim, as the very act of giving the servant enij)loyment is affording him the means of keeping out of his former service (/). Enticing airnij servant — T/w scrricc. — A taskworkman, who con- tracts with another by the job or piece, is the servant of that other until the work is finished ; and no other person can, whilst such work is going on, and is unfinished, lawfully employ the servant, if, by so doing, he causes him to leave his work unfinished, and has knowledge of the fact. Thus, whore a journeyman shoemaker, living and working in his liouso, was employed by a shoe manu- facturer to make a certain number of shoos at so much per pair, to be completed by a given time, and the defendant took the man into his service, and thereby caused him to leave a number of shoes unfinished, and neglected to discharge him after having received notice from the plaintiff of the subsisting engagement between such workman and himself, he was held responsible in damages to the plaintiff for the injury (w). Wliere the action is brought in respect of the enticing away of a child, it is not necessary to allege or prove any contract of service beyond what the law will imply from the relationship of parent and child, where the child is living under the parent's roof (n). Enticing away servant — The damages. — If a servant or contractor is induced not to perform the work or contract which he has under- taken to perform, through the malicious persuasion of the defendant, damages far beyond the value of the subject-matter of the contract may be recoverable from the wrong-doer (o). The measure of damages is not to be confined to the loss of the services of the servants who were actually enticed away ; but the jury are justified in giving ample compensation for all the damage resulting from the wrongful act (7^). If the defendant has derived any benefit from the services of the servant or apprentice, the master is entitled to recover the value of it {q). Seduction 0/ female servants. — To entitle a person to maintain an action for the seduction of a girl, it must be proved that the relationship of master and servant existed between the plaintiff and the person seduced at the time of the seduction. The action may be brought by any person with whom the ccduced girl was residing at the time she was seduced, either in the character of a daughter and servant, or as a ward and servant, or as a servant (/) Blake v. Layton, 6 T. R. 221. Fatccet v. Seavres, 2 Lev. 63. Adams v. Jiafeald, 1 Leon. 240. Hamilton v. Vere, 1 Lev. 299 ; 2 Saund. 169. {/») JIart V. Aldridge, Cowp. 54. Bac. Ab. Mabteb and Sbbvamt (O). («) Evam V. Walton, L. R., 2 C. P. 815; 36 L. J., C. P. 307. (o) Crompton, J., Lumky v. Oye, 2 El. & Bl. 2;)() ; 22 L. J., Q. B. 463. [p) Gioitor V. Astor, 4 Moore, 15. (q) Foster V. Stewart, 3 M. & S. 201. r I 022 INJURIES TO DOMEfiTIC RIOIITS. [CIIAP. IX. I '3 m fi85 only. ThuH, in the caso of an orphan living with a relative or a friond or benefactor, and rendering huoU domestic attendance and obedience as is usually rendered by a daughter to her father, the relative or benefactor is the proper person to Hue for the wrong done (r) ; and standing /ovd parentis, and being thus entitled to sue, he is permitted to recover damages beyond the more loss of service, as when the action is brought by the actual parent («). The law gives no remedy to a parent for the mere seduction of his daughter, however wrongfully it may have been accom- plished. Incontinence on the part of a young woman cannot be made the foundation of an action against the person who has tempted her and deprived her of her chastity (/) ; but, if she is living with her parent at the time of the seduction, and the seduc- tion is followed by pregnancy and illness, whereby the parent is deprived of the filial services theretofore rendered to him, an action is maintainable against the seducer. Seduction — Tfie service. — The foundation, therefore, of the action by a father to recover damages against a wrong-doer for the reduction of his daughter has been uniformly placed, from the earii .st time, not upon the seduction itself, which is the wrongful act of the defendant, but upon the loss of the service of the daughter, in which service the father is supposed to have a legal right or interest. It has, consequently, always been held, that the loss of service must be proved, or the plaintiff must fail. It is not enough for the father to show that his daughter was a poor person maintoining herself by her labour, that the defendant seduced her and got her with child, and that she became unable to maintain herself, and that the father was forced to maintain her at his own expense, and to pay for doctors and nurses to attend upon her, &c. («) ; or that the father had apprenticed her to the defendant, and paid him a large sum of money to instruct her in a trade, but that the defendant seduced her and got her with child, and rendered her unable to learn the trade (x). However slight the act of service may be, it must be a real, genuine service, such as the parent may command. !\''ilking the cows, nursing the children, making tea, or doing any household work at the command of the parent is, however, quite sufficient to constitute the relationship of master and servant, when the girl is residing with her father and mother (y). (>■) Holt, 453, note. («) Irwin V. Dearman, 11 East, 24. J?rfiMWno» V. Machell, 2 T. R. 4. See Wood's Master and Servant, Chap. XI. (<) Saterthwatte v. Duerst, 4 Doug. 315 ; 5 East, 47, n. 8 (m) Grxnnell v. WelU, 7 M. & G. 1033 ; Sc. N. R. 741 ; 14 L. J., C. P. 19. (*) Harris V. Butler, 2 M. & W. 639. (y) Bennett v. Allcott, 2 T. R. 168. Jones V. Brown, 1 Esp. 217. Fores v. Wilson, 1 Peake, 77. Coleridge, J., Torrenee v. Oibbins, 5 Q. B. 300. Evans V. Walton, L. R., 2 C. P. 815 ; 36 L. J., C. P. 307. Ante, p. 584. SECT. I.] RiailTS OP THE MASTER. (m 686 Indeed, it would seom that, whuru tho daughter in living with her father, forming part of his family, and liable to his control and command, proof of any act of service is unnecessary, tho right to tho service being sufliciont (s). As the loss of service is tho foundation of the action, it follows that the relation of master and servant must subsist between tho plaintiff and the person seduced at tho time of the seduction ; for otherwise the defendant's act does not infringe upon the plaintiff's rights, or deprive him of anything then belonging to him. If, therefore, tho daughter, at tho time she was seduced, was at the head of an establishment of her own, and her father was living with her as a visitor in her own house, she cannot be treated as being in the subordinate position of a servant, and tho father cannot maintain an action for loss of service (a). If the daughter, at the time she was seduced, did not reside with the father, but was living away from home in the service of another person, tho father has no ground of action for the seduction (i), even though he received part of her wages (c) (unless the person with whom she is living inveigled her away from home into a pretended service, for the purpose of seducing her), and although it is proved that the absence was only temporary, and that she intended to return .nd live with her father after the term of service had expired (rf). Eut, if she is away only on a temporary visit, and still forms part of her father's family, and makes herself serviceable to him when she is at home, such temporary absence constitutes no impediment to an action by the father ior damages (e) ; and, if she is seduced while on her way home from her master's to her father's house, having been dismissed by her master, there is sufficient constructive service (/). Where a girl was bound to serve the defendant for eleven hours during the day as a servant in husbandry, but slept at her father's, and after her day's work performed services for him, it was held that there was a sufficient service to the father (r/). Whenever the girl is away in actual service, the mere fact of her mistress being in the habit, from time to time, of allowing her to go home and assist her widowed mother in needlework, has been held to be insufficient to enable the mother to maintain an action for damages (//), although the seduction actually is effected while she is on such a temporary visit, and dming such visit she assists (z) Maunder v. Venn, Moody & M. 323 (ff) Manlei/ v. Field, 7 C. B., N. S. 90 ; 29 L. J., C. P. 79. (A) Dean v. Peel, 5 East, 47. Grinnell y. Weill, 7 li. ScG. 1042 ; 8 Sc. N. R. 741. {e) Carr v. Clarke, 2 Chit. Rep. 261. {(I) niaymire v. Haley, 6 M. & W. 5«. Harrin v. liutler, 2 ib. 639. («) Griffiths V. Teetgen, 15 C. B. 344. (/) 2'erry v. Hutchinson, L. R., 3 Q. B. 699 ; 37 L. J., Q. B. 257. {g) Rist V. Faux, 4 B. & S. 409 ; 32 L. J., Q. B. 38G. (A) Thompson v. Ross, 6 H. & N. 16 ; 29 L. J., Ex. 1. 624 INJURIES TO DOMESTIC RIGHTS. [CHAP. IX. ' .JjSAt ■ Si; ;■< 'i; t hn 587 in the hoixsework (i). If the relation of master and servant is contracted after the seduction, the loss of service cannot then be made the foundation of an action. The state of the case then is, that the master has taken into his service a servant whose services are less valuable to him by reason of antecedent occurrences ; and there is no consequential injury of which he has any riglit to com- plain as against the seducer (k). Seduction — T/ie service — Pretended hiring. — If a person hires a girl as a servant, and withdraws her from her father's service, for the very purpose of getting possession of her person and seducing her, this fraudulently-concocted service does not put an end to the relation of master and servant previously subsisting between the daughter and her father, and does not throw any impediment in the way of an action by the latter for the seduction. Thus, where the plaintiff's daughter, who was residing with the plaintiff, and ren- dering hira service in domestic matters, advertised for a situation as lady's maid, and the defendant, seeing the advertisement, pro- posed to engage her in that capacity for his sister, but afterwards hired her at weekly w^ages to take care of an empty house, Avhore he seduced her and got her with child, it was held by Abbott, C. J., to be a question for the jury Avhether the daughter was withdrawn from her f ather'n house by the defendant under a bond fide contract for her services, or the Avhole matter was a mere pretence and con- trivance on the part of the defendant to get possession of her per- son. " If she was the servant of the defendant," observes his lordship, " the action certainly cannot be maintained ; but had she ceased to be the servant of her father, the plaintiff? If the jury are of opinion that the defendant practised a fraud and contrivance to procure her to leave her father's house, without any real inten- tion to hire her as a servant, I am of opinion that the action is maintainable." And afterwards, in summing up to the jury, his lordship said, " During the time that she was in her father's house she was his servant ; was there an end put to that service ? It is alleged by the defendant that there was, because he himself hired her for the purpose of keeping his own house at the rate of 7s. per week ; but, if he did not in reality hire her with that intention, but with the wicked view of seducing her, then I am of opinion that the relation of master and servant was never contracted between them " (/). Seduction — The service — Married danghters, —Where a married woman, separated from her husband, returned to her father's house (0 Hedges v. Tagg, L. R., 7 Ex, 283 ; 41 L. J., Ex. 1C9. {k) Davies v. Williams, 10 Q. B. 728 ; 16 L. J., Q. B. 369. (/) f!pfig/it V. Olivieia, 2 Stark. 495. J i,: IX. SECT. I.] RIGHTS OF THE MASTER. 625 588 and lived with him, performing various acts of service, it was contended that a married woman was not capable of making any contract of service; but the court held that, as ap^^inst a wrong-doer, it was suflScient to prove that the relationship ,* ^i a:ter and servant de facto existed at the time of the seduction, c .a f .lu;, in the absence of any interference on the part of the husbun I i' was not compe- tent to the defendant to set ut» the husbandt. right to the services of his wife as an answer to the action (/«). Seduction — The paternity. — If the defendant, though he seduced the girl, was not the father of the child of which she was subse- quently delivered, and did not, consequently, cause the pregnancy and illness, and the consequent 'oss of service, there is no cause of action against him («). Seduction caused by the plaintiff s Ohn misconduct. — It is expected of everj*' parent that he shoiild be jealous of, and watchful over, the honour of his daughter, and protect her, as far as possible, from the advances and solicitations of notoriois libertines. If, there- fore, he introduces her to profligate acquair«tances, encourages im- proper intimacies, and invites the injury of which he complains, he has no ground of action for damages. Where the defendant proposed to marry the daughter of the plaintiff, and was received and entertained as her suitor at the plaintiff's house, and the plaintiff then ascertained that the defendant was a married man and a great libertine, notwithstanding which he allowed him to continue his addresses to the daughter, on the strength of certain assurances which he gave to the effect that his wife was afflicted with a mortal disease, and could not live long, and then he would marry the daughter, and the defendant ultimately seduced her, it was held that, as the plaintiff had by his own misconduct contri- buted to the injury of which he complained, he had no groimd of action for redress (o). Seduction — Damages. — In estimating the damages to be given to a father for the loss of service of his daughter from seduction, the jury are not confined to the consideration of the mere loss of service, but may give damages for the distress of mind which the parent has sustained in being deprived of the society and comfort of his child, and by the dishonour which he receives {p). The jury also must take into consideration the situation in life but not the mear.a (q) of the parties, and say what they think, under all the circumstances, is a reasonable compensation to be given to the (m) Harper v. lupin, 7 B. & C. 387. («) Ilager v. Grimwood, 1 Exoh. 61 ; 16 L. J., Ex. 230. (o) Seddu V. ScooU, 1 Peake, 316. A. (p) Irwin V. Learman, 11 East, 23. \q) Hodsoll V. Taylor, L. R., 9 Q. B. 79; 43 L. J., Q. B. 14. S 8 Si-i*., I 626 INJURIES TO DOMESTIC EIGHTS. [CHAP. IX. 689 parent (r). " In point of form," observes Lord EHon, " the action only purports to give a recompense for loss of service ; but we cannot shut our eyes to the fact, that it is an action brought by a parent for an injury to her child, and the jury may take into their consideration all that she can feel from the nature of the loss. They may look upon her as a parent losing the comfort as well as the service of her daughter, in whoso virtue she can feel no consolation, and as the parent of other children whose morals may be corrupted by her example " (s). Seduction — Aggravation of Damages. — Evidence is inadmissible to show that the defendant accomplished the seduction through the medium of a promise of marriage, for the purpose of enhancing the damages, as the breach of promise constitutes a distinct cause of action, in respect of which damages are recoverable by the daughter. "But you may ask," observes Lord EUenborough, " whether the defendant paid his addresses to her in an honour- able way "(!•). "The jury do right," observes Wilmot, 0. J., " in a case where it is proved that the seducer made his advances under the guise of matrimony, in giving liberal damages ; and, if the party seduced brings another action against the defendant for the breach of promise of marriage, so much the better. If much greater damages had been given, we should not have been dis- satisfied therewith, the plaintiff having received this insult in his own house, where he had civilly received the defendant, and per- mitted him to pay his addresses to his daughter " (?<). If, in the course of the trial, a promise of marriage is inadvertently proved, the jury must be told to exclude the injury resulting to the seduced girl from the breach of promise of marriage from their considera- tion, and leave it quite out of the question, in determining the amount of the damages to be recovered by the father and master for the loss of service (u). Seduction — Mitigation of damages. — The loss that the father sustains by the seduction of his daughter depends, to a very great extent, upon the value of her previous character. Prima, facie, it is to be presumed that she was a moral and virtuous gii'l at the time of her seduction, and contributed to the domestic happiness of her parents ; but it is competent to the defendant to show that this was not the case, in order to diminish the loss and reduce the damages ; and, if evidence is given to impeach the character of the girl, it may be met and rebutted by evidence on the part of the plaintiff of her previous good character. The defendant may (r; Andrews v. Askcy, 8 0. & P. 9. Southermvood v. Ramsden, cited ib. 9. («) Bedford v. M'Xowl, 3 Esp. 120. See per Lord EUenborough, C. J., in Irwin V. Bearman, 1 1 East, 23. {t) Dodd V. Mrris, 3 Campb. 520. Elliott V. Nicklin, 5 Pr. 641. (m) Tullidge v. Wade, 3 Wila. 18. ^m IX. SECT. II.] MARITAL RIGHTS. 627 690 call witnesses to prove particular acts of sexual intercourse be- tween the plaintiff's daughter and those witnesses prior to the period of the seduction, for the piirpose of reducing the damages (x). It may be shown that the seduced girl, prior to the seduction, was in the habit of keeping loose comp'<,ny or of giving utterance to loose language and immodest emarks; she may be asked, for instance, whether she had not admitted that some person other than the defendant was the father of her child ; but, before witnesses can be called to prove the nature of the language or of the remarks, she must be pointedly and expressly asked in her cross-examination, whether she ever used the particular lan- guage or the precise remarks intended to be given in evidence against her {i/). Where the whole of the cross-examination in an action for seduction wont to show that the person seduced had conducted herself immodestly and kept improper company, wit- nesses were allowed to be called to prove her general good character and modest deportment, and the general respectability of the family (s). But, where the daughter was cross-examined to show that she had submitted herself to the defendant's embraces under circumstances of extreme indelicacy, and had been guilty of great levity of conduce. Lord Ellenborough refused to allow witnesses to be called to the general charaotov of the daughter, saying she had had ample opportunity of setting her conduct right in the course of her re-examination (a) ; and, where evidence was given on the part of the defendant to prove that the girl, previous to her acquaintance with him, had had a child by another man, Lord Ellenborough restricted the evidence tendered by the plain- tiff m reply thereto to disproving the specific breach of chastity alleged by the defendant, and would not alio v him to give general evidence of his daughter's good character for chastity and respecta- bility {b). SECTION II. INJURIES TO THE RIGHTS OF A HUSBAND. Injuries to marital rights — Personal injuries to the wife — DiS' charge by conmtion before justices. — Where A assaulted ^'s wife, and for such assault was fined by justices under the 24 & 25 Vict. h) Bate v. Hill, 1 0. & P. 100. ix) Verry v. Watkins, 7 C. & P. 308. (y) Carpenter v. Wall, 11 Ad. & E. (n) J)od4v. Mrris, 3 Campb. 518. 803. (i) Baiii^cldr. Masney, 1 Campb. (Jt)C~ H"'"'' ss2 k 628 i' I Mi ?^t. V'i i 1 ii it ''9 ]| '■'! 1. h !, 4 ■ 1 '^ dA i 1 i : INJURIES TO DOMESTIC RIGHTS. [CHAP. IX. 591 0. 100, and paid the fine, it was held that an action by the husband in respect of the consequential damage to himself by reason of the assault on his wife was barred under the 45th section of the Act (c). Of the enticing away and harhonring of married women. — Every person who receives a married woman into his house, and suffers her to continue there after he has received notice from the hus- band not to harbour her, is liable to an action, unless the husband has, by his cruelty or misconduct, forfeited his marital rights, or turned his wife out of doors, or by some insult or ill-treatment, compelled her to leave him. Where the defendant persuaded and procured a wife to separate from her husband and live apart from him, it was held that he was responsible in damages to the husband, that every moment a wife continues absent from her husband is a new tort, and that every one who persuades her to do so does a new injury (rf). But, where a married woman came to the defendant's house and represented herself to have been very ill-used by her husband, who, she said, had turned her out of doors, and upon this representation the defendant received her into his house, and suffered her to continue there after he had received notice from the husband not to harbour her, Lord Kenyon held that an action could not be maintained against him, as he appeared to have acted solely from principles of humanity (e), and that, if a husband ill- treats his wife, so that she is forced to leave his house through fear of bodily injury, any person may safely receive and protect her(/). Enticing wife awai/ — Damages. — Where the plaintiff alleged that his wife left him and lived apart from him, during which time a considerable fortune was left to her separate use, and that, she beirg willing to return to the plaintiff, the defendant unlaw- fully persuaded her to continue to live away from the plaintiff, whereby he lost the assistance of his wife in his domestic affairs and the advantage of her fortune, 3,000/. damages were recovered for the wrong done (g). Adultery.— By the 20 & 21 Vict. c. 85, s. 69, the action for criminal convei-sation is abolished ; but by sect. 33 it is enacted, that any husband aay, either in a petition for dissolution of marriage or for judicial separation, or by petition only, cleiim damages from (c) Maspei- v. Broun, 1 C. P. D. 97 ; 45 L. J., 0. P. 203. Although since the Married Women's Property Act, 1882, it would appear that a husband cannot sue for wrongs conunitted against his wife (see ante, p. 62), it seems that he can still sue for consequential da- mage to himself arising out of personal injuries to her. (rf) Winsmore v. Oreenbank, Willea, 577. (e) Philp V. Squire, 1 Peake, 115. (/) Bei-thon v. Cartwright, 2 Esp. 480. \g) Winsmore v. Greenbank, Willes, 580. ^fimm^m IX. the by ion SECT. II.] MARITAL KIGIITS. 629 592 any person on the ground of his having committed adultery with the wife of such petitioner ; and such claim is to be heard and tried on the same principles, in the same manner, and subject to the same or the like rules and regulations, as actions for criminal con- versation were formerly tried and decided in courts of common law (//) ; and the damages to be recovered are in all cases to be ascertained by the verdict of a jury, although the respondents or either of them may not appear. In order to establish a prima facie case for damages from a defendant who is charged with having committed adultery with the claimant's wife, it is necessary to prove a legal marriage be- tween the claimant and the woman alleged to be his wife. It is not enough to show that he and his alleged wife intended to cele- brate, and did in their belief celebrate, a lawful and formal mar- riage, and did afterwards cohabit as man and wife upon the faith of this bona fide belief; for flio burthen is on him to prove a clear legal marriage, whereby the relation of husband and wife is really created. A mere proof of the ceremony which the parties suppose to be sufficient to constitute that relation is not enough; it must be shown to be sufficient according to law for that purpose (i). A voluntary separation was no bar formerly to the husband's claim for damages in an action of crim. con. (k) ; but it may be now under the Divorce Act, if it amounts to such misconduct as will induce the court, in the exercise of its discretion, under s. 31, to dismiss the petition (/). If the claimant connived at the adul- (h) Sec Seddon v. Scddon, 30 L. J., T. &M. 12. (•) Cathem-ood v. Cashm, 13 M. & W. 265; 13 L. J., Ex. 331. Morris v. Miller, 1 W. Bl. 632; 4 Buit. 2057. Maniages may be proved by a copy or extract from the rej^ister, purporting to be signed and certified as a true copy or extract by tlio parish officer, whether incumbent, rector, vicar or curate, who has the custody of the register (14 & 15 Vict. c. 99, s. 14. /" re llaWs Estate, 2 DoO., M. & G. 748: 22 L. J., Ch. 177) ; and the identity of the petitioner and his wife with the parties named in the register, as haying been married at the time and place therein mentioned, may be proved by any person who was present at the ceremony, or by any evi- dence sufficient to satisfy a jury of their identity [Birt v. Barlow, 1 Doug. 174. Hubbard V. Lees, L. R., 1 Ex. 255; 35 L. J., Ex. 169). The fact of the mar- riage may also be proved by the testi- mony of an eye witness of the ce-remony, without the production of any examined or certified extract from the register {St. Devereux v. Much Bew Church, 1 W. Bl. 367. Reg. v. Mainwaring, Dears. & B. C. C. 132 ; 26 L. J., M. C. 11. Sichel v. Lambert, 15 C. B., N. S. 781 ; 33 L. J., C. P. 137) ; and, in a suit for dis- solution of marriage, where the evidence was that the parties left a certain place ill order to be married, that they re- turned and stated that they had been married, and that they subsequently lived together as man and wife for many years, it was held sufficient (Patriekson v. Piitrieksoii, L. R., 1 P. & D. 86 ; 35 L. J., P. & M. 48), the presumption in favour of marriage in such and similar cases being very strong {Gompcrtz v. Kensit, L. R., 13 Eq. 369 ; 41 L. J., Ch. 382) . As to the proof of a foreign mar- riage, see Finlay v. Finlay, 31 L. J., P. & M. 149. Abbott y. Godo;/, 29 L. J., P. & M. 57. A marriage in India may be established by an authenticated copy of the register of marriages kept in India by public authority and trans- mitted to this country. {Ratcliffe v. Rat- eliffe, 1 S. & T. 467 ; 29 L. J., P. & M. 202. See, also, Add. on Contracts, 8th ed., pp. 849 et leq.) (k) Chamb rs v. Caulfield, 6 East, 256. \l) Scddon V. Seddon, 30 L. J., P. & M. 12. f. C30 INJURIES TO DOMESTIC KIGIITS. [CIIAP. IX. f 593 terous intercourse (/«), or if he suffered or encouraged his wife to live in a state of prostitution, he could not, before the pass- ing of the Divorce Act, come into a court of justice to ask for daraag^es. His having suffered such connexion with other men, was equally a bar to the action as if he had permitted the defendant to be connected with her («). But the infidelity of the husband was held to constitute no bar to his claim for damages from the adulterer, although it might be given in evidence in miti- gation of damages (o). All these circumstances, however, may now be pleaded as a defence to the petition for the dissolution of the marriage {p). Damages recorcrabk in cases of adultenj. — The injury suffered by the husband from the seduction of his wife depends upon the circumstances and situation in life of the husband at the time of the seduction, upon the mode in which he fulfilled his marital duties, the terms upon which the husband and wife were living together {q), and upon the general character of the wife at the time she was led astray. These are circumstances for the proper and sole cognizance of the jury ; and the court will not interfere with their estimate of damages, unless it is manifestly and palpably outrageous (r). Where the plaintiff's wife had not been criminally connected with the defendant alone, Lord EUenborough directed the jury to award damages propoiiioned to so much of the plain- tiff's loss of comfort, &c., as they might suppose to have been occasioned by the defendant's misconduct, and not to give damages for the whole of the injury that the plaintiff had sustained (s) . So, proof of adulterous intercourse between the wife and other men prior to the commission of the adultery with the defendant, may be given in evidence in reduction of damages, for the purpose \ of showing that the claimant has lost a wife who was worth ) nothing (^). (m) Gibber v. Sloper, cited 4 T. E. 655. (w) Pel Ld. Kenyon, lludgcs v. Wind- ham, 1 Peako, 54. {o) Bromley v. Wallace, 4 Esp. 237. [p) riinncr v. Plumer, 1 S. & T. 147 ; 29 L. J., P. & M. 63. {q) When the husband and wife are separated from each other, the wife's letters to her husband are admissible in evidence for the purpose of showing the state of her aifections at the time of the writing of tlic letters ; but, to remove all grounds for any suspicion of collusion between the husband and wife it should be proved that the letters were written at the time they bear date, and before there was any knowledge or suspicion of the adulterous intercourse. {Trelawnetj v. Coleman, 1 B. & A. 90 ; 2 Stark. 191. Edwardu v. Crock, 4 Esp. 38.) Such letters are not to bo rejected merely because they contain statements of spe- cific facts calculated to influence the minds of the jury, and which are not strictly evidence. But the jury must be cautioned not to allow themselves to bo influenced by the particular facts alluded to {^Willis V. Bernard, 8 Bing. 376; 1 M. & So. 684). (r) Wilford v. Berkeley, 1 Burr. 609. Bttberley v. Gunning, 4 T. R. 657. («) Gregson v. Theaker, 1 Gampb. 415, n. (<) Alderson, B., Winter v. Henn, 4 C. & P. 498. Forster v. Fonter, 33 L. J., P. & M. 150, n. »IW^W(MJI«,«™|P«.Lr IX. his |>ass- for len, the the iges liti- lOW the red the of lital ,^i,l|pH»,IH.JJ(»Hfi'HW^|f- 8ECT. II.] MARITAL KIGHTS. 631 694 Circumstances not amounting to a defence under the Slst section may be admissible in mitigation of damages; for, previous to the passing of the Divorce Act, it might be shown in mitigation of damages that the husband neglected his wife, or treated her with coldness, and as a j)erson whom he did not esteem or regard ; also that the marriage was kept secret, and that the wife was allowed to live with her mother, and pass as a single woman, and that she was not known by the defendant to be married at the time of the commission of the adultery («). Evidence of the defendant's circumstances or property has been held to be inadmissible for the purpose of enhancing the damages, it being considered that the jury ought to give compensation for the injury sustained without reference to the wealth of the defen- dant (.r). But, if the co-respondent has used his wealth for the purpose of seducing the respondent, the jury may, it seems, take it into consideration in assessing the damages {ij). Evidence of the humble condition in life and poverty of the defendant, has been received in mitigation of damages, for the purpose of showing that the allurements and temptations to the commission of the adultery, did not emanate from the defendant. Letters, also, written by the claimant's wife before the commission of the adultery, soliciting the defendant's addresses, and enticing him into the adulterous connexion, are admissible in evidence in mitigation of damages, but not proofs of misconduct subsequent to the commission of the adultery (c) . Adultery — Application of the damages recoveved. — After verdict, or decree, the Court for Divorce and Matrimonial Causes is to direct in what manner the damages are to be applied («), and is empowered to settle the whole, or any part thereof, for the benefit of the children (if any) of the marriage, or as a provision for the maintenance of the wife {h). (») Cakraft v. Earl of Ilarborough, 4 C. &P. 501. (x) AlJorson, B., James v. Biddiiigion, 6 C. & P. 590. (y) Cowing v. Cowing, 33 L. J., P. & M. 149. (z) Elsam v. Faucett, 2 Esp. 603. (rt) See Patterson v. Patterson, L. R., 2 P. & D. 189. (4) Petit V. Bent, 30 L. J., P. & M. 176. PeUingay v. BelUngay, L. R., 1 P. & D. 168. Whenever, in any peti- tion presented by a husband, the alleged adulterer shall have been made a co- respondent, and the adultery shall have been established, the court may order the adulterer to pay the whole or any part of the costs of the proceeding (20 & 21 Vict. o. 85, BS. 33, 34) ; or, if no sufficient justification has been proved for making him a co-respondent {Whitmorev. Whit- more, L. R., 1 P. & D. 25 ; 35 L. J., M. C. 52 ; and sec Conradi v. Conradi, L. R., 1 P. & D. 163; 35 L. J., M. C. 49), or the husband has connived at the adultery {Adams v. Adams, L. R., 1 P. & D. 333 ; 36 L. J., P. & M. 02), may order the husband to bear his own costs. But, where the Court of Appeal has exer- cised its discretion with regard to costs, the Judge Ordinary will not interfere (Z V. II , L. R., 1 P. & D. 293 ; 36 L. J., P. & M. 76). Under certain circumstances the wife will have to bear her own costs (Heal v. Heal, L. R., 1 P. & D. 300 ; 36 L. J., P. & M. 02), as well as those of her husband {Miller v. Miller, L. R., 2 P. & D. 13 ; 39 L. J., P. & M. 4. Milne v. Milne, L. R., 2 P. & D. 202 ; 40 L. J., P. & M. 13. See J^ait 632 INJUKIE8 TO DOMESTIC KIGIITS. [CHAP. IX. 595 SECTION III. INJURIES TO PARENTAL RIGHTS. Injuries to parental rights — Of the right of fathers to the custody of their infant children. — Every father has a right by the common law (f) to the custody of his legitimate infant children to the exclusion of the mother {(I), while they are within the age of nurture, or until they reach the age of discretion, viz., fourteen in the case of boys, and sixteen in the case of girls {e). If the father has been deprived of the custody of his children, it will be restored to him by the court, so long as he has not by immorality and misconduct disqualified himself from being the legal guardian of Ids children, and forfeited his claim to the assistance of the court (/). A contract by the father for the abandonment of these rights, and for the maintenance and education of the child by a relation, or any other person, does not prevent him from claiming the custody of the child, and requii'ing the child to be delivered up to him {g). An agreement made before marriage between a husband and wife of different religious persuasions with regard to the religious education of the issue of the marriage is not binding as a legal contract, and cannot be enforced. The father cannot bind himself conclusively by con- tract to exercise, in all events, in a particular way, rights which the law gives him, not for his o^vn benefit, but for that of his m V. Wait, L. R., 2 P. & D. 228 ; 40 L. J., P. & M. 30). Tho payment of costs may be enforced by writ of sequestra- tion. Bent V. Dent, L. R., 1 P. & D. 366 ; 36 L. J., P; & M. 61. Miller v. Miller, L. R., 2 P. & D. 64 ; 39 L. J., P. & M. 38. (c) The Courts of Common Law pro- fessed themselves incompetent to control the right of the father to the custody of his iniant children, and decided that they had no power to interfere to take an infant child from tho custody of its father, except for the purpose of prevent- ing improper and unjustifiable restraint of the person of the child, and protecting it from personal ill-usage and gross cruelty (R. v. Be Manneville, 5 East, 221) ; and they accordingly refused to interfere to take a child out of the cus- tody of the father, although his cruelty to the mother had rendered it impossible for her to live with him, and his conduct was grossly immoral (Ejc parte Skinner, 9 Moore, 278. iJ. v. Greenhill, 4 Ad. & El. 624 ; 6 N. & M. 265). The Court of Chancery, on the other hand, represent- ing the sovereign as parens patria, has always exercised a general control over the maintenance and education of all tho Queen's subjects within its jurisdiction, and has from time to time interfered with the father's right to the custody of his infant children, where the conduct of the father and a due regard for the interests of the children have rendered such inter- ference necessary. By the Supremo Court of Judicature Act, 1873 (36 & 37 Vict. c. 66), 8. 25, sub-s. 10, it is enacted that in questions relating to the custody and education of infants tho rules of equity shall prevail. See per Brett, M. R., Agar^Ellis v. T.nscelleii, 24 Ch. D. 323 ; 53 L. J., Ch. 10. (rf) Cartlidqe v. Cartiulge, 2 S. & T. 567 ; 31 L. J., P. & M. 85. (e) Com. Dig. Guardian (D), Agar- Ellis V. Lascelles, 24 Ch. D. 317 ; 63 L. J., Ch. 10. (/) Cresswell, J., In re Haketcill, 12 C. B. 232. Ex parte M'Clellan, 13 C. B. 680; I Dowl. P. C. 81. (g) Reg. v. Smith, 1 B. C. C. 132; 22 L. J., Q. B. 116. Vanaittart v. Vansit- tart, 4 Kay & J. 62 ; 2 De G. & J. 249 ; 27 L. J., Ch. 289. IX. SECT. III.] PAKKNTAL KIOIITS. 0133 596 children (/<). So, where the father had covenanted in a sepa- ration deed, that his infant daughter should remain in her mother's custody during eleven months in the year, and the mother refused to allow the child to receive any religious instruction, and published an obscene book, the court removed the child from the custody of the mother {i). But, where the father is capriciously interfering with an arrangement which has been acted upon, and which is clearly for the benefit of the children, the court will interfere (k) ; and, when ii parent has committed the care of an infant child to a relation who has brought it up, and had the guardianship and control of it for a lengthened period, the court will not compe't the restoration of the child to the parent, if the effect of the proceeding would be productive of serious injury to the position and prospects of the child (/). So, where a father, having grossly mis- conducted himself, has covenanted not to exercise his paternal rights, the court will recognize and enforce the covenant (in). By the 3fi Vict. c. 12, s. 2, it is enacted that no agreement con- tained in any separation deed made between the father and mother of an infant shall be held to be invalid by reason only of its pro- viding that the father of such infant shall give up the custody or control thereof to the mother; provided always, that no court shall enforce any such agreement, if the court shall be of opinion that it will not be for the benefit of the infant to ,^ivo effect thereto. Although a father is entitled to have the custody of his children up to their attaining the age of twenty-one years, the court Avill not interfere on habeas corpus, to withdraw a female child from the custody of persons with whom she may be, and hand her over to the custody of the father, if the child has attained the age of sixteen years. Up to that age, a female child is not entitled to withdraw herself from the father's protection, when there is nothing to show that he will not exercise proper parental care and protection over her (h) ; but, at that age, a girl has then a discretion as to where, or with whom, she will livt \^o). But between the age of discretion and twenty-one, there is a natural paternal jurisdiction which the law will recognize. So, where the child was a ward of court, although over sixteen years of age, and the father had refused to allow her to reside with her mother, the court declined to inter- (A) In re Agar-EUis, 10 Ch. D. 49 ; 48 L. J., Ch. 1. See In re Clarke, 21 Ch. D. 817; 61 L. J., Ch. 792. (i) In re Bemnt, 11 Ch. D. 608; 48 L. J., Ch. 497. (k) Andrews V. Salt, L. R., 8 Ch. 022, 636. {!) Lyons V. Blenkin, Jac. 246. In re Preston, 6 D, & L. 233 ; 17 L. J., Q. B. 221. In re Fynn, 2 De Q. & S. 467. Anon., 2 Sim. N. S. 64. (»)) Swift V. Swift, 4 Do G. J. & S. 710; 34 L. J., Ch. 394. Jfamilion \. Hector, L. R., 13 Eq. 511 ; Ch. 701 ; 40 L. J., Ch. 692. {») Itcff. V. Howes, 30 L. J., M. C. 47. licff. V. Timmins, ib. 45. (o) Ryder v. Byder, 2 S. & T. 225 : 30 L. J., P. & M. 44. 634 INJURIES TO DOMESTIC RIGHTS. [ciIAP. IX. '\ !ii:.;1 IE- ,ii: 697 foro with his decision (;;). By 12 Car. 2, o, 24, s. 8, the father may dispoBe of the custody and tuition of children during such time as they are under twenty-one years of ago to any person (not being a popish recusant) Avho shall maintain an action of ravish- ment of ward, or trespass, against any person wrongfully taking away or detaining such child, and may recover damages for the benefit of the child. Guardianship for nurture continues until the child has attained the age of fjurtoon years ; and a guardian for nurture has priiiid facie a right to tho custody of the child during that period ; for everv guardian for nurture has by law a right to tho custody of the ild {q). Controlling pour I' of the court over the father^ s right to the cusfodi/ of his infant children. — The court will restrain the father from acquiring possession of tho person of his infant children, when he has deserted their mother, and has by immoral conduct proved himself to be unfit to have the guardianship of them, and the interference of the court is necessary to protect the child from temporal ruin or spiritual peril (r). When the conduct of tho father has been such as to render it impossible that the wife can live with him, and the court has therefore the duty cast upon it of deciding whether the children shall be brought up by one parent or the other, it will adopt that custody which seems best for tho interests of the childi-en. Now, however, the mother may pro- visionally nominate a guardian to act after her death jointly with tho father, and if the court is satisfied that tho father is unfit to be sole guardian it may confirm the appointment (s). The grounds upon which the court has deprived a father, who has deserted, or driven away his wife, of the ctistody of his children, and placed them under the care of the mother, or a guardian appointed by the court, are, notorious impiety and irreligion ; profligacy and adultery (t) ; teaching tho children to swear, and introducing them to low company and immoral companions {tt) ; such gross and habitual intemperance, associated with the con- stant and habitual use of such improper and outrageous language as could not but bo seriously prejudicial to the moral safety and welfare of the child {x) ; the public avowal by the father of his being an atheist, and the publication by him of books deriding the truth (p) Agar- Ellis y. Lascelles, 24 Ch. D. 317 ; 63 L. J., Ch. 10. (q) Com. Dig. Guardian (D). (r) Thomas v. Roberts, 3 De G. & S. 781 ; 19 L. J., Ch. 506. Creuze v. Hun- ter, 2 Cox, 242. He Ethel Brown, 13 Q. B. D. 614. {>) The Guardianship of Infants' Act, 1886, 49 & 60 Vict. c. 27, s. 3, sub-e. 2. See post, p. 699. {t) Shelley v. Westhrookc, Jac. 266. Warde v. Wardi; 2 Phill. 791. (m) Wellesley v. Wellesley, 2 Bligh, N. S. 124. {x) In re GvUhworthy, 2 Q. B. D. 76 ; 46 li. J., Q. B. 187. \ IX. ^, the such (not vish- king the SECT. III.] PARENTAL lilGUTS. G35 698 of the Christian revelation and denying the existence of Ood (//) . There are no bounds to the interference of the court with the rights of the father to the custody of his chiklrcn, ■whenever his misconduct has brought about a separation between himself and the mother of those children, and his natural rights to the custody of tliem clash with their true iuterests; but it is a jurisdiction which the court is extremely reluctant to exercise (s), and it will not bo exercised upon the mere consideration of what may be manifestly for the benefit of the children. Before the jurisdiction can be called into action, the court must be satisfied, not only that it has the means of acting safely and efficiently, but that the father has so conducted himself as to render it essential to the safety of the children, or to their welfare in some very serious respect, that his acknowledged rights should be superseded or interfered with(rt). The mere fact of the father's having committed adultery, or of his keeping up an adulterous intercourse and being separated from his wife, has been held not to be sufficient of itself to warrant the interference of the court with his natural right to the custody of his children (i). But it is now competent to the court, whenever a decree has been pronounced for a judicial separation by reason of the adultery of the husband, to order the infant children of the marriage to bo placed under the custody of the mother. When the court is compelled, in consequence of the profligacy or immorality of the father, to remove female children from the contamination of his example, it will not accompany that measure with the great evil of separating one portion of the family from the other ; " for, if one child were to be brought up by the father and the other by the mother, that very circumstance would create factions in the family, which it is the bounden duty of the court, as far as possible, to guard against" (c). Hig/it of the mothcv. — When the father of a child under fourteen years of age is dead, the mother is, in general, entitled to the custody of the child, unless, under the circumstances of the case, it would be injurious to the child to order that it should be retiimed to the mother. The question of the mother's religion, whether she is a Protestant or a Roman Catholic, does not make the slightest difference; nor ought it to influence the court in any way: but her previous conduct, and her motive in making the application, If (y) SMlei/ V. Weatbrooke, Jac. 266. (z) Ld. Cranworth, Hope v. Hope, 4 De G., M. & G. 328 ; 23 L. J., Ch. 689. Agar-Ellis v. Lascelles, 24 Ch. D. 317; 53 L. J., Ch. 10. (a) Jn re Curds, 28 L. J., Ch. 458. (b) Hall V. Ball, 2 Sim. 35. {c) Warde v. Warde, 2 Thill. 791. \ o;}6 INJURIES TO DOMESTIC UIOIITS. [CIIAP. IX. V i ! f<- > ''if I. 599 may bo considered in determining whether her application should be entertained (d). The mother of on illogitiraato child has a natural right to its custody which the court will regard (r). Now, by the Guardianship of Infants' A(!t, 1880, on the death of tho father of an infant the mother is made guardian, either alone or jointly with any guardian appointed by tho father, or by the court if it shall think fit (,/'). liig/d of access of mothers to t/ieir infant chililren. — By tho 30 Vict. c. 12, which repeals the 2 & 3 Vict. o. 54 (see, however, tlie 49 & 50 Vict. 0. 27, s. G, infra), it is enacted that it shall bo lawful for the Court of Chancery, upon hearing tho petition by her next friend of the mother of any infant under sixteen years of ago, to order that the petitioner shall have access to such infant at such times, and subject to such regulations, as tho court shall deem proper, or to order that such infant shall bo delivered to tho mother, and remain in or under her custody or control, or shall, if already in her custody or under her control, remain therein, until such infant shall attain such age, not exceeding sixteen, as tho court shall direct ; and further, to order that such custody or control shall be subject to such regulations as regards access by the father or guardian of such infant, and otherwise, as the court shall deem proper {g) . Before the passing of the repealed Act, a child could not be taken from the custody of its father, unless it was shown, either that he was unfit to remain the custodian of the child, or that his so remaining would be an injury to the child. By tho Act, what was formerly the absolute right of the father became subject to the discretionary power of the judge, to be exercised on judicial grounds, not capriciously, but for substantial reasons. One ob- ject of the Act was to prevent the husband making use of the guardianship of the children, not for its legitimate object, namely, the proper maintenance and education of the children, but for tlio purpose of putting pressure on the wife, and compelling her to forego her legal rights and remedies against him in case of his misconduct, or in cases in which ho wished to appropriate to himself property which by law was hers, or wliich had been her separate property, or otherwise to control her in tho disposition either of her person or property (//). Another motive was that, whereas m [d) In re Turner, 41 L. J., Q. B. 142. In re Clarke, 21 Ch. D. 817 ; 61 L. J., Ch. 792. (e) The Queen v. Kash, 10 Q. B. D. 454; 52L.J., Q.B. 442. (/) 49 & 50 Vict. c. 67, s. 2. By sect. .3, tho mother may appoint a guardian in certain cases. {g) Sect. 1. (A) Ld. Cottenham, Warde v. Warde, 2 Ph. 786. 8ECr. III.] PAKKNTAL UiaHTS. 037 its ^y 600 tho courts Imd rofus(Ml to doprivo tho fatlior of tl»o custody of the child except in a very oxtreino case of misconduct, in future, whore tho wife was innocent, tho court was to exorcise a wider discretion, and consider otlier reasons besides; so tliat, as was observed hy Turner, V.-C, in applying the rule of tho court, tliero is to be kept in mind, first of all, tho paternal right ; secondly, tho marital duty ; and thirdly, the interest of tho children (/). Unless there has been a cl(>ar neglect by the father of his duty as a husband in some important particular affecting tho interests of tho child, tho court will not deprive him of liis right to the custody of it ; nor will it interfere to give tho wife access to tho child, if it is proved that she is an habitual drunkard, or that intercourse between tho mother and child would bo likely to be prejudicial to the interests of the child (/). Although the child is, at tho time of tho presentation of a petition by the mother, and continues to be, in the custody of the mother, tho court has, within the equity of tho Act, jurisdiction to interfere (/). By sect. 5 of tho Guardianship of Infants' Act, 188G, it is enacted that, " Tho court may, upon tho application of the mother of any infant (who may apply without next friend), make such order as it may think fit regarding tho custody of such infant and the right of access thereto of either parent, having regard to the welfare of the infant, and to the conduct of tho parents, and to tho wishes as well of tho mother as of the father, and may alter, vary, or discharge such order on tho application of either parent, or, after the death of either parent, of any guardian under this Act, and in every case may make such order respecting the costs of tho mother and tho liabilitj' of the father for tho same or otherwise as to costs as it may think just." Custodij, 3fc., of children after judicial separation or dissolution of marriaije. — By tho 20 & 21 Vict. c. 85, s. 35 (see, however, the Guardianship of Infants' Act, 188G (49 & 60 Vict. o. 27), s. 7, infra), it is enacted that in any suit oi other proceeding for ob- taining a judicial separation or a decree of nullity of marriage, and on any petition for dissolving a marriage, tho court may, from time to time, before making its final decree, make such interim orders, and may make such provision in the final decree, as it may deem just and proper, with respect to the custody, maintenance and education of the children, the marriage of whose parents is the subject of such suit or other proceeding, and may, if it shall think fit, direct proper proceedings to be taken for placing such children (0 In re Ealliday's JEttate, 17 Jur. 56. Jn r» Taylor, 4 Ch. D. 167 ; 46 L. J., Ch. 399. 372 k) In re Halliday, 17 Jur. 66. l) In re Tomlimon, 3 De O. & Sm. I 5 I i. I li .% I *- I m ■ \ 638 INJURIES TO DOMESTIC RIGHTS. [CHAP. IX. 601 under the protection of the Court of Chancery (m). This Act has given the court the widest and most general discretion, so that no general rule can be laid down. Tlio court must consider all the circumstances of tlio particular case before it — the circumstances of the misconduct which has led to tho decree — the general character of the father — the general character of tlie mother — and, above all, the interests of the children («). Thus, where the husband and wife had been Eoman Catholics, and the husband afterwards became a Protestant, the court refused, after a judicial separation, to give the children up to the wife to be educated as Ronan Catholics, but committed their custody to a third person, with *ull access by both parents (o). The power of the court under t.iis section of dealing with the custody of and access to children exists only where there is a suit for obtaining a judicial separation, a decree of nullity, or a dissolution of marriage. Where a petition for dissolution of marriage, therefore, is dismissed, tho court has no power to make an order as to the custody of, or access to, the children of the marriage (^j). The words " just and proper" are to be construed with reference to the circumstances affecting the suit, and not merely with reference to the rules by which courts of equity and of common law have been governed in questions respecting the custody of infants (17). The above Act only applied to orders made before or ns part of the final decree ; but by the 22 & 23 Yict. c, 61, s. 4, it is enacted that, after a final decree of judicial separation, nullity of marriage, or dissolution of marriage, the court may, upon application (by petition) for this purpose, make, from time to time, all such orders and provisions with respect to the custody, maintenance, and education of the children, the marriage of whose parents was the subject of the decree, or for placing such children under the pro- tection of the Court of Chancery, as might have been made by such final decree, or by interim orders, in ease the proceedings for obtaining such decree were still pending ; and all orders under this enactment may be made by the judge ordinary alone, or with one or more of tho other judges of the court (;•). In the interval between a decree nisi for dissolution of marriage being pronounced and its being made absolute, the only order the court can make as (>«) The order may be varied from time to time as may be necessary. 22 & 23 Viot. 0. 61, 8. 4. («) Symington v. Symington, L. E., 2 H. L. So. 415. (0) L' Alton V. L' Alton, 4 P. D. 87; 47L. J.,P. D. &A. 59. Ip) Seddon v. Seddon, 2 8. & T. C40; 31 L. J., P. & M. 101. (?) Marsh v. Marsh, 2 Sw. & Tr. 276 ; 28 L. J., P. & M. 16. See Chclwynd v. Chetwynd, L. K., 1 P. & D. 39 ; 36 L. J., P. & M. 21. Barnes v. Barnes, L. E., 1 P. & D. 463. (»•) Webster v. Webster, 31 L. J., P. & M. 184. Milford v. Milford, L. E., 1 P. &D. 715; 36L. J., M. 0. 6S. SECT. III.] PARENTAL RIGHTS. 639 602 to the custody of children is an interim order under s. 35 of the 20 & 21 Vict. o. 85 (a). The court under these statutes has no greater power over infants than parents themselves have at common law. It cannot, therefore, interfere with the liberty of children, where the parents themselves, if living together unsuspected, could not interfere with it. It may order maintenance for children up to the age of twenty-one, for that is conferring a benefit upon them; but it cannot control them in the free choice of a residence after the age of sixteen {t). Up to that age, however, it has jurisdiction under s. 35 to make orders as to their custody (?<). When a wife has been proved to have been guilty of adultery, the court will not give her access to, or the custody of, the children of the marriage (.r). It is otherwise as to access in the case of cruelty only (//). In all suits and proceedings, other than proceedings to dissolve any marriage, the court is to proceed and give relief (sect. 22 of the 21 & 22 Vict. c. 108), on principles and rules as nearly as may be conformable to the principles and rules on which the ecclesiastical courts ha'' e hitherto acted and given relief. Under the Matrimonial Causes Act, 1884, the court may make such orders -with respect to custody, maintenance and education in suits for restitution of conjugal rights, as might have been made by interim orders during a trial for judicial separation {z). As, in the ecclesiastical courts, acts of cruelty to children, com- mitted in the presence of the mother, have, in some instances, been held cruelty to her, such acts may be alleged in a petition to fl' Divorce Court, praying for a judicial separation on the ground of cruelty, and also for an order respecting the custody of the children of the marriage; but at the hearing the court will confine the inquiry to the conduct of the husband and wife. In the majority of cases, enough vnll come out in the course of the inquiry to enable the court to give directions as to the custody of the children; but, where this is not the case, the court will require further evidence to be given before making any decree (a). The court will not deal with a petitior for custody of children under the 22 «% 23 Vict. c. 61, s. 4, until both parties are before it (b). {«) Cubley v. Cubki/, 31 L. J., P. &M. 161. (t) Ruder v. Ryder, 2 Sw. & Tr. 225 • 30 L. J., P. & M. 44. (i() Mallinson v. MalUnaon, L. R., 1 P. & D. 221 ; 36 L. J., P. & M. 84. {x) Bent V. Rent, 30 L. J., P. & M. 176. Clout V. Chut, 2 S. & T. 391 ; 10 L. ,> , P. &M. 176. {y) Bacon v. Bacon, L. R., 1 P. & D. 107. (z) 47 & 48 Vict. c. C8, s. 6. {a) Stiggate v. Sitggate, 28 L. J., P. & M. 40. («) Staceyy. Stacey, 29 L. J., P. & M. 63. f It !i H ? >. Si y^ " =1 ^1 m'i'M'f •WipH}!»«>. G40 IXJURIKS TO DOMESTIC RIGHTS. [ciIAP. IX. 603 By tho Ouardiansliip of luf ants' Act, 188G, s. 7, it is enacted that, — " In any case wlioro a dooroo foi* judicial seiiaration, or a decree eithoi- iiini or absolute foi' divorce shall be pronounced, the court pronouncing such decree may thereby declare the parent, by reason of whose misconduct such decree is made, to be a person unfit to have the custody of the children (if any) of tho marriage ; and, in such case, the parent, so declared to be unfit shall not, upon the death of the other parent, be entitled as of right to the custody o\ guardianchip of such children." Cndodi/ of the chihlrcn of British subjects born ahoacl. — Accord- ing to the doctrine of our law, the sovereign, as prirrns patriie, has an interest in the maintenance and education of all its sub- jects, whether they are resident within the realm or domiciled abroad. The child of a British father, born abroad, is a British subject, and is, to all intents and puqDoses, to be deemed as if born in England ; and the court, as representing the sovereign, will afford its aid, when requisite, in favour of the children of British subjects born abroad. Rel'of may be sought, and the jurisdiction of the court exercised, on behalf of an infant that is not, at the time the jurisdiction is asked for, Avithin the control of the court. It may be that a child is out of the jurisdiction under Bucli circumstances tliat no jurisdiction can bo exercised because no order can be enforcO'l ; and in such a case there is not a want of jurisdiction, but a want of power to enforce jurisdiction. If persons abroad have property here, the court wiV proceed against that property to enforce obedience to its decrees (c). And where a Frenchwoman, the mother of an infant who had been born and was still resident abroad, and who had no property in this country, but whose paternal grandfather was a natural-born British subject, brought proceedings in the French courts for the appointment of guardians, which proceedings Avere directed to stand over until the course adopted by the English courts had been ascertained, tho English court exercised its jurisdiction and appointed a guardian to the infant (d). Custody of the children of foreigners in this countri/. — The court exercises the same jurisdiction over the custody of foreign children in this coimtry that it does over native children ; and the reaaon is, that foreign children, as well as foreign adults, owe allegiance to the crown, and are, to a certain extent, subjects of the crown, as long as they are in this country (e). But, although guardians in this country have been appointed, the court will not, from any (c) Mope V. Hope, 4 Do Q. M. & G. 328 ; 23 L. J., Ch. 686. [d) In re Willotighby, 30 Oh. D. 324. {A Hope V. Hope, 4 Do G. M. & Or. 328; 23 L. J., Ch. C88. ""•wppmiiP" mf Twm SECT. III.] PAUENTAL KIGHTS. G41 604 considerations of supposed benefit to foreign infants, interfere with the discretion or custody of a guardian wlio lias been ap- pointed by a foreign court of competent jurisdiction, and who wishes to remove them back to their native country to complete their education there (./'). General pouors of the eotirt to appoint (jiuirdians. — Under the Guardianship of Infants' Act, 1886, the court has power to appoint guardians to act jointly with the mother if the guardians appointed by the father are dead, or refuse to act {y). It may also remove guardians, and appoint others in their place, on being satisfied that it is for the welfare of the infant (//). Every guardian shall have all such powers over the estate and person of an infant as any guardian appointed by will, or otherwise, now has in England under 12 Car. 2, o. 24 {i). SECTION IV. INJURIES UNDER LORD CAMlMtEl.h's ACT. Actions for cowpensatina the faniilies of persons icron(jfuUif hilled. — By the 9 & 10 Yict. c. 1)3, it is enacted that, wliensoever the death of a person shall be caused by any wrongful act, neglect, or default, which, if death had not ensued, would have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liab'e if death had not ensued shall be liable to an action for damages, although the death shall have been cairsod under such circumstances as amount in law to felony ; and (sect. 2) that every such action shall be for the benefit of the wife, husband, parent, and child (A) of the de- ceased person, and shall bo brought by, and in the name of, his executor or administrator (/), and the damages recovered, after deducting certain costs, shall be divided amongst the before- mentioned relatives, in such shares as the jury by their verdict shall find and direct. But not more than one action shall (sect. 3) be brought in respect of the same subject-matter of complaint ; and the action must be commenced within twelve calendar months after the death of the deceased person. If the deceased has my (/) ^^K'jeiit V. Vetzern, L. R., i E(i. 704. See Foster v. Benntj, 2 Cli. Ca. 237. (y) 49 & 50 Vict. c. 27, s. 2, au>l see supra. {h) By 8(3ct. r.. (i) By so<'t. 8. See ante, p. 507. (A-) Au illegitimate child is uot within A. tiie purview of the statute. Dickinson V. yorl/i Kamerv. Itail. Co., 2 H, & C. 735; 33 L J., Ex. 91. [l) Iii case lliore is no extcutov, &c., or of lii.s uiiwilliog'iieBf, &c. to sue, the notion mar be brought by the persona liciieticiully interested. 27 & 28 Viot. c, 95. T T 642 INJURIES TO DOMESTIC RIGHTS. fcHAP. IX. 605 brought an action in his lifetime, or has received satisfaction during his life in respect of the injury, no fresli action, or no action, as the case may be, can be brought by his personal repre- sentatives after his death (iii). Where a sum of money was received by way of compromise of an action under Lord Camp- bell's Act, it was held that the court had the same power to dis- tribute the fund in the same manner as a jury might have done in an action under the Act (;/). Contributory negligence on the part of the deceased will be a bar to an action by his personal representatives, where the deceased himself, if he had lived, could have maintained no action for the injury ; but, if the circumstances of tlie negligence were such that, if death had not ensued, the deceased might have brought his action in respect of it, his representatives may maintain an action in respect of pecuniary loss occasioned by the death, although that pecxmiary loss would not have resulted from the accident to the deceased himself, had he lived {im)- A person may contract himself out of the Employers' Liability Act, so as to bind his representatives (o) . Injuries under Lord •Camphcirx Act — Damages recoverable. — The jury, in assessing the damages, must confine themselves to injuries of which a pecuniary estimate may be made, and cannot lawfully increase them by adding a solatium in respect of the mental suffer- ings occasioned by such death. They cannot, therefore, lawfully inquire into the degree of mental anguish which each member of the family has suffered from the bereavement, and cannot take into consideration the mental sufferings of a widow or child for the loss of a husband or a parent {p). It is Cxcar, also, that the damages aie not to be given merely in reference to the loss of any legal right against the deceased, which might have been turned to profit if he had lived, and Avhich has been lost by his death ; for tho damages recovered are to be distributed amongst the relations only, and not lo all individuals sustaining loss ; and tho relations are not entitled to coir pecuniary benefit 1 1 lur j wMch they had entered cipim damage s ? )r the io;':' Bou, had covenanted to pa;>' • I 'inn under that statute, if the only from inf^ 1 .'e was derived from a contract .via j'r'' ((/). But a mother may .-t a' ?'ni:.;'ity which the deceased, her ev during his and her joint lives (r). (w) Jliyid V. G)Yitt Easter, I Rail, fr., L. R., 3 :i. B. 650 ; 37 L. J., Q. B. ■_,?'. \n) Buhner v. J}iilin:r, 25 Oh. D. lOO ; 53 I<. J., Ch. i02. (./h) .Scinor V. JFurd, 1 Ei. & El. 385 ; 23 L. J., Q, V •39. Fi/m v. O. N. Jtail. Co., 4 B. (S ^. o S ; 3'J! L, J., Q. B. 377. (t) Oriji 'Jf V. J-Mrl of DiuUeij, 9 Q. B. D. o57; 61 L. J., Q. B. 643. (;;) lUake v. Midkoid Rail. Co., 18 Q. B '-'' ; 21 L. J., Q. B. 233. Jrws- wiiiih \. S'luth Eastern Rail. Co., 11 Jur, 769. (//) Si/les V. A'if'/i Eastern Rail. Co., 44 i'i. J., C. P. I'ji. ()■) Jtiiu-l II V. Loiiilon ^- North TFesteru Rail. Co.. L. li., 8 Ex. 221 ; 42 L. J., Ex. 153. ::L, 'K'lipppipVifflPPPni IX. SECT. IV.] FAMILf UIGIITS. 043 was 606 The practice has been to ascertain what benefit could liavo been claimed from the deceased, if he had lived, by the person seeking to obtain damages ; and, if tlio latter can show that he had a reasonable expectation of pecuniary benefit from tbo continuance of the life, and is also within the requisite degree of relationship), his claim may fairly bo considered by the jury in assessing the amount of damages (s). Thus the loss of the benefit of education, and of the enjoyment of the comforts and conveniences of life, depending upon the possession of pecuniary means to obtain them, through the death of a father whose income ceases Avith his life, is an injury in respect of which an action can bo maintained on the statute ; and so, also, is the loss of a pecuniary proA'ision which fails to be m.'idf^, owing to the premature death of a person by whom such provision would have been made had he lived; for, wherever there is a reasonable expectation of pecuniary advantage from the prolongation of the life of a person, the extinction of such expectation by negligence occasioning his death will be suffi- cient to sustain an action upon the statute ; and it is for a jury to say, taking into account all the imcertainties and contingencies of the particular case, whether there Avas such a reasonable and well- founded expectation of pecuniary benefit as can be estimated in money, and so become the subject of daniajros (i*). No damages can be given in respect of funeral expenses and mourning, there being no language in the statute referring to these expenses and rendering them recoverable (/<). Whatever comes into the possession of the family, who have suffered by the death of their relative, by reason of his death, must be taken into account in estimating the damages ; and, therefore, contrary to the general rule, the sum received on an accident policy must be taken in reduction of damages (x). Injuries under Lord CampheU's Act — Actions for the benefit of c/.'klren. — A claim may bo made on behalf of an infant en ventre sa mere {//). Injuries under Lord CampbcWs Act — Death of an alien. — The provisions of the act extend io cases where the person in respect of whose death damages are sought to be recovered was an alien, and was at the time of the wrongful act, neglect, or default which caused his death, on board a foreign vessel on the high seas (2). («) Franklin v. South Eastern Rail. Co., 3 H. & N. 214. Lmkicorth v. John, son, 4 H. & N. 659 ; 29 L. J., Ex. 25. (t) Pym V. Great Northern Jinil. Co., 4 B. & S, 396; 32 L. J., Q. B. 377. HetheringtoH v. X. E. liuil. Co., 9 Q. B. D. 160; ei L. J., Q. B. 495. (*() DaKon v. South Eastern Rath Co., 1 C. B., N. S. 296 ; 27 L. J., C. P. 227. (.!•) lliehs V. Xewport, ijc. Rail. Co., 4 B. & S. 403. ('/) The Ueoryc and Richard, L. R., 3 A.'&E. 400. {z) The E-rplorer, L. R., 3 A. & E. 2S9: 40 L. J., Adm. 41. T V 2 ■HI 644 607 •3 In It I J CHAPTER X. INJURIES TO PUBLIC RIGnXS. Public rights — Creation of a highwai/. — A highway may be created in either of two ways, that is, by dedication or by act of parliameut. Except where a highway is created by au express enactment of the legislature, it derives its existence from a dedica- tion to the public by the owner of the land, over which the highway extends, of a right of passage over it {(i). But it is not compulsory on the public to accept the use of a way when offered them {h). Acceptance by the public is ordinarily proved by user by the public ; and user by the public is also evidence of dedication by the owner (c). Dedication. — If tlie owner of the soil makes and throws open a foot- way or carriage-Avay leading from one part of a public thoroughfare to another part of a public thoroughfare, and neither marks by chain or bar, or visible distinction, that he means to preserve all his rights over it, nor excludes persons from passing through it by positive proliibition, and Ihf public notoriously use the way for a lulinbol' uf srars, it is prosunu'd (o bo dcdiffitod to the nm of tlio public, and Ihmmiuioh h publio highway, which cannot luwfully be interrupted, though it was originally opened and in- tended for private convenience (f/). The user und enjoyment of tho way by the public must have been had under circumstances from which an intention on the part of the owner uf the soil to dedioato the way may fairly be inferred. If, therefore, the passage of the public was allowed under some special agreement or licence of the owner of the soil, the conditional and permitted user will not establish the public right. Thus, whore the owner of land agreed with an iron company, and witli the inhabitants of a hamlet repairing its own roads, that a way over his land in such (a) Dovaston v. Payne, 2 Sm. Lead. Cas., 6th ed., p. 140. (A) Fuher v. rrowse, 2 B. & 8. 770, 780; ;U L. J., Q. B. 212. (<■) VtihUt V. Lady CaroUiw Maxse, L. R., 8 C. P. 704; 42 L. J., C. P. 27fc.. In tho case of a covinty bridge not erected in an existing highway, user by tho public is not siifflciout in itself to prove un acccptauce f tic dedication by the county. The Queen v. Southampton, 17 Q. B. b. 424. ((/) it. V. Lloyd, I Canipb. 260. Moberta V. Uitrr, ib. 263. E. v. Jlarr, 4 ib. 16. CHAP. X.] IIIGHWAVS. 045 be of 608 hamlet should be open to oarringes, that the company should pay liim five shillings a-year, and find cinders to repair the road, and that the inhabitants of tlio parish should lay down and spread the cinders, and tlio way was tliereupon left open to all persons passing with carriages for nineteen years, at the end of which time, a dispute arising and the road being loft unrepaired, the owner of the land stopped uj) the road, it was held tliat there had been no dedication of the road to the public, but only a licence to use it on certain terras and conditions, which licence might be withdrawn on the conditions not being complied with (c). "Where an ancient highway was illegally stopped, and the public deviated on to the adjoining land, wliich was an open down, forming a tract nearly parallel with the old road, wliich track they continued to use for about twenty years, Avhen it was stopped, and the old road was re-opened to the public, it was held that the deviaiiug trai k had not become a public highway, as it bad never been used by the i)ublic except when they had been shut out froin the old road, and the user, being referablo to the right of the j)ublic to deviate on to the adjoii\iug land whenever the owner of the soil illegally stopped the highway (_/'), would not establish any permanent dedication of the deviivtiug track to the use of the public, so as to make it a \Hn"manent public thovoiigh- iaieiy). User of a way by the public is by no means conclusive of the way being a public way ; it is evidence only, to bo weighed in con- nection Avith surrounding circumstances. AVliore, therefore, there was a wood, and divers paths or tracks through it leading in different directions, and people wandered Avhere they pleased through the wood and made tracks, but the tracks were used only ill dry weaflicr, iuid wore hardly passable after rain, and led to no public place which could not be reached by a more convenient thorouglifare, it was held that this was a mere permissive user of the wood for piu-poses of recreation and pleasure, and that there was no dedication of a Avay to the public to be used " as of right " (//). The fact of a road having been repaired by the parish as far back as living memory can go is a strong fact in favour of the road being a public road; but it is not conclusive (/). Animus (Micandi. — There must be on the part of the owner of the soil an aiiiuiiis dididudi, of which the user by the public is evidence and no more, so that a single act of interruption by ((') Barruchngh v. Johnson, 8 Ad. & E. 99 ; 3 N. & P. 233. (/) iW, p. 637. (-?) Diiins V. Hawkins, 8 C. B., N. S. 867; 29L. J., C. P. 343, (//) Schuringc v. noivell, 2 F. & F. 818. Chapman v. (-ripjjn, ib. 807. Mildred v. Weaver, ib. 33. (0 Iteg. V. Haukharst, 11 W. R. 9; 7 L, T. R., N. S. 268. T-r^ 6J0 IN.IUHIKS TO rUKLIC HIGUTS, [cHAr. X. V it 609 the owner of tlie soil is of much more weight upon tlio question of intention than many acts of enjoyment {/:), But the question of dedication does not depend upon what a man says, but upon his acts. " A man may say that ho does not mean to dedicate a way to tlio public ; and yet, if he has allowed them to pass every day for a length of time, his declaration alone would not be regarded. The facts may warrant a jury in believing that the way Avas dedicated, though he has said that he did not so intend ; and, if his intention is insisted upon, it may be answered that he should have shown it by putting up a gate, or some other act " (/). If the owner of the soil shuts up the Avay only one day in the year, that is sufficient to show that ho docs not intend to dedicate, but gives a license only (m). The erection of a bar, though it may have been knocked down, rebuts the presumption that a way has been dedicated to tlio public ; and, where tho owner of the soil placed and maintained a gate across a footway, with the view of preventing a public right of passage, and the gate went to decay, and for twelve years there was no gate at all, and then the owner of tho soil put up a new gate at tho place where tho old gate formerly stood, it was liold to bo a question for the jury whether the owner of the soil, from suffering the gate to be down so long, and pei-mitting tlie public to use the way without obstruction for so many years, had completely (led i fated tho way to tho public, so that the gate could not be replaced (ii). AVJiore a bar, placed across a bridge, was kejjt locked, and opened only in (imos of flood, when tho ford hard by was dangerous or impassable, it was held that this Avas conclusive to show that there was no general right of passage (o). If there has been a public, uninterrupted user of a road for such a length of time as to satisfy a jury that the owner of tho soil, whoever he might be, intended to dedicate the road to the public, this is sutlieient to prove the existence of a highway, though it cannot be ascertained who was the owner of the soil of the road during the time it was so used (;)). Tho open user by the public of a way as of right raises a printd facie presumption of tho existence of the public right ; and, Avhen such user is proved, the omm lies on tho person who seeks to deny the inference from (k) Parke, B., Poole v. Huskinson, 11 M. & W. 830. {1) Littlcdalo, J., lUirradnugh v. John- son, 8 All. & E. 10.5 ; 3 N. & P. 233. Surrey Canal Co. v. Hall, 1 M. & G. 403 ; 1 Sc. N. R. 264. (h») Trustees of llritish Museum v. Finnis, 6 C. & P. 465. (h) Lcthbridgc v. Winter, 1 Campb. 263. (o) R. V. Marquis of liuekingham, 4 Campb. 190. [p) Keg. V. East Mark, 11 Q. B. 877. Wiiliums, J., Dawes v. Hawkins, 8 C. B., N. S. 857; 29 L. J., C. P. 343. CHAP. X.] HIGHWAYS. 647 610 such user to show that tlie state of the title was such that dedi- cation was impossible, and that no one capable of dedicating existed (q). There is nothing in the nature of a sea-wall or em- bankment erected to protect land against the encroachment of the sea inconsistent with the existence of a public riglit of way along it, except so far as the necessary repairs of the wall might make a temporary stoppage of the way necessary, and the same evidence of user will raise a prcsunijition of a dedication of a right of way by the owner of the soil in the case of such iin embankment, as in any other case of uninterrupted and open user by the public (;•). Occupation roads, laid out through an estate for the use and convenience of the occuj)iors, are not thereby dedicated to the public (.s). But where a road lias been set out under the award of inolosure commissioners as an occupation road to bo used and repaired by particular persons, there is nothing to prevent the owners from dedicating it to the public, so that it would become, instead of an occupation road only, a public highway {f). If an owner of land lets land on building leases, and houses are built which require a way to them, and a way is made, and used by carts and carnages going to these houses, and which can go nowhere else, there is notliing from these facts alone to esta- blish a dedication of the way to the public («). No particular time of enjoyment is necessary for evidence of dedication ; it is not, like a grant, presumed from length of time. If the act of dedication is unequivocal, it may take place im- mediately ; for instance, if a man builds a double row of houses, opening into an ancient street at each end, making a new street, and sells or lets the liouses, that is instantly a highway ; and, olthough the new street may terminate in a cid de sac, it may nevertheless be a public place, accessible to all. But, if a bar or rope, or the slightest obstruction, is put up, showing that the owner of the soil does not intend to give a general and unreserved right of passage, that will prevent a dedication. To support a dedication, the street or road m\ist be finished as a perfect street ; for, if the foot-ways are not completed, or paving has to be done, or fences to be put up, the evidence of an intention to dedicate is insufficient (v), unless the way has been used in its unfinished state as a public thoroughfare for a considerable number of years {w). Iq) Jtig. V. Vetrie, 4 El. & Bl. 737. ()■) (j'neittvUh liuard of Jforks v. Maiuhlay, L. R., 5 Q. B. 397 ; 39 L. J., Q. B. 205. (*) Selbti V. Crystal Palace Dhlrict Gas Co., '30 Beav. 606 ; 31 L. J., Ch. 695. (/) Hcff. V. Bradficld, L. E., 9 Q. B. 652 ; 43 L. J., M. 0. 155. («) Ifoodyer v. ILuddcn, 5 Taunt. HO. But 8CC liatcman v. liliick, infra. (v) Woodycr v. Madden, f> Taunt. 140. (if) Jarvis v. Dean, 3 Bing. 417. ! i"; 648 IN.IUKIKM TO PITHLIC lUOHTS. [chap. X. ki'; c; 611 Thoro may lin a highway, by dodieation to the public, whero thoro is no tlioroughfaro. Whoro there was n public street, ami at the side of it a passage leading to a court, consisting of fifteen houses, all of which Ix'longed to the plaint iff, but the court had been freely used by the public for many years without reslriction, it was held that this was evidence from which a jury might find a dedication to the public, although the court and the thoroughfare had originally been made for the use of the occupiers of the houses, and led only to their dwellings (r). But if a road is made for the accommodiition of particular persons only, it is not a public road ; and there is no reasoji why the inhabitants in a street which is not a thoroughfare should not put up a fence at the end of it, and exclude tiio public (//). W/io mail (Icdivdtc. — A mere tenant or lessee has no power to throw open land to the public, and create a public thoroughfare, in derogation of the rights of the landlord or rever&i(jner. There cannot be a public way by dedication, unless there is some evidence to show that the owner of the soil has consented to such user. The consent of the lessee is not sufRcient for that purpose, because it cannot bind the owner of the inheritance {z). There cannot be n dedication of a way to the ptiblic by a tenant for ninety-nine years without the consent of the owner of the fee {a). Lut, from long-continued user, going back as far as living memory will extend, over land under lease, a dedication to the public anterior to the lease may bo inferred, although no proof of user prior to the lease is given {h) ; and, if the acts of user are notorious, and go on for a great length of time, and notwithstanding a frequent change of tenants, it may bo presumed that the owner has been made aware of them, and that the way was used with his concurrence [c). Commissioners of public works have no power to dorlicate to the use of the public, as a highway, land which they li.ive been intrusted with the ownership of for a special purpose, and for which special purpose the land may at some future period be required ; and the public cannot be considered as having acquired a right by adverse enjoyment, but only by usurpation on rights which were designated by Parliament, and which, therefore, could not be infringed (r/). Limited dedication. — There may be a dedication of a way for a limited purpose, as for a foot-way, horse- way, or drift-way ; but (x) Itateman v. lihick, 18 Q. B. 870 ; 21 L. J., Q. B. 407. ill) Best, J., Woody. Veal, 6B. & Aid. 4.57. (z) Wood V. Vial, 5 B. & Aid. 454. Harper v. Charlcsuorth, 4 B. & C. 591. («) Baxter v. Taylor, 4 B. & Ad. 75. Daniel y. Anderson, 31 L. J., Ch. 610. (A) Winterbottum v. Lord Derby, L. R., 2 Ex. 31C; 36 L. J., Ex. 194. {(•) Daviea v. Stephens, 7 C. & P. 570. id) LittledfJe, J., Ji. v. Leake, 6 B. & Ad. 485. '. X. CUW. X.] IIKillWAYS. 610 612 thnro cnnnot be a dcdicnf ion to a limitod luirt of the piiblio, ns to tlio inhabitants of a particular parish. Siioli a dedication wonld bo fiiinply void (»(■, p. 637. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 11.25 Hi- i2£ 122 ■lUu KiDtographic Sdences Corporation 7i WfST MAIN STME? WIBSTn,N.Y. 14SM (7U) •73-4903 & XJ L- ■-, "'.*-■■-. c 650 INJUKIES TO rUBLIC HIGHTS. [ciiAr. X. P:»?tK; 613 the ditch with his horso and carriage, it was held that the com- missioners of sewers were not responsible for the injury, as the highway and the ditch had immemorially existed in the same state, and the commissioners were imder no obligation to fence it off from the road. "The road," observes Parke, B., *' was dedicated to the public with a ditch beside it. This is an ancient sewer, which has existed with the highway time out of mind, and, there- fore, the public have only a right to the highway subject to the sewer " (J). But, whenever a highway has been dedicated to the public, subject to certain obstructions left in it for the convenience and accommodation of the occupiers of the adjoining houses, the obstruction or inconvenience to the public must not be increased by any act of commission or omission. Cellar-doors or cellar-flaps must not be left open or unfastened, so as to expose the public to any unusual, unexpected, or unforeseen danger; and all things accessorial to the beneficial use and occupation of the adjoining dwellings must be kept in a proper and safe state, either by the occupiers ot the houses, or by those upon whom the law casts the burthen and duty of repairs (A). If an owner of land has been content to allow the public a limited right of way over his lands and across a brook by a certain number of stepping-stones, the surveyors of highways have no right to widen the footpath ov the stepping-stones, or to do any- thing to Increase the public accommodation, or enlarge the right of passage, without the consent of the landowner. If, therefore, the surveyor places flag-stones on the Stcpping-stones, so as to make a kind of rough bridge, the landowner has a right to remove them(/). When a way has been dedicated to the use of the public subject to a gate across it, the public can only take the way subject to the inconvenience of the gate ; but, when the way has been dedicated without a gate, the owner of the soil cannot lawfully obstruct the road with a gate (>«). T/iere can be no dtdicationfor a limited time, certain or uncertain. If dedicated at all, the way is dedicated in perpetuity. Hence the riaxim " once a highway, always a highway " ; for the public cannot release their right ; and there is no extinguishment of the public right by presumption or prescription (h). Common highway of necessity. — " If there is but one road to a IJ) Cornwall v. Metropolitan Coiiwiis- »ion of Sewers, 10 Exch. 771. Black- bum, J., Fisher v. Prowse, supra. (yt) Daniels v. Potter, 4 C. & P. 262. Proctor V. Harris, ib, K37. [l) SutcUffe V. Survei/ors, ^c. ofSoiverbij, 35 L. J., Q. B. 7. {in) James v. Hayward, Cro. Car. 184; W. Jones, 221. («) Byles, J., Bawes v. Hau-kins, 8 C. B., N. 8, 8o7 ; 29 L. J., C. P. 343. \m- T>.''',[\p\^^ri*h CHAP. X.] 'jwnwTT-^ *?lflk'"**Wr~ !J I 1' m '! ! i. f m ■' r 615 Narigahk rivers — lii/jht of navigation. — The right of soil in arras of the sea and public, navigable rivers, which is prima facie vested in the crown, independently of any ownership in the adjoining lands, must in all cases be considered as subject to the public right of passage, however acquired ; and any grantee of tlio crown must take subject to such right. Rivers Avhich are pnhlici Juris, and common highways for man or goods, may be fresh or salt, and may flow and re-fiow or not. *' The Wei/, the Severn, and the Thames, and divers others, as woll above the bridges as below as well above the flo wings of the sea as below, and as Avell where they are become to be private property, as in what parts they are of the King's property, are public rivers, juris piibliei" (s). The public have at common law a right of navigation on all navigable streams, so far as the tide ebbs and flows, and may acquire by user rights of navigation on inland watei-s above the flow of the tide. Those who have occasion to navigate tlie river have a right to the whole of the space capable of being used for navigation {a) ; and, if a riparian owner or tlio grantee of the soil places any obstruction in the bed of the river, which deprives another of his right of free passage along it, he is liable to an action for the private and particular injury to the individual (i). But, if the obstruction has not deprived any particular individual of his right of passage along the stream, or caused him any per- sonal damage different from, and independent of, that which is sustained by the rest of the public, an action for damages is not maintainable, but the public remedy, by way of indictment, must be pursued (c). Where the public right of free navigation is taken away, and the power of removing obstructions is vested in the hands of con- servators of the river by act of parliament, there can be no redress by way of action on account of any disturbance of the individual right. The individual grievance is only accessory ; and, the prin- cipal being taken away, the accessory follows (d). (z) Hale, de Jur. Mar. pt. 1, c. 3. (rt) Attoruei/-Oi'tifral v. /.'«>■/ of Lons- dale, L. R., '7Eq. 377; 38 L.'J., Ch. 335. Attorney-General \. Terry, L. R., 9 Ch. 423. (h] Hose V. Groves, 5 M. & G. 613; 6 Sc. N. R. 663. Ruse v. Miles, 4 M. ic; S. 101. Ante, p. 11. ic) Dimes v. Petley. 15 Q. B. 283. And it is to be observed that an indict- ment in such a case, — viz., where an action would lie, if the complainant had sustained damage different from that of the public, — being substantially a civil and not a crimintul proceeding, the rule that a master is responsible for the wrongful act of his servant, though ho does not himself jovsonally interfere, and the wrongful act is contrary to his general orders and without his know- ledge, will apply. Ittg. v. -Stephens, L. R., 1 Q. B. 702 ; 35 L. J., M. C. 251. (rf) Kearns v. Cordirainers' Co., 6 C. B , N. S. 388 ; 28 L. J., C. P. 285. There is a distinction in this respect between duties imposed by statute on trustees or commissioners for the purpose of render- ing a river navigable and nothing mere, and who have no interest in the soil of the river {Cracknctly. Mayor of Thet/ord, CHAP. X.] NAVIGATION. 653 616 Where rights of public navigation have been acquired over a stream the bed of which is private property, the public have a right to pass as fully and freely, and as safely, as they have been wont to do. But the bed of the stream belongs to the owner subject only to such rights of navigation ; and an interference by him with the bed of the stream is not wrongful, unless there is a present interference with the right of navigation, or unless it can be shown that what is done will necessarily produce effects which will inter- fere with that right (r). Navigable rivers — Eight of towing. — There is no general, com- mon law right of towing along the banks of a navigable river (/) ; but such a right may be acquired by usage, which is evidence of a dedication of the towing-path to the public as a highway to be used only for the purpose of toAving barges or vessels {g). Navigable rivem — Big/d of Jinking. — Where the public at large had from time immemorial fished in a private, non-navigable river, and the defendant claimed a right to fish there as one of the public, it was held that no such riglit could bo acquired by user, however long continued {h) ; but in a navigable river, the soil of which belongs to the crown, the public prima facie have, as of common right, a right of fishing. It falls upon a person who disputes this right to show that he has a riglit of several fishery (/). And if he succeeds in proving this, tlie public right is ousted ; for the public cannot in law prescribe for a profit a prendre in alieno solo (/•:) ; nor acquire any right adversely to the owner under any statutory limitation. Such a several fishery cannot be abandoned except by deed (/). Obstructions in highirays. — "If a man hangs a gate upon a post, and shuts it with a catch upon another post across a highway used for horses and carriages, so that men on horseback or in carriages L. K., 4 C. P. 629; 38 L. J., C. P. 353), and duties imposed for other purposes also, e.g., of draiuage. rurrdt Suvigit- tion Co. V. Itohir.s, 10 M. & W. 693. See Holt V. Corporalioii of liuchdale, Ij. II., 10 Eq. 354 : 39 L. J., Ch. 701. An Act of Parliament empowering a corporation to remove obstructions in a navigable river, giving compensation to owners of the soil where the obstructions are situ- ate, docs not constitute them conserva- tors of the river. Exeter, Corporation of V. Earl of Devon, L. R., 10 Eq. 232. (e) Orr Ewiixj v. Colquhoun, 2 App. Cas. 839, 054. (/) Hall V. Herbert, 3 T. R. 253. ly) R. V. Severn ^ Wye Hail. Co., 2 B. & A. 648. (A) Hudson v. M'ltae, 4 B. & S. 585 ; 33 L. J., M. C. 05. Hargreaven v. Bid- dams, L. R., 10 Q. B. 453 ; 44 L. J., M. C. 178. (i) Iteg. V. Stimpson, 4 B. & S. 307 ; 32 L. J., M. C. 208. In some recent cases {Rare v. MilUr, 8 Q. B. D. 026 ; 61 L. J., M. C. 64 ; and I'earce v. .Scote/ier, 9 Q. B. U. 162), the true prin- ciple has been lost sight of. The right of the public to fish does not depend on whether the river is tidal or non-tidal, but on whether the soil i.s or is not the jiroperty of the crown. Where, as in Jieece v. Miller, the riparian proprie- tor claims under a grant from the crown, it follows that the soil of the river was in the crown, and it lies on the claimant to prove his title. Where, as in I'laree v. Seotc/ier, the public have always exercised the right, that is evi- dence that the soil of the river is in the crown. (k) Ante, p. 341. (/) Xeill V. Devonshire [Duke of), 8 App. Cas. 135. fj ■l ;l 654 INJURIES TO PUBLIC RIGHTS. [chap. X. 617 cannot pa?8 without opening the gate, this is a common nui- sance ; " for a man has no right to put such an .mpediment in tlie road where none before existed. But gates which have been in high- ways time out of mind are not any nuisance, because it may bo intended that they began by composition with the owner of the land when he consented to the way (in). Whenever one man wilfully interferes with the free right of passage of another along a public highway, there is an injury to a right, and an action for damages is maintainable ; and, whenever a private injury has been sustained from an unauthorized obstruc- tion in a public thoroughfare, the injured party is entitled to compensation in damages. If one person wilfully and intention- ally runs his carriage before another person's carriage in a public thoroughfare, stopping when he stops, and going ahead of him when he goes on, and crossing his path, so as to prevent him from having the free and uninterrupted use of the highway, and oblige him to pull up or slacken speed, for fear of a collision, the person so obstructing the public thoroughfare will be responsible in damages to the party whose free right of passage has been wilfully and unlawfully obstructed. There is, in such a case, an injury to a right, and substantial damages are recoverable. Where, therefore, the drivers of an omnibus company headed and tailed the omnibus of a private individual with the company's omnibuses, and obstructed the highway with their vehicles, so as to create a nuisance, and interrupt the free passage of the thoroughfare, it was held that the omnibus company were respon- sible in damages to the private omnibus proprietor, who had been wilfully delayed and impeded in the exercise of his right to pass along the public highway (»). And where a large agricultural roller was left on the highway it was held an unreasonable user, and the owner of the roller was held responsible for damage ensuing from a horse taking fright at the roller (o). If a man builds a house or a bridge, so as to obstruct a public thoroughfare, he cannot escape from liability by saying that it was the fault of the builder or contractor, in not constructing it in some different manner (/>). If the occupier of a house or building adjoining a highway directs certain repairs to be done to his house, and it becomes necessary to excavate the earth, and remove (m) Vin. Abr. Nuisance, C. James v. Hay ward, Cro. Car. 184 ; W. Jones, 221. («) Green v. London General Omnibus Co., 1 C. B., N. S. 290 ; 29 L. J., C. P. 13. (o) WUkins v. Bay, 12 Q. B. D. 110. (p) Ilole V. Sittingbouruc, S;c., Rail. Co., 6 H. & N. 500 ; 30 L. J., Ex. 81. Grail V. Pitllen, 5 B. & S. 970 ; 34 L. J., Q. B. 265. CHAP. X.] THE INJURY. G55 618 stone, timber, and materials from tlio premises, and the exca- vated earth and materials are placed in the high-road in front of the house, with the knowledge and sanction of tlio occupier of the house, the latter will bo responsible for the obstruction, although it was placed there by the servants or workmen of a builder or contractor. If, seeing the obstruction and the danger of it, and having control over everybody working upon his own land, and bringing materials out of his own house, he does nothing to pre- vent or abate the nuisance, if ho silently acquiesces in the conver- sion of the highway into a place of deposit for materials brought from his own premises, there will be evidence to go to a jury of the things having beuii placed in the highway by his authority (q). Ohstructiom in navigable rivers. — If an obstruction has been placed in a navigable river for the more convenient use and occupation of a Avharf, those Avho placed the obstruction in the river, and the occupiers of the wharf who continue it there for the use of the wharf, will be responsible for injuries caused by it to persons lawfully using the wharf who had no knowledge of the obstruction, or, it would seem, to any person navigating the river (;•). The owner of a ship sunk in a navigable river by accident, without his default oi misconduct, is not bound to re- move the nuisance, if the vessel is totally submerged, and he has no longer the possession of it ; but, if he has possession of the vessel, and exercises the dominion and control of an owner over it, he is bound to take all reasonable and proper care to pre- vent accidents to other vessels navigating the river, and must remove the obstruction with all reasonable diligence. This duty attaches to the ownership of the vessel for the time being, and will be transferred to a purchaser of the sunken vessel, who takes the wreck into his possession, and under his management and control (s). The principle above mentioned has been held to apply to the case of piles left in the bed of a river by a contractor, which were no obstruction when the works for which the piles were used were completed by the contractor and handed over to the Admiralty, but which subsequently became so by the soil around the piles being washed away {t). Nuisances to highicays. — Every occupier of a house adjoining a highway is responsible for injuries to passengers arising from [q) Burgess v. Grai/, 1 C. B. 591. Bush V. Steinman, 1 B. & P. 408. mis V. Sheffield Gas Co., 2 El. & Bl. 767; 23 L. J., Q. B. 42. (r) While V. Phillips, 16 C. B., N. S. 245 ; 33 L. J., C. P. 33. («) White V. Crisp, 10 Exch. 312. Where the harhoar master has under- taken to lighten the wreck under the 40 & 41 Vict. c. 16. 8. 4, the shipowner ia no longer liable. The Douglas, 7 P. D. 151; 51 L. J., P. D. &A. 53. (0 Bartlett v. Baker, 3 H. & C. 153 ; 34 L. J., Ex. 8. Uyams v. Webster, L. R , 2 Q. B. 264 ; 4 Q. B. 138 ; 36 L. J., Q. B. 166; 38 /*. 8. ' # 6.56 INJURIES TO puhlic uights. [chap. X. 619 things falling from the house into the street, unless he can show that the fall arose from storm or tempest, or some inevitable acci- dent («). He is bound also to secure his shutters, and swing- doors, and things placed against his house, so that they cannot be readily thrown down on passengers by idle or mischievous persons. Thus, where the cellar-door of a tradesman was opened and thrown back against his house, and some little boys playing with the door, threw it over upon the plaintiff and broke his leg, it was held that the tradesman was responsible for the injury, as he had provided no fastening to keep the door back. " A tradesman under such circumstances is not bound to adopt the strictest means for preventing accidents ; but lie is bound to use reasonable precaution, such as might be expected from a careful man" (x). But, if the door is a door of great weight, and so thrown back that it could not be pushed forward into the street without the exer- cise of great force and strength, the remedy would be against the wilful wrong-doer and not against the tradesman, who reasonably supposed a fastening to be, under such circumstances, unnecessary. "Whether proper care has been taken to prevent the door from falling forward is a question of fact. The occupier of a house, which is in a ruinous state and dan- gerous to the neighbourhood, is responsible to the public and to the owners and occupiers of the adjoining property who may sustain damage from the want of proper and timely repair ; and it is no answer for him to say that he is a mere tenant-at-will or upon sufferance, or has only a temporary or precarious interest in the premises, and is under no obligation to maintain and repair them ; for, if lie chooses to take the benefit of the occupation of premises, he must take them with the accompanying burthen of preventing them from becoming a source of danger to others. Thus, where the defendant was indicted for not repairing a ruinous house abutting upon a highway, and the indictment charged that the house was likely to fall down, and that the de- fend? t occupied it, and ought to repair it, and the jury found (h) Jlynie V. Jtondit; 2 H. & C. 272 ; 33 L. J., Ex. 13. See Scott v. Lundon Luck Co., 3 H. & C. 598 ; 34 L. J., Ex. 220. So, by the civil law, every occu- pier of a house, whether he was the pro- prietor of it or a lessee, was held liable for damage caused by anything thrown out of the house, or the premises belong- ing to it, into a street or public thorough- fare, or any other place ; and the occu- pier was held responsible for the damage, if the thing was done by any of his family or domestics in his absence or without his Imowledge ; but, if tiles fell from the roof from the effect of a storm, and the roof was in good repair, the occupier was not answerable for the accident. If the roof was out of repair, then the person boiind to keep it in repair was guilty of a breach of duty, and was answerable for the damage to the person injured. Domat, Droit Civ. liv. 2, tit. 8, s. 1. Pandect, lib. 9, tit. 3. Instit. lib. 4, tit. 5,8. 1. (a) Tindal, C. J., Daniels v. rotter, 4 C. & P. 262. Proctor v. Harris, ib. 337. CHAP. X.] THE INJURY. 057 620 that the house was ruinous and likely to fall, and that the defendant occupied it, but was only tenant-at-will, the court held that he was nevertheless answerable to the public for its dangerous condition (//). But the liability of a mere tenant-at-will, in this respect, ought in reason to be confined to cases where he knew or ought to have known that the house was in a dangerous state, and chose to become and continue the occupier of it, with knowledge of its dangerous condition. All that the occupier is bound to do, in any case, is to shore up the building so as to prevent it from falling, lie is not bound, as between himself and the public or the neighbours, to put it into a state of repair. If a mason contracts to erect a bridge or other work in a public road, Avhich he constructs, 'jut not according to the contract, and the defects of which are a nuisance to the highway, ho is respon- sible for it to a third person who is injured by the defective con- struction, and cannot bo saved from the consequences of his illegal act ill committing a nuisance on the highway by showing that he was also guilty of a breach of contract, and responsible for that to the person with whom he had contracted (a). If a person maintains a lamp projecting over a highway for his own purposes, it is his duty to maintain it so as not to be dangerous to the passengers ; and, if it causes injury owing to want of repair, it is no answer on his part that he had employed a competent person to repair it (a). AVhere in the district of a local board of health a grid or grating has been put down in a highway to drain the sur- face Avater off the road into a sewer below, the local board in whom the sewers are vested by the Public Health Act are responsible for damage sustained by persons using the highway from the grid being in a dangerous state (i). Opening a highway, for the pur- pose of laying down gas pipes, is not necessarily a public nuisance (c). By the General Highway Act, 5 & 6 Will. 4, o. 50, s. 70 (d), {y) 2ieKf»" l\ ' ! J rjfj H Iff 658 INJURIES TO PUBLIC RIGHTS. [chap. X. 621 it is enacted, that it shall not be lawful for any person to sink any pit or shaft, or to erect or cause to be erected any steam-engine, gin, or other like machine, or any machinery attached thereto, within the distance of twenty-five yards, nor any windmill within fifty yards, from any part of any carriage-way or cart- way (c), unless such pit or shaft, or steam-engine, gin, or other like engine or machinery, shall be within some house or other building, or behind some wall or fence sufficient to conceal or screen tho same from the said carriage-way or cart-Avay, so that the same may not be dangerous to passengers, horses, or cattle (/) ; also, that it shall not be lawful for any person to make or cause to be made any fire for calcining or burning of ironstone, limestone, bricks, or clay, or the making of coke, within fifteen yards from any part of the said carriage-way or cart-way, unless the same shall be within some house or other building, or behind some wall or fence sufficient to screen the same from such carriage-way or cart-way. As persons are prohibited from sinking pits or shafts within the distance of twenty-five yards from any part of a carriage-way or cart-way, being a highway, it follows that any person who has sustained injury from the doing of the prohibited act is entitled to an action to recover compensation in damages from the wrong-doer. If the occupier negligently leaves a vault or area unfenced and un- guarded, so close to a street or public highway as to be dangerous to passengers, it is no answer to a claim for damages by persons who have fallen into the vault whilst endeavouring to keep to the high- road, to show that there was a narrow intervening strip of the defendant's land extending between the highway and the area, on which the plaintiff was trespassing at tho time he fell into the pit (g). But, wherever a person designedly deviates from the highway and commits a trespass, in order to make a short cut across the defendant's land, and in so doing falls into an open, unguarded vault or cellar, the defendant is not responsible for the injury (h). Q. B. 214 ; 41 L. J., M. C. 105. But permitting or suffering water from the eaves to fall on the highway (Croasdill v. iRadcUffe, 5 L. T. 834), or trees to over- hang [Walker v. Ilorne, 1 Q. B. D. 4 ; 45 L. J., M. C. 34), is not. (As to trees overhanging in the south-western coun- ties, see 48 Vict. c. 13.) Lighting a fire within fifty feet of the centre is a nuisance. Stinson v. Browning, L. R., 1 C. P. 321 ; 35 L. J., M. C. 146. See also 27 & 28 Vict. c. 101, ss. 25, 51. («) This is extended to turnpike roads by the 27 & 28 Vict. c. 75. Steam- ploughing machines are excepted by the 28 & 29 Vict. 0. 83, s. 6, provided" cer- tain precautions are taken whilst they are in use. See also the 41 & 42 Vict. c. 77. (/) As to nuisances from steam- threshing machines, see Smith v. Stokes, 4 B. & S. 84 ; 32 L. J., M. C. 199. {g) Barnes v. Ward, 9 C. B. 392 ; 19 L. J., C. P. 195. See Reg. v. Lant, L. & C. 567 ; 34 L. J., M. 0. 119. Hadley V. Taylor, L. R., 1 C. P. 53. (A) Hardcastle v. South York, ^c, Rail. Co., 4 H. & N. 74 ; 28 L. J., Ex. 139. Stone v. Jackson, 16 0. B. 199. Blyth v. Topham, Oro. Jac. 159 ; 1 Roll. Abr. 88. The negligent quarrying of stone near a highway is an indictable offence at common law. Reg. v. Mutters, L. & 0. 491 ; 34 L. J., M. C. 22. :!Jliiii ii|W n ■ "" «"•■«■,■ ■ i i CHAP. X.] THE INJURY. m) 622 Wliere the defendants were o^vnor8 of waste land which was bounded by two highways, and the defendants worked a quarry in the waste, and the plaintiff, not knowing of the quarry, passed over the waste in the dark, and fell into the quarry and broke his leg, and then brought an action for damages, it was held that the action could not be maintained, as there was no legal obligation on the defendant to fence the quarry for the benefit of the plaintiff, who was a more trespasser upon the land (/). But, if the hole is so near a highway that a person lawfully using it may, if he slips on the highway, fall into the hole, the occupier will be liable for not fencing the hole (/•), even though the obligation to fence the land from the highway it adjoins may be on some other person (/). Where the occupier of a dangerous area adjoining a highway sot up as a defence that the premises had been exactly in the same condition as far back as could be remembered, and r.?any years before he took possession of them (m), Lord Ellenborough held that, however long the premises might have been in a dangerous state, the defendant, as soon as he took possession of them, was bound to guard against the danger to which the public had been before exposed ; that the area belonged to the house, and the law cast upon the occupier the duty of rendering it secure ; and that he was liable for the consequences of having neglected to do so, in the same manner as if he himself had originated the nuisance («). No question was raised in this case, however, as to whether the highway existed before the area was made : for, if the area had been made, and the road afterwords dedicated to the public with the unfenced area beside it, the public would take the right of way subject to the danger and inconvenience of the unfenced area (o). The owner of the land on which a nuisance to a public way exists will be responsible. If he demises the land with the nuisance upon it(;j). This has been held to be the case when the thing demised consisted of a wall erected so as to impede the access to a public market {q), or a dangerous excavation made by order of the landlord, and left unguarded and unfenced by the side of a public thoroughfare (/•). So, also, the landlord is responsible to (•) Houmell v. Smyth, 7 C B., N. S. 731 ; 29 L. J., C. P. 203. Bi»ks v. South York % River Bun Co., 3 B. & S. 244 ; 32 L. J., Q. B. 26. (/.) Hadleij v. Taylor, L. R., 1 C. P. 63. As to who ia an occupier, see S. C. (/) Wettorv. Dunk, 4 F. & F. 298. (m) See Barnes v. Ward, 9 0. B. 420 ; 19 L. J., C. P. 200. Jarvis v. Bean, 11 Moore, 354. U («) Coiipland v. Ilnrdingham, 3 Campb. 398. Bishop v. Trustees of Bedford Charity, 1 El. & El. 697 ; 29 L. J., Q. B. 53. Piekard v. Smith, 10 C. B., N. S. 470. GulUi V. Smith, 12 Q. P. D. 121 ; 53 L. J., M. C. 35. (o) Blackburn, J., Fisher v. Frowse, 2 B. & S. 770 ; 31 L. J., Q. B. 219, (p) Ante, p. 375. Iq) B. V. 2'edley, 1 Ad. & E. 822. (r) Leslie v. Founds, 4 Taunt. 649. v2 m tr^j 660 INJURIES TO PUBLIC '^milTR. [CIIAP. X. '■■I 1 J P-'i''! 623 the pul)Ho, if ho domisos houses which are in a ruinous state and dangerous to the neighbourhood, either from original faulty construction, or from want of proper and timely repair («) ; unless at the time of the demise he did not know that the house was in a dangerous state, and was not to blame for not knowing it, and the tenant has covenanted to repair (t). But, if the houses or buildings are in good repair and condition at the time of the demise, and subsequently become ruinous and dangerous to the neighbourhood, the landlord is not responsible for the nuisance, unless he has taken upon himself the burthen of repairing and maintaining the promises during the existence of the lease (n), or has renewed the lease after the houses had become ruinoub and in danger of falling ; for an owner of a house is not, merely as such, liable for its want of repair (x) . Nuisances arisimj from uvijlect of statittorij duties — Ne(jfeet of railwai/ companies to erect and maintain bridges over hiyhiiaijs. — By the 8 & 9 Vict. c. 20, s. 46, it is enacted that, if the line of railway cross any tumpiko-road or public highway, then (except where otherwise provided by the special Act), either such road shall be carried over the railway, or the railway shall be carried over such road, by means of a bridge, such bridge to bo maintained " with the immediate approaches" at the expense of the company : but it is provided that, with the consent of two or more justices, in petty sessions, it shall be lawful for the company to carry the rail- way across any highway other than a public carriage-road on the level {y). Every railway company in the actual possession and occupation of its line of railway is responsible for the maintenance and preservation in a good state of repair of all its bridges, viaducts, and embankments ; so that, if any injuries are sustained by per- sons travelling along a highway under a bridge or viaduct, from the ruinous or insecure state of such bridge or viaduct, th.-^ rail- way company will be responsible for the injury, whether it arose I!; (») Todd V. Flight, 9 C. B., N. S. 377 ; 30 L. J., 0. P. 21. R. v. Pedley, 1 Ad. & E. 822. {<) Gwinnell v. Earner, L. R., 10 C. P. 668. (») Pai/tie V. Hoffers, 2 H. Bl. 349. Leslie V. Pounds, 4 Taunt. 648. Bishop ▼. Trustees of Bedford Charity, 1 El. & El. 697 ; 29 L. J., Q. B. 53. Robbins V. Jones, 16 C. B., N. S. 221 ; 33 L. J., C. P. 1. (x) Chaimtler v. Robinson, 4 Exch. 163. (y) Under this Bection the railway- company are bound to keep in repair the inuikodiatc approaches to the road, -where the road is carried over the railway {Leek or Jjeech v. North Staffordshire Rail. Co., 5 H. & N. 160 ; 29 L. J., M. C. 150), but not where it is carried under it (London and North Western Rail. Co. v. Skerton, 5 B. & S. 559 ; 33 L. J., M. C. 158). The railway company are also liable, under sect. 68, to make good the damage done to any road during the construction of the works, by carts, &c., passing along it, although such carts may not be theirs, but may belong to the contractor who has engaged to make the railway {West Riding Rail. Co. v. Wakefield Board of Health, 6 B. & S. 478 ; 33 L. J., M. C. 174). CHAP. X.] THE IN.JUUY. 001 624 from their own neglect in not providing ncodful reparations, or from original faulty con»truction of tho fabric by their ongineor or contractor (s). Negligent umnagetnent of rai/wag-gates placed across public car- riagc-roadn. — When a railway crosses any turnpike road or public oarringe-road on a level, tho company must, unless othorwiso authorized by their special Act, erect and at all times maintain good and sufRcient gates across such road, on each side of tho railway where tho same shall communicate therewith, and employ proper persons to open and shut such gates, and keep them con- stantly closed across the road on both sides of tho railway, except during tho time Avhon horses, cattle, carts, or carriages passing along tho road shall have to cross tho railway ; and the gates must be of such dimensions and so constructed as, when closed, to fence in the railway, and prevent cattle or horses passing along the road from entering upon the railway (sect. 47). This section does not authorize a person passing along tho highway to open the gates himself, although aftc waiting a reasonable time no servant of the company appears to do so ; and, if owing to his opening the gates he sustains an injury, tho company are not responsible («). Wherever this section of tho statute, or one of similar import, is in force, it imposes upon tho railway company governed by it the duty of closing the gates across public carriage-roads carefully against everything passing lawfully or unlawfully along the high- road. Where, therefore, tho plaintiff's horses strayed from his field into the high-road, and passed from thence through an open gate, and got upon a railway, and were killed by a passing train, it was held that tho railway company were responsible for the loss, as the obligation to keep the gates closed imposed upon them the duty of closing them carefully against everything passing lawfully or unlawfully along the high-road (A). Where one of the public carriage gates at a level crossing is also tho only exit out of a private yard across the railway, and the driver of a cart coming out of tho private yard asks the railway gate keeper if he may cross, and is answered in the affirmative, the company ■vv^ill be responsible if the cart is run into by a train (c). Where a railway crosses a turnpike-road on a level adjoining to a station, the trains must slacken their speed before arriving at the turnpike-road, and cannot, unless there is some special pro- vision to the contrary in the particular Act under which the com- I (2) Grote V. Chester and Holyhead Rail. Co., 2 Exch. 251. See 2 Wood on Rail- way Law, sections 270, 271, 272. (a) Wyatt v. Great Western Rail. Co., 6 B. & S. 709 ; 34 L. J., Q. B. 204 {diss. Blackburn, J.). (t) Fawcett v. York and North Midland Rail. Co., 16 Q. B. 618. (c) Lunt V. London and North Western Rail. Co., L. R., 1 Q. B. 277 ; 35 L. J., Q. B. 105. G62 INJURIES TO PUBLIC KIGHTS. [CHA1». X. Mm T'i m, ; I i' p*' 11^ 1^^ I J l^i ■^iil;,^ . 1 ;; t,l-: BHK.tjilaiBiiai I^B' ' 1 |i «K >-!;i« M 625 pany is Incorporated, cross the same at any greater rate of epeod than four miles an hour (d). Where a railway company construct their line across a high- way on a level under tho sanction of an Act of Parliament, it is their duty to keep the crossing in a proper state for the passage of carriages across tho rails ; and, if a carriage is damaged in consequence of tho raib being too high above the surface of the roadAvay, the company ai-e liable (e). By the 8 & 9 Vict. c. 20, s. 61, when a railway crosses a public highway, other than a public carriage-way, on tho level, the company are, if the way is a bridle- way, to erect and maintain gates, and, if a footway, gates or stiles. Where, therefore, the plaintifE, a child of four years and a half, having been sent on an errand, was shortly afterwards found lying on a level crossing, a foot having been cut off by a passing train, it was held that there was evidence to go to the jury of the accident having been caused by the negligence of the railway company, they having omitted to erect any gate or stile (/) Whei. parliament authorizes a railway company to construct a railway and work it, it is implied that the company ai'e to work it in a reasonably proper manner, in the usual way in which railways are worked ; and in crossing a footway on a level the company are bound, as to the mode of working their railway, as to the rate of upeed, and signalling or whistling, or other ordinary precautions in the working of a railway, to do everything which is reasonably necessary to secure the i.afety of persons who have to cross the railway by means of the footway ('o visions, when applied to any such road as afore- paid, if the road is within the jurisdic- tion of a highway board, such board shall be deemed to be the trustees or commissioners thereof, and in other cases the surveyor or othei- local authority having the care of the road shall be deemed to bo such trustees or commis- sioners. (e) Oliver v. Xorth Eastern Rail. Co., L. R., 9 Q. B. 409 ; 43 L. J., Q. B. 198. See 2 Wood on Bailway Law, pp. 971—983. (/) Williams v. Great Western Rail. Co., L. E., 9 Ex. 157 ; 43 L. J., Ex. 105. {g) Per Mellor, J., Cliff v. Midland Rail. Co., L. R., 5 Q. B. 261. (A) James v. Oreat Western Rail. Co., L. R., 2 0. P. 634 n. ; 36 L. J., C. P. 265 n. high- CHAP. X.] THE INJURY. 663 626 evidence of negligence in case the foot-passenger is injured in crossing the line (i). Where there are circumstances making a particular crossing exceptionally dangerous, the company are bound to use extra precautions (A-). Prima facie, however, a foot passenger crossing a railway on the level, is bomid to look to his own safety {I) ; and there is no general duty on railway companies to place watchmen at public footways or accommodation roads, crossing the railway on a level, to warn persons using the footway or the road (m). Where, therefore, the view of the line from one of the gates was obstructed by a pier, but from the level of the line there was a clear view of 300 yards each way, and a person, crossing the line immediately after a train had passed, was killed by a train coming the other way, it was held that there was no evidence of negligence against the railway company (n) . A railway made without statutory authority is not subject to the regulations as to gates and persons in charge at level crossings imposed by these statutes ; nor are the proprietors bound at common law to erect such gates (o). Canal companies also are bound to take all reasonable and proper precautions for the protection of the public, where the canal intersects public thoroughfares. In such cases there is a common- law obligation on the company to make and maintain sufficient bridges with proper rails and lights, such as all persons passing along the highway can safely use. When the high-road tra- verses the canal by a swing-bridge, and the bridge is opened for the passage of boats and vessels, the company are bound to provide sufficient lights, or persons to watch and warn passengers, or to have some apparatus attached to the bridge itself, to protect passengers when the bridge is open, and prevent them from falling into the water ( w). But, if the canal has been demised tc a lessee, who is in the actual possession and occupation of it, and who receives the toll for the use of it, it is not then the daty of the proprietors of the canal to maintain and repair the canal, imless the particular statute unde;* which they are incorporated expresbly (i) Staple;/ v. London, Brighton ^• South Coast Rail. Co., L. E., 1 Ex. 21 ; 35 L. J., Ex. 7. Wanless v. North Eastern Rail. Co., L. R., 6 Q. B. 481 ; 7H. L. 12; 43 L. J., Q. B. 185. {k) Bilbee v. London ralty on the subject. f lw ' i U- ) :■! iiili: pi:!''; 1^: GG8 INJUKIES TO PUBLIC UIGllTS. [CIIAP. X. 631 to the contrary, be deemed to have been caused by his wrong- ful act, neglect, or default («). The person in charge under this section is the mate or master, as the case may be ; and the mere fact of there being a pilot oompulsorily in charge of the ship, is not sufficient to exempt the owners from responsibility (x). A Queen's officer, statidued on board ship to do his duty there, together with others equally appointed, and stationed there by the same authority to do their several duties, is not responsible in damages for injuries occasioned by the negligence of his subordi- nate officers in carrying into effect the orders given by him in discharge of his public duty. Therefore, the captain of a sloop- of-war is not answerable for damage done by her in running down another vessel during the watch of the lieutenant, who was upon the deck, and had the actual direction and management of the steering and navigating the sloop at the time (//). The mere fact of a ship being chartered and employed by the government as an armed vessel, and having a commander of the navy on board, under whose orders the vessel is navigated, will not exempt the shipowners from responsibility for injuries occa- sioned by the negligence of a master and crew shipped on board and paid by them (s). But no action is maintainable against the owners of a transport in the employ of Government for damage done in the careful and proper execution of the orders of a Government officer, under whose command the vessel was at the time of the accident, unless the order was only meant to apply to a particular state of circumstances, and left a certain discretion in the master of the transport, and the circumstances having changed, the master carelessly and imprudently failed to direct his conduct in accordance with the altered circumstances and the requirements of good seamanship (a). If a shipowner unnecessarily delays mooring his vessel until night comes on, and darkness prevents him from distinguishing objects, he will be responsible in damages if he comes into collision with any other vessel, and if the collision could have been avoided if it had been daytime (b). If a ship, throiigh the negligent navigation of the master, runs aground, and is then driven on to a sea wall by the force of the wind or tide, the shipowner will be responsible for the damage done to the wall. In the absence of negligence, however, the shipowner has a reasonable time for the recovery of valuable t (m) Sect. 16. (x) The Queen, L. R., 2 A. & E. 354 ; 38 L. J., Adm. 39. (y) Nicholson v. Mouncey, 15 East, 384. (2) Fhlcher v. Biaddick, 2 B. & P. N. R. 182. Best, J., Scott v. Scott, 2 Stark. 438. (a) l^odffkinson v. Fernie, 2 C. B., N. S. 415 ; 26 L. J., C. P. 219. (4) The Egyptian, 1 Moo. P. C, N. S. 373. CITAP. "•] THE INJURY. G69 632 property contained in the sliip, and, ns between hira and the proprietor of the wall, is not bound to break up the ship immediately (c) . A person navigating the high seas will be liable for injury caused by his negligence in navigation to a telegraph cable lying at the bottom of the sea (d). It is the duty of those who launch a vessel to do so with the utmost precaution, and to give such a notice as is reasonable and sufficient to prevent injury happening from that event (c). What is reasonable notice depends on local circumstances, the breadth of the river, the number of vessels passing, and other circumstances of that kind. It must not be a mere general notice of a launch on a particular day ; the notice must so specify the time of the launch, that vessels navigating up and down the river may not be damaged or run in danger (/) . Where a newly-built vessel, not then regis- tered, on being launched ran into and damaged a passing ship, it was held that she was not a recognized British ship when the collision occurred, and that her owner, a natural-born British subject, was not entitled to have his liability limited (y). Collmom at sen — Inevitable accident. — A shipowner is not liable for a collision arising from an inevitable accident, that is, an accident which could not have been prevented by the exercise of ordinary care, caution, and maritime skill (//). Where the master of a ship takes all such precautions as a man of ordinary prudence and skill, exercising reasonable foresight, would use to avert danger, his owners are not to be held responsible becaiise he may have omitted some possible precaution which the event suggests he might have resorted to (/), And where one ship has by wrong manoeuvres placed another ship in a position of extreme danger, that other ship will not be held to blame if she has done something wrong and has not been manoeuvred with perfect skill and presence of mind {k). Collisions at sea — Compulsory jnlotage. — Sect. 3b S of the Mer- chant Shipping Act, 17 & 18 Vict. c. 104, protects the owners or (c) The Bailiffs of Romncy Marsh v. Triniti/ House, L. R., 5 Ex. 204 ; 7 ib. 247; 41 L. J., Ex. 106. {(l) Submarine Telegraph Co. v. Dick- son, 15 C. B., N. S. 759 ; 33 L. J., C. P. 139. (e) T/ie Glengarry, L. R., 3 P. D. 235 n. ; 43 L. J., Adm. 37. The George Jioper, 8 P. D. 119 ; 52 L. J., P. D. & A. 69. See The Cachapool, 7 P. D. 217. (/) The Blenheim, 2 Wm. Rob. 421 ; 4 N. of C. 393. iff) The Andalusian, L. R., 3 P. D. 182 ; 47 L. J., Adm. 65. {/») The Marpesia, L. R. 4 P. C. 212. The Buckhurst, 6 P. D. 153 ; 51 L. J., P. D. & A. 10. Where in a collision the defence of inevitable accident is raised, the onus of proof lies, in the first instance, on those who bring the suit and seek to be iudemniiicd for damage sustained, and docs nut attach to the vessel proceeded against, until a primd facie case of negligence and want of due seamanship is shown. The Marpesia, supra. (t) Dotcard v. Lindsay, L. R., 5 P. C. 338. The Swansea and the Condor, 4 P. D. 116; 48 L. J., P. D. & A. 33. (k) The Bywell Castle, 4 P. D. 219. 070 INJURIES TO PUBLIC RIGHTS. [CHAP. X. ' i I : i ' I m n' • 633 masters of n ship from liability for loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of Bucli ship within any district where the employment of the pilot is made compulsory by law (/). If, therefore, a ship, compulsorily in charge of a pilot, is being towed by a steam-tug, and by the negli- gence of the steam-tug is towed across and brought into collision with another vessel, the owner of the former vessel id not respon- sible, if by giving proper orders the pilot could have avoided the collision, unless there was negligence on his part in the selection of the tug in the first instance, by which the collision was wholly or in part occasioned (m). The owner of a vessel under com- pulsory pilotage is entitled to recover a moiety of the damage, without any deduction on account of damage sustained by another vessel, in a collision in which both vessels were in fault («)• This section, however, will not absolve the owner from responsibility for the neglect of the master to keep a good look-out, if such neglect conduces to the collision. It is the duty of the pilot to attend to the navigation, and of the master to keep a good look- out (o). Although the pilot has charge of the ship, the owners are most clearly responsible to third persons for the sufficiency of the ship and her equipments, the competency of the master and crew, and their obedience to the orders of the pilot in everything that concerns his duty ; and under ordinary circumstances his commands are to be implicitly obeyed (^)). To him belongs the sole direction of the vessel in those respects where his local know- ledge is presumably required, such as the direction, the course, and the manoeuvres of the ship when sailing, the selection of the (0 The Schicalbe, 14 Moore, P. C. 241. T/ie Annapolis, 1 Lush. 295. T/ie recrksi, 13 Moo. P. C. 444 ; 30 L. J., Adm. 89. See Hossack v. Gray, 6 B. & S. 598 ; 34 L. J., M. C. 209, as to when an English or Scotch pilot is necessary. Tijne Improvement Commisaionem v. General Steam Navigation Co., L. R., 2 Q. B. 65 ; 36 L. J., Q. B. 22, as to the port of Newcastle. The Eanna (L. R., 1 A. & E. 283; 36 L. J., Adm. 1), as to ships (not British) coming up the North Channel, and as to who is a passenger within s. 354 of the Merchant Shipping Act. The Vesta, 7 P. D. 240 ; 51 L. J., P. D. & A. 26. The Lion, L. R., 2 A. & E. 102; 2 P. C. 525; 38 L. J., Adm. 61. The Maria, L. R., 1 A. & E. 358. The Righorgs Minde, 8 P. D. 133 ; 52 L. J., P. ID. & A. 75, as to the port of Hull. Hodrigues v. Melhnish, 10 Exch. 110, as to the port of Liver- pool. General Steam Navigation Co. v. British and Colonial Steam Navigation Co., L. R., 3 Ex. 330; 4 Ex. 238; 38 L. J., Ex. 97 ; The Hankow, 4 P. D. 197 ; 48 L. J., P. D. & A. 20, as to the limits of the port of London. Wood v. Smith, L. R., 5 P. C. 451 ; 43 L. J., Adm. 11 ; The Princeton, 3 P. D. 90; 47 L. J., P. D. & A. 33 ; The Cachapool, 7 P. D. 217, as to compulsory pilotage in the Mersey ; and the Johann Srcrdnip, 11 P. D. 49 ; 55 L. J., P. D. & A. 28, in the Tyno. This section protects the owners or masters from responsibility for injuries done within the limits of the Thames Conservancy Act, 1857. Thames Conservators v. Hall, L. R., 3 C. P. 415. (»«) Marshall v. Moran, L. R., 3 P. C. 205 ; but see The Sinquasi, 5 P. D. 241 ; 50L. J.,P. D. 5. («) 7Vi«2rffrs, Jlolle V. JFhi/le, L. K., 3 Q. B. 286 ; 37 L. J., Q. B. 10'). Leconfleld v. ^onudalc, L. R., 5 C. P. 657 ; 39 L. J., C. P. 30.'). The 2 Hen. 6, c. 16 (now re- pealed), prohibits, not only the use of nets which are permanently fixed day and night, but also those which are fixed for intervals of time only, if they obstruct the navigation of the river and tho passage of tho fish, llolford v. George, L. R., 3 Q. B. 630 ; 37 L. J., Q. B. 185. (p) Mayor of Colchester v. Brooke, 7 Q. B. 377. {q) Abior V. French, 2 Show. 28, Steel V. Prickett, 2 Stark. 463. ()■) Arnold v. Uolbruok, L. R., 8 Q. B. 96; 42 L. J., Q. B. 40. Buncomb's ease, Cro. Car. 366. See ante, p. 608. 'III Mil 675 638 CHAPTER XI. DUTIia OF I'UHLIC OFFICKK'H. Diiiics of pithlic ofticen. — Tho duties of piiLUo officers nro bo numerous and varied, tliat it would be imposHiblo to give oven an outline of them here. It may be nsofid, however, io treat shortly of tho peculiar remedy by mandamus for breach of duty by public officers. Public officfi'H — liemcdy htj mamhmm. — Tho prerogative writ of mandamus is a writ issuing in tho Queen's name from tho Queen's Bench Division of the High Court {n), directed to some chartered, corporate, or public body, or official or other person, comranndiiig tho performance of some public act or duty therein specified, in tho performance of which the party claiming the writ is interested, or by the non-performance of which he is aggrieved or injured {It). It was termed a prerogative writ, because the power to award it rested with the justices of tho court of Queen's Bench, in which court the sovereign was supposed to be personally present (c) . Through the medium of this writ, the court exercises control over all public officers, corporations, chartered companies, ond persons intnisted with extensive powers for public purposes, and enforces the exercise of such powers within reasonable limits, more especially where there is no other efficient or convenient remedy {(/). The issue of the writ is in the discretion of the court, and will not be ordered, if the erfect of it will be to enable some persons to avoid the performance of tome duty which they ought in equity to perform (c). A mandamus may be obtained whenever a public duty, in the fulfilment of which the plaintiff is interested, has been reglected, whether the plaintiff has sustained damage or not (/). Mandamus — In what cases granted. — Whenever the law requires a thing to be done, and the pubUo at large are interested in the (rt) See Glotaop v. Heston Local Board, 12 Oh. D. 122, and Order LIII. rule 5. (A) Reg. v. Chichester {Bishop of), 2 El. &E1. 209; 29L.J., Q. B. 23. Ex parte Brxggs. 1 El. & El. 881 ; 28 L. J., Q. B. 272. {c) Com. Dig. Mandaxus, A. XX 2 {d) Ld. Denman, C. J., Reg. v. Fastern Counties Rail. Co., 10 Ad. & E. 631. (e) Reg. v. Garland, L. R., 5 Q. B. 269 ; 39 L. J., Q. B. 86. {/) Fotherbyv. Metropolitan Rail. Co., L. B., 2 C. P. 188 ; 36 L. J., C. P. 88. ")'i i ' ^ \ til sii fi76 DUTIES OF PUBLIC OFFICERS. [CHAP. XI. 639 doing of it, a mandamus will go to order it to be done by the person upon whom the obligation of doing it is imposed. If he is to act according to his discretion, and he will not act or even con- sider the matter, the court may compel him to put himself in motion to do the thing, though it cannot control his discretion {(j). Permissive words, authorizing a thing to be done, are often held to be directory and compulsory, when the power or authority has been given in order that it ma;, be exercised for the public benefit, and the public interests manifestly require the authority to be acted upon (//). Thi;s, where the charter of incorporation of an ancient town, conferring various municipal privileges or. the town, provided " that the mayor and jurats maij, for the future, here- after have and hold, at i have power to hold, a court of record, to hear and determine all pleas, actions, complaints, &c.," it was held that the words were compulsory, and that they were bound to hold the court for the benefit of the inhabitants (/). So a mandamus ■will go to the mayor and assessors of a borough, com- manding them to hold a court to revise the list of burgesses {/,•). But permissive words will receive their natural meaning, and will not be made ob)ijatory, unless it plainly appears from the general context of the instrument in which they are found that they were intended to be obligatory, or unless it is shown that the public interests manifestly require such a construction to be put upon them. Railv/ay Acts, incorporating railway companies, and authorizing the construction of a railway, are, in general, merely permissive. They confer extensive powers for the compulsory purchase of land, and the construe' 'on of works for the benefit of the public ; but it is, in general, discretionary with the companies whether they will exercise the whole or a portion of thcoe powers, or refrain altogether from using them (l). When the words of a statute or charter axo imperative, and command the thing to be done, it is, nevertheless, a good excuse to show that circumstances have arisen iendering the exercise of the statutory power and com- mand impracticable {m) ; or, in cases of private Acts of Parlia- ment, not imposing a duty relating to the public interest, that a previous agreement had been made by the person applying for the (g) Best, J., JJ. V. Mrlh Riding, ^c. Justices, 2 B. & 0. 291. iJ. v. Kent Justices, 14 East, 396. H. v. Cumberland Justices, 1 J'.. & S. 194. (A) C^m. Dig. Paeliament, R. 22. (i) R. V. Mayor of Hastings, 5 B. & Aid. 632, n. ; 1 D. ic R. 148. R. v. Have- rinq Atte Botvn; 6 B. & Aid. 691. R. V. 'Wells {Mayo, of), 4 Dowl. P. C. 562. (/t) Reg. V. Manor, %c. of Monmouth, L. R., 5 Q. B. 251 ; 39 L. J., Q. B. 77. (/) York and North Midland Rail. Co. V. The Queen, 1 El. & Bl. 861 ; 22 L. J., Q. B. 225. Great Western Rail. Co. v. The Queen, 1 El. & Bl. 174. Erie, J., Reg. V. North Midland Rail. Co.. 1 El. & Bl. 203. R. V. Birmingham Canal Navigation, 2 W. Bl. 708. (w) Reg. V. London ^ North Western Rail. Co., 16 Q. B. 884. Jieg. v. Amber- gate, ^c. Rail. Co., 1 El. & Bl. 381 ; 22 L. J., Q. B. 191. CHAP. XI. )ne by the If he is even con- kimself in ;retion(//). en held to lority has lie benefit, rity to be ion of an the town, ture, here- record, to I,," it was ere bound /). So a lugh, com- 33es(A-). aning, and from the 'ound that n that the to be put anies, and il, merely ompulsory benefit of companies ^e powers, i^ords of a ling to be (umstances and com- of Parlia- est, that a ng for the nd Rail. Co. il; 22 L. J., Rail. Co. V. 4. Erie, J., il. Co.. 1 El. ighatn Canal orth Western g. V. Amber- Bl. 381 ; 22 -CHAP. XI.] REMEDY BY MANDAMUS. G77 640 performance of the duty, not to exact its performance («). Where the alleged obligation is founded on an Act of Parliament, the obligation is at an end, if the statutory power has expired (o). With reference to the inferential repeal of a previous statute by a subsequent one, the principle is that a general Act is not to be ccT^strued to repeal a previous particular Act, unless there is some express reference to the previous legislation on the subject, or the two Acts are necessarily inconsistent {p). Mandamiia — Wliere there is another remedy. — It is no answer *o an application for a mandamus to enforce the performance of a public duty, to show that the party claiming tlie writ has another remedy, unless it is also shown that the other remedy would be more suitable and effectual than the proceeding by mandamus {q). Where there it, another remedy equally convenient, beneficial, and effectual, a mandamus will not be granted. " This is not a rule of law, but a rule regulating the discretion of the court in granting writs of mandamus" (;•). ThuSj where the duty sought to be enforced is the payment of a sum of money, and an action of debt is maintainable for the money, and affords as convenient and effectual a remedy as a writ of mandamus, the court will leave the party to thj ordinary remedy by action, and will refuse a man- damus (.s) ; and the writ is never granted as a remedy for a mere private wrong, whore there is a clear cause of action and compen- sation in damages would be an effectual or appropriate remedy {t). But it is no answer to an application for c mandamus to show that the defendant may be proceeded against 'oy indictment («), unless it is also shown that an indictment would be a more effectual and suitable course of proceeding. A party applying for a mandamus must make out a legal right and a legal obligation {x). A legal obligation, which is the proper foundation for a mandamus, can only arise from common law, from statute, or from contract. An officer in the Queen's army, therefore, has no claim for a mandamus against the Paymaster of the Forces, to compel the payment of pay improperly withheld from him, as the obligation, though binding in equity and con- (h) Savin v. Hoijlakc Rail. Co., L. R., . 1 Ex. 9 ; 35 L. J., Ex. 62. (o) Reff. V. Loudon (?• ^'orth Westeri: Rail. Co., 16 Q. B. 884. Reg. v. Am- bergate, %c. Rail. Co., 1 El. & Bl. 381. (p) Thorpe v. Adams, L. R., 6 C. P. 126 ; 40 L. J., M. C. 52. {q) Clarke v. Bishop of Sarutn, 2 Str. 1082. (r) Hill, J., In re Barlow, 30 L. J., Q. B. 271. {») Reg. V. Sull # Selbu Rail. Co., Q. B. 70; 13 L. J., Q. B."'267. Reg. v. Bristol ^ Exeter Rail. Co., 3 RaU. Cas. 777. (t) Com. Dig. Mamdamtjs, A. R. v. Clear, 4 B. & C. 901. Reg. v. I'onsford, 1 D. & L. 116 ; 12 L. J., Q. B. 313. («) R. V. Severn ^ Wye Rail. Co., 2 B. & Aid. 650. Reg. v. Bristol Bock Co., 2 Q. B. 70. Reg. v. Victoria Ta.k Co., 1 Q. B. 291. (x) Reg. V. Balby, S;c. Turnpike Trust, 1 B. C. C. 134; 22 L. J., Q. B. 164. Reg. V. Abrahams, 4 Q. B. 161. Reg. V. Orton Trustees, 14 Q. B. 146. Ex parte Bassett, 7 El. & Bl. 280. G78 DUTIES OF PUBLIC OFFICERS. [CHAP. XI. 'J 641 Boienoe, wants the rinculitm Juris, and is not a legal obliga- tion (y) . 1 he mere receipt of a lump sum of money by public officers, to be distributed or administered by them, does not render them liable to a mandamus for not paying the money (s). Where an an- nuity has been granted by Act of Parliament, and charged upon the consolidated fund, and the annuity is in arrear, and payment can only be obtained by warrant of the Lords of the Treasury, and the duty of granting the warrant is imposed upon them by statute, and they refuse to fulfil this duty, and to do what is necessary to be done to enable the prosecutor to obtain payment, there is a case for a mandamus {a) ; but, if the prosecutor fails in establishing a clear statutory duty, the court will decline to interfere (b) ; and as against the servants of the Crown, as such, and merely to enforce the satisfaction of claims upon the Crown, it is an established rule that a mandamus will not lie (c). Mandamus — Judicial officers. — Courts of quarter sessions, re- corders of boroughs, justices of the peace (rf), and judges of inferior courts of re'^ord (other than county court judges (e)), may be compelled to fulfil the duties of their several offices, and to receive, hear, and adjudicate upon an information, complaint, claim, dispute, or appeal brought before them, which they have refused to hear and adjudicate upon from some erroneous view of the law, or of the extent of their powers and jurisdiction (/). But, where they have entered upon the matter, and have decided, the court will not, by mandamus, review their decision or compel them to re-hear the case, on the ground that they have come to a wrong conclusion in point of law (g). The court never grants a mandamus except it indisputably appears thai; the party to whom it is directed has, by law, power to fi • l#" • if! '}■' 11 51 ilii ir., (y) Ex parte NapUr, 18 Q. B. 695 ; 21 L. J., Q. B. 332. Reg. v. Commissioners ofTreasunj, L. R., 7 Q. B. 387; 41 L. J., Q. B. 178. iz) Ex parte Walmsletj, 1 B. & S. 81. (a) Reg. v. Treasury {Lords of), 16 Q. B. 361. Reg. v. Ambergate, ^-c. Rail. Co., 1 El. &' Bl. 381. But see Reg. v. Commissioners of Treasury, supra. {b) Reg. v. Treasury (Lords of), 4 Ad. & A. 981. And see Reg. v. Receiver of Melropolitan Police, 4 B. & S. 693; 33 L. J., Q. B. 52. (c) In re Bode {Baron de), 6 Dowl. P. C. 792. In re Hand, 4 Ad. & E. 984. In re Smith, ib. 976. Ex parte Ricketts, ib. 999. {d ) In the case of justices of the peace more simple means have been substi- tuted by the 1 1 & 12 Vict. o. 44, for the ordinary remedy by mandamus. Reg. v. Botekr, 4 B. & S. 969 ; 33 L. J., M. C. 101. Post, p. 681. {e) In the case of county court judges a simpler remedy is substituted by the 19 & 20 Vict. 0. 108, B. 43, and the 21 & 22 Vict. c. 74, B. 4. (/) Reg. V. Richards, 5 Q. B. 932. Reg. V. Richmond Recorder, El. Bl. & El. 263; 27 L. J., M. C. 197. Reg. v. Newport Guardians, 33 L. J., M. C. 156. (jr) Rey. x. Leicester Deputies, 15 Q. B. 674 S. C. nom., Reg. v. Goodrich, 19 L. J., Q. B. 413. Reg. v. Blanshard, 13 Q. B. 326. Reg. v. Liverpool Recorder, 20 L. J., M. C. 37. Ex parte Bullcr, 1 Jut., N. S. 709. Reg. v. East Riding Justices, 13 Jut. 44/. Cockbum, C. J., Ex p^rte Cook, 2 El. & El. 686; 29 L. J., Q. B. 68. Ex varte Bird, 1 EI. & El. 931 ; 28 L. J., Q. B. 223. Reg. v. Mainwaring, El. Bl. & El. 474; 27 L. J., M. C. 278, HAP. XI. CHAP. XI.] REMEDY BY MANDAMUS. 679 il obliga- .0 officers, ier them ire an an- upon the [uent can ', and the f statute, 3eB8ary to ) is a case Wishing a ; and as enforce shed rule sions, re- udges of dges(e)), (fices, and omplaint, hey have IS view of /). But, 3ided, the ipel them > a wrong isputably power to ouit judges it«d by the ad tho 21 & Q. B. 932. El. Bl. & 1. Reg. V. J., M. C. ?s, 15 Q. B. drich, 19 L. mishard, 13 ol Recm-der, te Bulkr, 1 'Hast Riding )um, C. J., 1. 686; 29 liird, 1 El. >3. Reg. v. 4;27L.J., 642 do what he is enjoined to do, and will not compel any person to exercise a doubtful jurisdiction {h). Mandamus — Ministerial officers. — The writ of mandamus lies also against all ministerial officers, to compel them to execute the duties of their oeveral offices, and discharge the functions delegated to them for the public benefit, although there is a penalty for their neglect (?"). It mil go to a gaoler to compel him to give up the body of a deceased prisoner for debt to his executors (^•), or to receive a prisoner (/) ; to the trustees of a public charity, whose duty it is to furnish a churchwarden with the keys of a chest, enjoining them to deliver the keys {m) ; to justices and clerks of tho peace of a borough, to permit a ratepayer to inspect and take copies of a rate («) ; also to a corporation, commanding them to permit a member of the body corporate to inspect the minute- books, bj'e-laws, and records of the corporation, for the purpose of determining a matter in controversy between the corporation and the individual member, respecting tlio rights and privileges of the latter under the charter {o). But the court will not by mandamus compel the justices and the clerk of the peace of a county to allow ratepayers an inspection of the accounts and bills of charges of county officers settled and ordered to be paid at the sessions and deposited by the clerk of the peace amongst the county records, the ratepayers having no right to examine such accounts (;;) ; nor will the court interfere by mandamus with the administration of the funds of charities {q), nor compel trustees of turnpike roads to repair and keep in repair a turnpike road (r) ; nor will a manda- mus lie to a Crown officer to compel him to deliver up property which he holds in his hands on behalf of the Crown ; for a manda- mus to the officer in such a case would be like a mandamus to tlie Crown, which the court cannot grant (s). A mandamus will go to a lord of a manor to compel him to hold a court baron, and to the homage to present conveyances of burgage tenure {t) ; also to hold a court leet to swear in a constable, or to admit persons entitled to a franchise («) ; also to a corpora- {h) R. V. Bishop of Ely, 1 "W. BI. 68. fi. V. Sillifant, 4 Ad. & E. 361. Reg. V. London S; North Western Rail. Co., 6 Rail. Cas. 634. Ex parte Lee, El. Bl. & El. 863. (i) Com. Dig. Mandamus, 31 B. R. H. 26). {k) Reg. v. Fox, 2 Q. B. 246. (/) Reg. V. Cohill, 34 L. J., M. C. 137. Reg. v. Governors of Whitecross Street Prison, 6 B. & S. 371 ; 34 L. J., M. C. 193. (»») Reg. V. Abrahams, 4 Q. B. 161. (w) R. V. Leicester Justices, 4 B. & C. ^91. (o) Li re Burton, 31 L. J., Q. B. 62. (/>) R. V. Staffordshire Justices, 6 Ad. & E. 84. (i/) Ex parte Rugby Charity, 9 D. & R. 214. ()•) Reg. V. Oxford, ^c. Roads, 12 Ad, & E. 427. (.s) R. V, Commissiones of Customs, 5 Ad. & E. 380. it) R. V. Montaci'te {Ld.), 1 W. Bl. 60. R. V. Midhiir't, 1 Wila. 283. (m) R. v. Colebrooke, 2 I^enyon, 163. R. V. Milverton (Ld. of), 3 Ad. & E. 284. 680 DUTIES OF PUBLIC OFFICERS. [CHAP. XI. ' 4 ' I* m m in IS '' IP V ii ::■: |:,^ i 1 ■'1 lij!:. ' , 643 tion, to permit a court leet and court baron to be held, accord- ing to immemorial custom, in the town hall (;*;). The court will by mandamus compel the performance of a public duty by public officers, although the t'.me prescribed by statute for the performance of the duty has passed {>/) ; and, if the public officer to whom the performance of the duty belongs has in the meantiiiie quitted his office, and been succeeded by another, it is the duty of the successor to obey the writ, and to do the acts, when required, which his predecessor has omitted to per- form (c). In certain cases, however, where a public officer, occupying a subordinate position, has received an order from his superiors or any competent authority, and is liable to an indictment for dis- obeying the order, the court has refused to proceed by mandamus, and has kit the parties to the ordinary remedies (r/). Thus, in the ordinary caso of disobedience, by sujveyors, treasurers, and ministerial officers, of an order of sessions, the proper remedy is by indictment, or by removal of the order into the Court of Queen's Bench {b), and not by mandamus (t). " The court," observes Lord Kenyon, 0. J., " grants a mandamus to justices to make an order, when they refuse to do their duty. But it woiild be descending too low to grant a mandamus to inferior officers to obey that order : we might as well issue a writ to a constable, or other ministerial officer, to compel him to execute a warrant directed to him" (d). So a mandamus will not go to a clerk of justices to return a record of all summary convictions pursuant to the 11 & 12 "Vict. c. 43, s. 14, although such return ought to be made, and proceedings by rule or indictment might be taken against the justices to enforce it (e). But, where a ministerial officer is put forward as the nominal party, and a chartered com- pany or corporation is in the background disputing the liabihty, and is the party really to be acted upon by the mandamus, the court will direct the writ to issue (/). Mandamus to overseers or clergymen to hury the dead body of a 2)atq)er. — It would seem that the individual under whose roof a poor person dies is bound to carry the body decently covered to the place of burial; he cannot keep it unburied, nor do any- pi'lf: lilt' ipii 'f ik ■' {x) R. V. Grantham, 2 W. Bl. 716. It. V. Ikhester Bailiffs, ^c, 2 B. & 0. 764 ; 4 D. & R. 324. [y) Reg. v. Mayor, ^-c. of Monmouth, L. R., 6 Q. B. 251 ; 39 L. J., Q. B. 77. (s) Rochester {Mayor, ^c. of) v. Reg., El. Bl. & El. 1024 ; 27 L. J., Q. B. 436. (a) Coleridge, J., R. v. Payn, 6 Ad. & E. 401. (*) 12 & 13 Vict. 0. 45, 8. 18. [o) R. V. Bristow, 6 T. R. 168. R. v. Jeyes, 3 Ad. & E. 416. Ex parte Down/on Overseers, 8 El. & Bl. 856. (d) R. V. Bristow, 6 T. R. 170. («) In re Hayward, 3 B. & S. 546 : 32 L. J., M. C. 89. (/) Reg.v. Wood Ditton Surveyors, ^e., 18 L. J., M. C. 218. CHAP. XI.] REMEDY BY MANDAMUS. 681 644 thing which prevents Christian burial ; he cannot, therefore, cast it out, so as to expose the body, or offend the feelings, or en- danger the health, of the living ; and for the same reason he cannot carry it uncovered to the grave. It will probably be found, there- fore, that, where a pauper dies in any parish-house, poor-house, or union-house, of the parish or union, the overseers of the parish, or the guardians of the union, may be compelled by mandamus to bury the body; but the court will not grant a mandamus to overseers to bury the body of a pauper who has died in a private house in the parish, or in a hospital not belonging to the parish authorities (g). A mandamus to a rector to bury a corpse will bo granted, if it is shown that the rector has refused altogether to bury it. But there is no common-law right of burial in any particular part of the churchyard; and the court will not, by mandamus, enforce private rights of burial in any particular vault (//), or in any unusual or extraordinary manner (/). Mandamus to compel the surrender of jmblic documents. — The court has refused to grant a mandamus to compel a private indi- vidual to give up documents of a public natui'e, where the party claiming the possession of them had u remedy by action for the conversion or detention of the documents (A-). But the remedy by action is not an effectual remedy for the recovery of the docu- ments themselves; and, wherever a private individuo,!, who has quitted office, keeps back puolio documents of which he obtained the custody whilst acting in an official character or capacity, and by colour of his office, the court will by mandamus compel the pro- duction of the documents ; and if private and public documents have been so mixed u,p together that they cannot be severed, the whole must be produced (/). Thus, a mandamus will be granted to a person who hat. previously served the office of town-clerk in a borough, directing Wm to deliver up records and books connected with the administration of public justice in the borough, which came into his custody as town -clerk, and to hand them over to his successor in the office {m) ; also to a retired overseer of t!ie poor, to ootnpel him to deliver over the parish books to the new over- seer (h) ; also to a dismissed clerk of a chartered company, re- quiring him to deliver up to the company all books, papers, &c., which he had in his custody by virtue of being their clerk (o). But, where a vestry clerk moved for a mandamus to certain church- wardens to give up to him the custody of the vestry-book, which {g) Reg. v. Stewart, 12 Ad. & E. 773. (A) I!x parte Blackmore, 1 B. & Ad. 122. (») R. V. Coleridge, 2 B. & Aid. 809. \k) Reg. v. Hopkins, 1 Q. B. 169. (/) R. V. Pafjn, 6 Ad. & E. 399. (m) Nottingham Toum Clerk's Case, 1 Sid. 31. R. V. Ingram, 1 W. Bl. 49. (w) JB. V. Clapham, 1 Wils. 306. V. Fox, W. W. & H. 4. (o) R. T. midman, 2 Str. 879. Reg. ^m Wlww: i! 683 DUTIES OF PUBLIC OFFICERS. [CHAP. XI. • i- l\ : /!. > 645 had been taken from him at a vestry meeting, the court refused the application, as the vestry clerk had no certain tenure of office, and was the mere servant of the vestry, and could be dis- missed, and the book taken away from him, at their will (p). Mandamus to elect public officers. — A mandamus lies to the inhabitants of a parish, directing them to meet together and elect churchwardens (7), or an organist (r), but not to churchwardens, to call a vestry to elect a sexton, where the office is full by the appointment of the rector, and there is a remedy by refusing the sexton his fees, or bringing an action if they are taken (s). Mandamus to admit to a public office, — It is the duty, also, of the court to see that the functions appertaining to public offices are discharged by persons duly elected to the office. When, therefore, a public office is vacant, and a party has been elected to serve the office, the court will by mandamus enforce the rigbl to the office ; but, where the office has been created by charter, or by statute, and is not vacant, but has been usurped by an intruder, and the right to the office is disputed between two rival claimants, the right must in general be tried by quo tcarranto, and not by mandamus {t). If, however, *here is only a colourable election, it is void, and a mandamus to hold an election will be granted {\i) \ and there are occasions where a quo warranto will lie, and yet the remedy by mandamus may be deemed a more appropriate remedy {x). The mere rejection of votes at an election of corporate officers furnishes no ground for interference by mandamus, where it does not appear that the election has been thereby vitiated. It must be shown that the rejection of the votes led to the declaration of a candidate as duly elected, who would have failed if the votes had been received (y). The validity of an election by parishioners of churchwardens may, under certain circumstances, be tried by mandamus (2) ; and, where it is the custom for the parishioners to elect one churchwarden and for the rector to nominate the other, the validity of the rector's nomination may be tested by mandamus («). Wherever a person has been properly appointed to a corporate office, having a salary annexed to it, or has been duly elected to i- m a I i ■■■■ i hiPi! {p) Anon., 2 Chit. 255. if. v. Croi/don Churchwardens, 5 T. B. 7U. {q) Ji. V. Wix, 2 B. & Ad. 197. (r) Jteff. V. St. Stephens, 4e., 2 D. & L. 571 ; U L. J., Q. B. 34. («) JB. V. Stoke Bamerel, 5 Ad. & E. 684. {t)R. 269. ~ 149: V. Colchester [Mayor of), 2 T. R. Reg. V. St. Martins, ^e., 17 Q. B. 20 L. J., Q B. 423. Darley v. The Qiteen, 12 CI. & Kn. 620. Eill v. Seg., 8 Moo. P. C. 139. R. V. Winchester {Mayor of), 7 Ad. & E. 222. Rcy. v. Derby, ib. 419. («) R. V. Cambridge, 4 Buir. 2010. R. V. Oxford {Mayor of), 6 Ad. & E. 363. Reg. v. Leeds {Mayor of), 11 Ad. & E. 517. (x) Lawrence, J., R. v. Bedford Level, 6 East, 367. (y) Ex parte Mawby, 3 El. & El. 718. & (z) R. V. Birmingham {Rector of), 7 Ad. E. 254. (a) In re Barlow, 30 L. J., Q. B. 271. CHAP. XI.] REMEDY BY MANDAMUS. 683 646 serve the office, and the corporation refuses to institute him in the office, a mandamus lies to compel them to do so (b) ; hut the court will not interfere, where it will have to unravel the rights of voters who are alleged to have been themselves unduly elected, and to have had no right to vote (c). The writ of mandamus lies also against a rector or a parson, to compel him to receive and swear in a person who has been duly appointed to the office of churchwarden, sexton, parish-clerk, &c. (d) ; to a dean and chapter, to admit a prebendary to his stall and voice {c) ; to the lord of a manor, to admit a copyholder to a copyhold estate (./'), or to permit him to inspect the court-rolls of the manor (//) ; aud to the trustees of a moeting-house, to compel them to admit to the pulpit thereof a dissenting minister duly elected (//). But a mandamus does not lie to compel the admis- sion of a person to any mere private appointment, situation, or employment («), such as that of clerk or secretary to a joint-stock company (k), vestry-clerk, or toll-gate keeper (/). The writ of mandamus will not lie to compel the institution of a clergyman to a presentative benefice, as the appropriate remedy by qiiare impedit is open to those who present him, and he has himself no legal right whatever (/«). A mandamus to restore a public officer to a freehold office ^ from which he has been wrongfully dismissed, may be obtained on due proof of the wrongful dismissal (h). A public officer appointed for life, or during good behaviour, cannot lawfully be removed from his office for misconduct without being called upon to make, and being afforded an opportunity of making, his defence; for "Julius liber homo disscisictur de Ubero tenemento suo, nisi jjcr legale judicium parium suorum vel per legem tenw" (o). If he has committed a felony or misdemeanour, he must be tried and Convicted by a jury before the offence can work p forfeiture of his office ; and, if he has been guilty of misconduct in the discharge of his official duties, he must have an opportunity given him of answering the charge, or have been heard in his own defence, before he can lawfully be removed. Where a vicar removed a {b) R. V. Camhridge Univcrsiti/, 1 W. Bl. 551. if. V. miidham, I Ck)wp. 377. Seo now 45 & 46 Vict. c. 50, s. 225. (<•) Jieff. V. Dolgclly Guardians, ij'c, 8 Aa. & E. 564. {d) III re Bartow, 30 L. J., Q. B. 271. (e) R. V. Dean, ^r. of Xorwich, 1 Str. 159. Clarke v. Bishop of Sarum, 2 ib. 1082. (/) R, V. Hendon (i^ord of the Manor, ^c), 2 T. R. 484. See Reg. v. Garland, L. R., 5 Q. B. 269 ; 39 L. J., Q. B. 86. iff) R. V. Tower, 4 M. & S. 162. (A) R. V. Barker, 3 Burr. 1266. R. v. Jot/iani, 3 T. R. 577. ((') lie's case, 1 Ventr. 143. (k) White's case, 6 Mod. 18. (/) R. V. Croydon Churchwardens, ^r., 5 T. R. 713. (mi) Reff, V. Orton (Trustees of), 14 Q. B. 146. See Heywood v. Bishop of Manchester, 12 Q. B. D. 404. (>i) R. V. Morpeth Ballivos, 1 Str. 68. (o) Maonil Chabta, 0. 29. Reg. v. j.ivcrpool (Jtayor of), 2 Burr. 733. R. V. Favershain Fish Co., 8 T. R. 352. R. V. Lyme Regit {Mayor, Ac.), 1 Doug. 149. f^ ii •:■ 684 DUTIES OF PUBLIC OFFICEUS. [ciIAP. XI. It ^5 IS! 7. :■! 1 1 t& • ;) Mil ! :, !''■! ■ ' ■'tj ':■;■ I ,a. , ill 647 parish clerk for acts of misconduct alleged to have been com- mitted in the vicar's own view, the court granted a mandamus to compel the vicar to restore the clerk to his office. For the vicar it was contended that, as he acted on his own view of the prosecutor's misconduct, any kind of process for enabling him to disprove or explain it must be suporlluous, and that the law inve&ted the vicar with the functions of accuser, witness, and judge, in respect of indecent conduct publicly exhibited in his presence ; but the court held that sentence of removal from a freehold office ought to be preceded by some mode of inquiry, in which the accused should have an opportunity of being heard, and explaining his behaviour. "The important principle that every man ought to bo heard before he is condemned, so strenuously asserted by Lord Kenyon(;>), is not excluded," observe tlie court, "because the charge rests on the minister's personal observation, inasmuch as that is not inconsistent with the disproof of criminal motives and intentions, with the mitigation to which other facts miglit possibly entitle the accused, or with condonation of the offence. This principle appears to us valuable to the judge, whom it tends to secure against yielding too hastily to his own first impres- sions, while we think it indispensable, for the sake of the party charged, in all cases, to the due execution of every judicial power" {q). Even although the officer, having been duly elected, has pro- cured himself to be admitted to the office by means of fraudulent misrepresentation and deceit, he must be called upon to come in and defend himself before he can lawfully be removed (/•). Where, however, the election itself was void ab Initio, on the ground of fraud, so that the party has never become a member, his admis- sion may, it seems, be cancelled without a hearing [s) ; and a mandamus will not be granted to restore to an office a person who is admitted to have been rightly removed (/). There seems to be a great deal of difference between a man- damus to admit, and a mandamus to restore, to a freehold office. The former is granted merely to enable the party to try his right, without which he would be left without any legal remedy. But the court has always looked much more strictly to the right of the party applying for a mandamus to be restored. In these cases {p) In R. V. GaskiH, 8 T. R. 290, And see per Lord EUenborough, C. J. , in Buchanan v. Jliicker, 1 Gampb. 65. (?) Jteff. V. Smith, 6 Q. B. 623; 14 L. J., Q. B. 166. Doe v. Gartham, 1 Bing. 367. Cooper v. Wandsworth Board, ^., 14 C. B., N. S. 180 ; 32 L. J., 0. P. 186. (r) Bfff. V. Sadlers' Co., 10 H. L. C. 404 ; 30 L. J., Q. B. 186 ; 32 ib. 337. («) Jteff. V. Sadlerg' Co., supra. Reg. V. General Council Med. ^c, 3 EI. & El. 525 ; 30 L. J., Q. B. lOi. (/) B. V. Mayor of Axbridge, 2 Cowp. 523. CH.U». XI.] HKMRDY nV MANDAMUS. ()H.-> 648 ho must show a pn'ind fucic. title ; for, if ho has been before regularly admitted, he may try his right by bringing an action for money had and received for the profits. Therefore, in order to entitle himself to this extraordinary remedy, he must lay sucli facts before the court as will warrant them in presuming that the right is in him (»). Jf(iu(f(imtiH (o irxforc freehold qfftren. — If a man grants an office to another for the term of his life, the freehold estate which the grantee has in the office is upon condition in law that he shall well and faithfully do that which to such office belougeth to do, or otherwise it shall be lawful to the grantor and his heirs to oust him, and grant the office to another (r). There are, says Lord Coke, three causes of forfeiture, or seizure of offices : 1, by abuser ; 2, non-user ; 3, refusal (//). If the officer is removed by reason of the forfeiture of his freehold office, through breach of the implied trust upon which it was granted, that will be a removal *^j)er legem teirw." If he is not so removed, he ought to be convicted, '^j)er Judicium pariiim siiorxm," of some public crime before he can lawfully be dispossessed of his freehold (c) ; and the crime must be of such a nature as to render the officer publicly infamous, and unfit to hold any public office ; for, if he has been convicted of an assault, or any other offence which does not carry such infamy with it, the conviction will be no ground of disfranchisement (a). " There are," observes Lord Mansfield, " three sorts of offences for which an officer or corporator may be discharged : first, such as have no immediate relation to his office, but are in themselves of BO infamous a nature as to render the offender unfit to execute any public franchise ; secondly, such as are only against his oath and the duty of his office as a corporator, and amount to breaches of the iacit condition annexed to his franchise or office ; thirdly, such as are of a mixed nature, as being an offence not only against the duty of his office, but also a matter indictable at common law. For the first sort of offences there must be an indictment and conviction before removal ; but in respect of the second class of offences the party must be tried by the corporation " (b). There cannot, it seems, be any cause to disfranchise a member Ji. V. Jotham, 3 T. R. 575. (x) Litt. sect. 378. The grantee may be ousted, " t^il non attend stir son office, s'il fait contrariant chose a son office, ou misfeseance de son office," 11 Edw. 4, fol. 1. As to the duties annexed to the freehold o£Sce of clerk of the peace, see Harding v. Pollock, 6 Bing. 60. (y) Earl of Shrewsbury/ s rase, 9 Rep. 46 b. See Wildes v. Russell, L. R., 1 C. P. 722; 36 L. J., M. C. 241. (i) Bagg^s case, 11 Co. 99. Harcourt V. Fox, 1 Show. 431, 606; 4 Mod. 169. (rt) R. V. Richardson, 1 Burr. 538 ; BuUer's N. P. 7th ed. 206. Reg. v. Clerk of the Peace of Cumberland, 11 Mod. 81. 1 Roll. Abr. Office, 155. Cruise's Digest, Feanchise. (A) R. V. Richardson, 1 Burr. 537. R. V. Magor of Liverpool, 2 Burr. 733. Jieg. V. Bailies, 6 Mod. 192 ; 2 Salk. 680. 686 DUTIES OF PUHLIC OFFICERS. [CHAP. XI. ft., i l'jfi''|fS:':-' iltlfillV 649 of a corporation, unless it is fur a thing done which tends to the destruction of the body corporate, or to the destruction of the liberties and privileges thereof. Any mere personal offence of one member thereof affords no cause for disfranchisement (c). Mere misapplication of the money of the corporation is not a good ground for the disfranchisement of a corporator ; the corporation may have an action for the money {(/). Mandamus to restore. — Offices held at will, or during the good pleasure, or at the discretion, of the parties appointing to them, may be taken away without any reason assigned, or any summons or hearing of the party removed (<■) ; and a mandamus will not lie to restore an officer removable at will (./'). This is the case with the office of a vestry-clerk {g), clerk to justices (//), clerks and trea- surers of guardians of the poor (»), and the minister of a dissenting congregation, who is elected by the majority of the members of the congregation, and who may be removed by such majority, and be turned out of his house, premises, and chapel, if they are dis- satisfied with his doctrines and religious teaching (k), or restrained by injunction from further officiating (/). Where the charter by which a charity was founded conferred on the governors ful power to appoint the schoolmaster, and to remove him and to appoint another according to their sound discretion, and a schoolmaster was appointed and afterwards dismissed, it was held that the court could not interfere with the discretion of the governors, or review their reasons for the dismissal {m). Mandamus — Visitatorial power excluding the 2)roceeding by man- damus. — Where corporate offices are held in private or eleemosy- nary corijorations, on the terms that, if any dispute should arise respecting the right to the office, or the validity of a discharge or amotion from it, such dispute should be settled or determined by a visitor or judge whom the founder has nominated, the court will not interfere by mandamus («). But one branch of a corporation has no visitatorial power over another. The visitatorial power emanates from the founder. In royal founda^'^^ns of a private or eleemosynary character, if no special visitor h been appointed, the sovereign exercises the power by his chancellor. In corpora- W C) Jt.\. if) 291. (/) i 324. EarVs case. Garth. 176. R. V. Chalke, 1 Ld. Raym. 2''.5. Wihon (Mayor, ttc), 5 Mod. 267. R. V. Stratford {Mayor, ^c), 1 Lev. Le Roy v. Campion, 1 Sid. 14. Ante, p. 646. Ex parte Sandys, 4 B. & Ad. 863. R. V. St. Nicholas, ^e., 4 M. & S. (k) Doe V. Jones, 10 B. & C. 718. Doe V. McKaeg, ih. 721. (0 Cooper V. Gordon, L. R., 8 Eq. 249 ; 38 L. J., Ch. 489. (/») Rfg. V. Darlington School Gover- nors, 6 Q. B. 696, 716. («) Reg. V. Dean and Chapter of Chester, 16 Q. B. 613. Reg. v. Dean and Chapter of Rochester, 17 Q. B. 1. CHAP. XI.] REMEDY HY MANDAMUS. (J87 man- 650 tioas established for the government of cities and towns, the sovereign may bo said to exercise tho power by mandamus through the court (o). Mandamus to restore the name of a medical practitioner to the medical rcyiatcr. — By the 21 & 22 Viot. o. 00, s. 29, it is enacted that, if any medical practitioner shall bo convicted of any felony or misdemeanour, or shall, after due inquiry, be judged by tho general council of medical education and registration (/;) to have been guilty of infamous conduct in any professional respect, vhe general council may, if they see fit, direct the registrar to erase the name of such medical practitioner from tho register. The decisions of the council under this section, made after due inquiry, are final, and cannot be reviewed by tho court. Where, therefore, the medical council, after communicating to a medical practitioner certain charges made against him of infamous conduct in his profession, and having heard and considered his answers and explanations, directed the registrar to remove his name from the medical register, the court refused a mandamus to restore him {q). Mandamus — Conditions precedent to the issue of the writ. — To entitle a person to a mandamus, enjoining the performance of Bome particular act or duty, it must be shown that there has been a distinct demand of that which the person moving for the writ desires to enforce (r), and a refusal or withholding of compliance on the part of the defendant («). Mandamus — Action for a false return. — Actions for a false return are maintainable by the party injured or aggrieved thereby {t), unless damages have been recovered by him, under the statute of Anne, against the person making the return, upon a traverse of the facts contained therein, and an issue thereupon raised under the statute. The action must be brought against the party or parties who caused the return to be made («). It is not maintainable against one who voted against the false return, and was consequently no party to it {x). Doe 8 Eq. Cover- (o) if. V. London {Mayor of), 4 M. & R. 62. {p} See the 25 & 26 Vict. c. 91, and the 31 & 32 Viot. c. 29. {q) Ex parte La Mert, 4 B. & S. 582 ; 33 L. J., Q. B. 69. (>•) Heff. V. Bristol and Exeter Rail. Co., 4 Q. B. 162 ; 12 L. J., Q. B. 106. («) R. V. Brecknock, ^c. Canal Co., 3 Ad. & E. 222. Reg. v. Trtutees oj CheadU Highway, 7 Jur. 373. Reg. v. Norwich and Brandon Rail. Co., 3 D. & L. 386. The proceedings upon a man- damus are regulated by Jud. Act, 1875, 8. 25 (8); Ord. LIII. ; Ord. L. r. 6; Ord. XLII. r. 30, and Crown Office Rules, 1886, rr. 60—79. {t) Qreen v. Pope, 1 Ld. Raym. 125. Vaiighan v. Lewis, Garth. 227. No action or proceeding can be taken ag^iuHt any person in respect of anything done in obedience to a writ of mandamus issued by the supreme court or any judge thereof. Ord. LIII. r. 12. (m) R. v. Ripon (Mayor of), 1 Ld. Raym. 664. ix) R. V. Pilkington, Carth. 172. TT^ II iv-'l m l! 'ill i ' I;::. Iliiiil 0R8 DITTIEH OF PIinMr OFI'ICFRS. frnAr. xr. 651 Jtidirliil o/firrrs—Lidhififit's of JHilicial nffircrn. — Whon tho oxooutivo power of tho HOVfroign has l)«). This freedom from action and suit is given to judges, not so much for their own sake as for the ,mke of the public and for the advancement of justice, *' that, being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice," observes Lord Teuterden, *' ought to be." W/io are jiidyen and Judicial officers. — Tho steward of a court- ►."jon is a judicial officer, and cannot, therefore, be made respon- sible for the mistakes and irregularities of the bailiffs and minis- terial officers of the court (c). So also was the sheriff when presiding in the county court as anciently constituted (d). The vice-chancellors of the Universities of Oxford and Cambridge are also judges of a court of record ; and so are all persons who have power to fine and imprison (e). Wherever power is given to examine, hear, and punish, it is a judicial power, and they in ((/) Hamond v. Houell, 1 Mod. 184 ; 2 Mod. 219. (r) Dottrell v. Impey, 1 B. & C. 169. Oraham v. Laffitte, 6 Moo. P. C. 382. (a) A te, p. 183. [b) Ferguson v. Kinnoul {Earl of), 9 CI. & Fin. 290 ; and see Peiiley v. Darin, 10 C. B., N. S. 492; 30 L. J., C. P. 379. [c) Holroyd v. Breme, 2 B. & Aid. 473. [d) Tunno v. Morris, 2 C. M. & R. 298. (*) Kemp V. Mvillt, 10 C. B., N. S. 623 ; 31 L. J., C. P. 168. .J^ - . CHAP XI.] JIiniCTAL OFFK'RKS. 089 652 wliom it 18 roposed act as judgos ; and porsons wl»o aro mado judges aro not liable to have tUoir v'd^nionts oxaniinod in actions brought against tlumi (tf). A coroner is a judicial ofKoor. It a coroner thinks that an inquest ought to bo conducted in secrecy, ho has power to exclude all persons not necessarily engaged in the inf^uiry ; and, if the exclusion of any particular person appears to him to bo necessary or proper, it is for him to decide who io to be excluded. If a person has by order of the coroner been forcibly turned out of a room when an inquisition was about to bo taken, the person so expelled has no right of action against the coroner for an assault (/<). •' Arbitrators whom parties by consen*^^ have chosen to be their judges shall never," observes Lord Holt, " be arraigned more than any other judgos "(/); for, if it should bo allowed to make arbitrators defendants, and give them the trouble to defend their judgments and set forth the particular reasons upon which they founded their award, it Avould introduce very great inconveniei:'ie, and be a discouragement to any person to undertake a reference. If there is any palpable mistake made by an arbitrator, or any miscalculation in an account laid before him, the person aggrieved may take proceedings to have the award set aside (k). Arbitrators and quasi arbitrators, therefore, are not responsible in damages for their mistakes or omissions, or for negligence or carelessness in the discharge of the duties intrusted to them ; but, if they abuse the office of judge, and act fraudulently and corruptly, or maliciously, they are answerable in damages to the parties grieved (l). The functions of a returning officer aro not wholly ministerial, but are partly judicial and partly ministerial ; and a judicial officer cannot bo made responsible for an erroneous or wrong judgment, where he has acted bona Jidc in the matter of which the laAV gives him cognizance. " It cannot be contended that be is to exercise no judgment, no discretion whatever, in the admis- sion or rejection of votes; and he could not discharge his duty without great peril and apprehension, if, in consequence of a mistake, he became liable to an action " (>»)• Judicial officers — Delegation of functions.— Jndidal functions cannot be delegated ; and, if it has been the practice of a particular :., N. S. {ff) Groentelt v. liurwell, 1 Ld. Raym. 467. (A) Garnelt v. Ferrand, 6 B. & C. 611. (•) Morris v. Rei/nolds, 2 Ld. Kuym. 867. (A) Ld. Hurdwicke, J«o«.,3 Atk. 644. [1) Wills V. Maeearmiek. 2 Wils. 148. Tozer v. Child, 7 El, & Bl. 383 ; 26 L. J., A. Q. B. 151. See 7« re Hopper, L. R., 2 Q. B. 367; 8 B. & S. 100; 36 L. J., Q. B. 97. Pappa v. Jiose, L. R., 7 C. P. 32,625; 41 L. J., C. P. 11, 187. Tharsis Sulphur Co. V. Loftus, L. R., 8 0. P. I ; 42 L. J., C. P. 6. (m) Abbott, C. J., Cullen v. Morris, 2 Stark. 587. Y Y -— .r Ik- '. r i f 1 1 690 DUTIES OP PUBLIC OFFICERS. [CHAP. XI. 653 court to delegate to its clerk the performance of judicial acts, the practice is illegal, and tie clerk who thus takes upon himself the office of judge is responsible for the orders ho gives. If he takes upon himself to issue a warrant without the order or direction of the judge, he is liable for the trespasses occasioned by its execution. Where commissioners of a court for the recovery of small debts were empowered by statute to order payment of judgment debts by instalments, and, in case of default in payment of the instal- ments, the commissioners present in court, at the instance of the plaintiff, and upon due proof of the default, were empowered to award execution against the judgment debtor, with such costs as to them should seem just, and it was shown to be the practice of the court for the commissioners, at the time they gave judgment for the plaintiff, to direct the debt to be paid by monthly instal- ments or execution to issue, it was held that the commissioners had no power to make such a practice or such an order at the time of the judgment, because, if made then prospectively, it dispensed with that proof of non-payment wliich the statute required, and with the exercise of any discretion on their part as to the execution or further costs ; that the direction, therefore, for issuing execution, engrafted on the original judgment, and made part of it, was not merely irregular, but a nullity ; and that the clerk had issued the warrant without authority, and was, consequently, liable for the imprisonment occasioned by its execution («). Judicial officers — Disaualificaiion on the (/round of interest. — In accordance with the maxim, nemo debet esse judex in propria sua causa, it has been held that, whenever it appears that the judge is a party to the suit, the judgment is erroneous (o). If, therefore, he has any private or pecuniary interest in the subject-matter of the suit, he cannot adjudicate upon it (/)). Such interest, however, must be direct and certain, and not merely remote or con- tingent (q). Judges of the superior courts — Power to commit for contempt {,). —The superior courts at Westminster have by immemorial usage power to punish by fine or imprisonment for contempt, whether hi 1 i 1 nil ii\> (n) Andrews v. Marris, 1 Q. B. 3. Whitelegg v. Richards, 2 B. & C. 45. (o) London {City of) v. Wood, 12 Mod. 688. {p) Dimes v. Grand Junction Canal Co., 3 H. L. C. 769. Heg. v. Aberdeen Canal r!o., 14 Q. B. 866. Kemp v. Rose, 1 Giff. 268. (?) Beg. V. Manchester ^ Sheffield Mail. Co., L. R., 2 Q. B. 336 ; 36 L. J., Q. B. 171. The case was decided under s. 3S of the Lands Clauses Act; but it was considered that the words "interested in the matter in dispute" used in that sec- tion were merely declaratory of the com- mon law. See Jteg. y. Rand, L. R., 1 Q. B. 230; 36 L. J., M. C. 157. (>•) As to commitments by legislative assemblies, see Boyle v. Falconer, L. R., 1 P. C. 328; 36 L. J., P. C. 34. The Speaker of the Legislative Asiembly of Victoria v. Glass, ii. R., 3 P. C. 560. Attorney-General of New South Wales v, Maepherson, L. R., 3 P. C. 268. Barton V. Taylor, 11 App. Cas. 197; 65 L. J., P. C. 1. -"T^^^/fr-.-jif.X-^-'yrj^f'.'", CHAP. XI.] JUDICIAL OFFICEES. 691 I that 8ec- J the com- II. R., 1 logiHlative \r, L. E., 1 34. The yembly of 0. 560. Wales V. Barton 56 L. J., 654 committed in the face of the court or not. A superior court of record has po«er to punish, hy commitment for contempt, a libel upon the court, piiblished when the court Is not sitting as well as when it is sitting ; and the question whether the particular publi- cation is libellous or contemptuous is a question for the court which commits. Any publication tending to influence the result of a pending suit, or to prejudice the minds of the public with regard to it, is a contempt of court (s). When the committal is by way of punishment, it ought to be certain as a sentence, and the term of imprisonment should be specified (<). The court cannot for contempt suspend a barrister from practising, if the contempt is not in his character as bar- rister, but as suitor ; for the proper punishment for contempt of court ie fine and imprisonment («). The court cannot delegate to a single judge the power of issuing a warrant for the apprehension and committal of the person in contempt (x). A superior court may adjudge a man to be guilty of a contempt, and may imprison him for a certain time for such contempt, without setting forth on the face of the warrant the grounds upon which its adjudication proceeded (y). Judges of inferior courts of record. — Every judge of a court of inferior jurisdiction must have before him some cause of action, charge, or complaint, into which he has by law authority to in- quire, or his proceedings will be extra-judicial, and he will be responsible for the injurious consequences which result from them to others (2). A judge of a court of record in England with limited juris- diction is not responsible in damages for the consequences of his acts and proceedings in respect of matters over which he had no jurisdiction, if he had a prima, facie jurisdiction in the matter, and had not the knowledge, or means of knowledge of which he ought to have availed himself, of his want of jurisdiction. Thus it has been held that, if one is arrested by process out of an inferior court for a cause of action which did not arise within its jurisdic- tion, the party arrested may well maintain an action against the plaintiff who levied the plaint and should be intended to know where the cause of action arose, but not against the judge or the officer who entered the plaint or executed it ; for, when it was impossible for them to know that the cause of action did not arise within their (») Daw V. Eley, L. R., 7 Eq. 49; 38 L. J., Ch. U3. Be Cheltenham, ^-c. Carriage and Waggon Co., L. R., 8 Eq. 580 ; 38 L. J., Ch. 330. (<) Crawfrnd'scaee, 13 Q. B. 629. R. T. Janm, 5 B. & Aid. 894. . (m) In re Wallace, L. R., 1 P. C. 283 ; 36 L. J., P. C. 9. (a) Van Sandau v. Turner, 6 Q. B. 785. (y) Ex parte Fernandez, 10 0. B., N. S. 26; SOL. J., C. P. 321. (z) Hopper V. Warburton, 32 L. J., Q. B. 104. Y y2 m^ PM Pi rri- 11 i . 692 DUTIES OF PUBLIC OFFIOERS. [CHAP. XI. 656 jurisdiction, it would not be agreeable to any rules of justice to make them liable to an action ; but the proper and just remedy was against the plaintiff (a). It has accordingly been held, that the judge of a court of record in a borough is not responsible "S a trespasser for the imprisonment of a defendant, where he had no means of knowing, except through the plaintiff or defendant, and did not know, that the cause of action ajose without the limits of the borough (6). Where the facts of the case before a county court judge, although subsequently found to be false, were such as, if true, woidd hiive g' a the judge jurisdiction, the judge was held not to be respojjibi. xor his judgment and order in the matter ; but, where the facts showed that he had no jurisdiction, and the judge mistook the law as applied to these facts, and wrongfully ordered a party to be committed, it was held that he was responsible in damages for the imprisonment (c). If an action is brought in a court of limited jurisdiction, and the defendant pleads to the jurisdiction, the court must decide whether they have jurisdiction or not; and, if they decide that they have jurisdiction in a case where they clearly have no pretence for it, and give judgment against the defendant, all the members of the court present, and taking part in the judgment, may render themselves liable to an action id). A county court judge is not ousted of his v isdiotion by a notice of a bona fide claim of title in those caseti i > • b^ch his jurisdiction to try cases of title does not extend. It is iv' y to inquire into the claim, and determine whether there reallj i a question of title involved in the issue before him (e). Judges of inferior courfs — Power to commit for contem2?t.— Inferior courts of record have power to fine and imprison for any contempt committed in the face of the court, such a power being necessary for the due administration of justice, to prevent the court being interrupted ; but they have no authority to punish for contempt not committefl. in the face of the court (/). If an inferior court having pow(i'' to commit or fine for contempt treats that as a contempt which there was no reasonable ground for so treating, the superior courts will interfere to protect the person subjected to an improper exercise of the power. But the court cannot take upon itself the functions of a court of appeal from the decision of the court below; and, if there wac any colourable ground for the exercise of its jurisdiction, the superior courts will {a) Olliet T. £emt/, 2 W. Jones, 214. (i) Gwynny. Poole, Lutw. App. 1566. Calder v. Halkett, 3 Moo P. C. 77. Taafft y. Downes, ib. 36, n. («) Eoulden v. Smuh, 14 Q. B. 852. Id) Wingate v. Waxie, 6 M. & W. 746. (e) Emery v. Barnett, 4 0. B., N. S. 431 ; 27 L. J., C. P. 216. (/) Beg. V. Lefroy, L. R., 8 Q. B. 134 ; 42 L. J., Q. B. 121. ,i_ ^y/J.L,. % CHAP. XI.] JUDICIAL OFFICERS. 698 656 not interfere with its judgment in the matter (y) . A contempt of court being a criminal offence, no person can be punished for it, unless the specific offence charged against him is distinctly stated, and an opportunity given him of answering (//). The County Courts Act (/) gives the judge the power to com- mit for any insults wilfully offered to him or his officers, or for any wilful interruption of the proceediags in court, or any other misbehaviour in court ; and it has been held that the judge has jurisdiction to decide conclusively whether any partioi.!ar act does amount to an insult, or interruption, or misbehaviour, and that it is unnecessary for a judge to say more in the warrant of commit- ment than that he has been wilfully insulted (A). The power of a county court judge to punish for contempt committed in the face of the court is limited to imprisonment for any period not exceed- ing seven days, or a fine not exceeding 5/., with the alternative of imprisonment of the same duration in default of payment (/). Judges of inferior ecnrts — Notice of action. — All judges of courts of inferior jurisdiction acting under the authority of an Act of Parliament, are, in general, entitled to notice of action, and to an opportunity of tendering amends and paying money into court ; and the action against them must, in general, be brought within a certain limited period. By the 9 & 10 Vict. c. 95, s. 138, notice of action is required to be given to all persons acting in execution of the County Courts Act. If, therefore, a coimty court judge, in making an order of commitment, acts under the bond fide belief that his duty as judge of the county court renders it incumbent on him to do so, notwithstanding a prohibition has been issued, the act done by him must be considered as done in pursuance of the County Courts Act, and he is entitled to notice of action {m). Of the jurisdiction of justices of the peace. — The anrient con- servators of the peace, the noture and extent of whose power and authority are now unknown, were formerly elected by the free- holders of the county ; but, since the reign of Edward III., they have been appointed by the crown. By the 34 Edw. 3, c. 1, it is enacted, that in every county of England there shall be assigned for the keeping of the peace one lord, and with him three or four of the most worthy of the county, with some learned in the law ; and they shall have power to restrain offenders, rioters, and all other barrators, and cause them to be imprisoned and duly punished according to the law and customs of Lhe realm, and inform them- (g) In re Pater, 6 B. & S. 299; 33 L. J., M. C. 142. (A) In re Pollard, L. R., 2 P. C. 106. See M'Dermott v. Judgea of British Guiana, L. E., 2 P. C. 341 ; 38 L. J., P. C. 1. (i) 9 & 10 Viot. c. 95, 8. 113. (/t) Lev;/ V. Moi/lan, 10 C. B. 211. (/) 9 & 10 Viot. 0. 96, s. 113. (m) Booth V. Clive, 10 C. B. 835; 2 L. M. & P. 283. 694 DUTIES OF I'UBLIC OFFICEUS. [CIIAP. XI. hit Pi ! til I 657 selves of pillors and robbers who go wandering about and will not labour, and put them in prison, and take of all them that be not of good fame sufficient surety and mainprize of their good behaviour, and duly punish others, and hear and determine, at the king's suit, all manner of felonies and trespasses done in their several counties, according to the laws and customs of the realm. From this statute, therefore, it appears that justices of the peace were to be appointed by commission from the crown ; that they were to have authority to hold a court, and were to be judges of a court of record. Courts accordingly were holden by them for hearing and determining offences within their cognizance ; records were kept by them of their proceedings in these courts ; and each justice named in the commission came to be called custos rotnlorum, or keeper of the records and rolls of the county («). The power to " hear and determine " gave justices of the peace authority only to hear and determine through the medium of the common-law method of in«iuisition, by the verdict of u jury ; " for that is implied by law ; and the court will adjudge as the law appoints, although it be not so expressed " (o). Hence, justices were under the necessity of holding sessions and assembling juries for the trial of all offences of which they had cognizance ; and these sessions were by the 36 Edw. 3, stat. 1, c. 12, commanded to be held at least four times a-year. Special sessions were afterwards directed to be held for executing certain statutes which the justices were charged to execute ; and they were enjoined the diligent perusal and study of vaese statutes at the Easter sessions in every year {p). The form of the commission of the peace as it exists at present, is said to have been settled by the judges in the 33rd year of Queen Elizabeth's reign [q). It assigns the several persons named in it, and every one of them, jointly and severally, the queen's justices, to keep the peace in a particular county ; and to cause to be kept all statutes made for the good of the peace and the quiet government of the people ; and to punish all who ofEend against any of the said statutes ; and to cause to come before them all who shall threaten any of the people as to their persons, or the burning of their houses, in order to compel them to find surety for the peace or good behaviour;' and, if they shall refuse to find such surety, to cause them to be safely kept in prison till they shall find it : also to inquire, upon the oath of good and lawful men of the county, of all felonies, trespasses, and offences, of which justices of the peace may lawfully inquire (r). (n) Holt, 0. J., Sareourt v. Fox, 1 Show. 607 ; 4 Mod. 169. (o) See Holland'i case, i Co. 74a, 74b. (p) 33 Hen. 8, c. 10. Iq) 2 Hawk. P. C. c. 8, § 2 (r) Dalt. J. P., Ch. 5. CHAP. XI.] JUSTICES OP THE PEACE. 695 658 Besides the general authority confided to justices by the commission of the peace, they are clothed by various Acts of Par- liament with a special and particular jurisdiction over particular offences, which jurisdiction must be exercised sometimes by one justice and sometimes by two ; sometimes in their sessions, and sometimes out of their sessions. Whenever these statutory powr rs are exercised by justices, care must be taken that the special authority is strictly pursued. Every single justice has regularly a jurisdiction for the preser- vation of the peace through the whole county by vuiue of his commission ; but the power of hearing and determining offences is by the commission given to two or more ; and, whenever a thing is required to be done by two justices, they must both be present at the execution of it. A justice has no power to do any judicial act out of his county ; but he may do a merely ministerial act, such as the taking of an information (s). A justice of the peace has jurisdiction to require sureties for good behaviour from persons charged with aggravated defamfition, and with persisting in a continued course of libelling. Therefore, where a person persisted in writing libels upon a wall against a private individual, and was required to find sureties for his good behaviour, and in default was committed to prison, it was held that the justice had acted in a matter over which ho had jurisulction (/). If the charge is of an offence over which, if the offence charged is true in fact, the magistrate has jurisdiction, the magistrate's juris- diction cannot be made to depend upon the truth or falsehood of the facts, or upon the evidence being sufficient or insufiicient to establish the corpus delicti; nor can the jurisdiction be ever held to depend upon the value or credibility of the evidence (ti). Acts of a justice of the peace -who has not duly qualified are not absolutely void ; and, therefore, persons seizing goods under a warrant of distress, signed by a justice who has not taken the oaths at the general sessions, nor delivered in the certificate re- quired, are not trespassers. Many persons acting as justices of the peace in virtue of offices of corporations, have been ousted of their offices from some defect in their election or appointment; and, although all acts, properly corporate and official, done by such persons are void, yet acts done by them as justices, or in a judicial character, have in no one instance been thought invalid (x). Jurisdiction founded on their own view. — A conviction before a justice or justices of the peace, without the intervention of a jury, (») 2 Hale, P. C. 51. (<) Hayloekv. Sparke, I El. & Bl. 471 ; 22L. J., M. 72. (m) Cave V. Mountain, 1 M. & G. 262. (x) Margate Pier Company v. ITannam, 3 B. & Aid. 271. w m 696 DUTIES or I'UJJLIC OFFICEUS. [CIIAI'. XI. ?v : I II 659 is always, as we have seen, under some statute, the common law sanctioning no such proceeding. In some cases, and under particular Acts of Parliament, a summary remedy is provided for particular offences, by enabling a magistrate to convict and punish upon his own view of the commission of the offence, without making any inquiry upon oath or taking any information (//). The record of the proceedings in such cases need only set forth such circumstances as were necessary to give the magistrate jurisdiction, and show that he pursued the directions of the statute (z). Jurisdiction founded upon information or conipiaint. — When the magistrate has not been authorized by statute to act upon his own view, he must have some information or complaint before him in order to give him jurisdiction in the matter. He may have juris- diction over the offence in the abstract ; but, to give him jurisdic- tion in any particular case over a particular individual, there must be a proper charge or information before him (a) . If, therefore, he grants a warrant against a person upon a supposed charge of felony, without taking any deposition or information on oath, and the party is arrested under the warrant, this is a trespass, for which an action may forthwith be maintained against such justice for compensation in damages (6). So, if he makes an order for the removal of a pauper, without having before him a complaint by the parish officers of the ohargeability of such pauper to the re- moving parish, he acts wholly without jurisdiction in the matter, and is a trespasser (c). Indictable offences — Power to issue warrants of apprehension. — By the 11 «& 12 Vict. c. 42, s. 1, where a charge or complaint is made before a justice that any person has committed or is sus- pected to have committed an indictable offence within the juris- diction of the justice, or, having committed or being suspected of having committed the offence elsewhere, is within the jurisdiction, the justice may issue his warrant for the arrest of such person ; but, before the warrant is issued, the justice must have before him an information or complaint in writing on oath (sect. 8). When a warrant is intended to be issued on the strength of the information, the information must, in order to give the justice jurisdiction in the matter, disclose a complaint about something that the justice has authority to inquire into and adjudicate upon, and the facts necessary to show jurisdiction must be substantiated on oath. An information on oath laid before a magistrate, charging an offence within his cognizance, is sufficient (y) Jones v. Owen, 2 D. & R. 602. (z) Basten v. Carew, 3 B. & G. 649. (a) Caudle v. Seynww, 1 Q. B. 892. (i) Morgan v. Httghes, 2 T. R. 225. (c) B«g, V. Justices of Bucks, 3 Q. B. 807. ^ CHAP. XI.} JUSTICES OF THE PEACE. 097 660 to give the magistrate jurisdiction over the charge and the person charged, although the information does not disclose any legal evidence of the guilt of the prisoner, and states nothing beyond mere hearsay, upon which neither judges nor juries could properly act. The commitment by the magistrate of a person to gaol upon the strength of such an information amounts at the utmost to no more than an error in judgment on the part of the magistrate, for which, if acting within his jurisdiction, he is not liable (d). But the information must impute a criminal offence within the juris- diction of the magistrate, and not a mere civil wrong, in respect of which he has no jurisdiction (e). When constables have arrested a man, and are taking him before a magistrate for the purpose of inquiring into a charge, it is not competent for a magistrate who meets them in the street to order the constables to take the man back to gaol, and keep him in prison. " It is a magistrate's duty," observes Patteson, J., " on all occasions, either to examine into a charge, or, if there is a reason why he cannot examine into it, he is not to interfere at all, and should let the constable take the party before some other magistrate. It would be a very fearful thing, indeed, if any magistrate were at liberty, meeting a man in custody of the con- stables in the street, to say, * Take him back for twenty-four hours, and bring him up to-morrow ' " (/). Commitment for trial. — By the 11 & 12 Vict. c. 42, s. 17, it is enacted, that in all cases where any person shall appear or be brought before any justice of the peace, charged with any indict- able offence, the justice, before he commits the accused person for trial, or admits him to bail, shall, in the presence of such accused person, who is to be at liberty to put questions to any witnesses produced against him, take the statement on oath or affirmation of those who know the facts and circumstances of the case, and shall put the same into writing, and such depositions shall be read over to, and signed respectively by, the witnesses who shall have been so examined, and also by the justice or justices taking the same, and shall afterwards be delivered to the proper officer of the court in which the trial is to be had (sect. 20). Every magistrate taking (d) Cave v. Mountain, 1 M. & O. 257. {e) Latvrenson v. Hill, 10 Ir. Com. Law Bep. 185. A juetice's warrant put in by the plaintiff is evidence for the defendant of an information on oath before the juatioe recited in the warrant. The recital must be considered part of the warrant, and admissible evidence for the defendant, when the warrant is pro- duced against him by the plaintiff, for the purpose of showing on what grounds, and in relation to what subject-matter he was acting when he granted it ; in the same manner as, if a magistrate were to commit for a felony on his own view, the warrant reciting that he had seen the felony committed, when put in evidence against him, would be admissible evi- dence for him that he had seen the felony committed. Haylock v. Sparke, 1 El. & Bl. 471 ; 22 L. J., M. C. 71. (/) Edwards v. Ferris, 7 C. & P. 642. ¥4 698 It! m' B ''\ ii- Pi-, $H 1^' B; :f ■.' k ii. DUTIES OF PUBLIC 0FFICEH8. [CIIAP. XI. 661 the depositions on oath of tho party making the charge, has a disoretion to exercise; he is to examine the witness, hear his answers, and judge of the manner in which they are given, and to determine in many cases whether bail can or shall be taken. If, therefore, the depositions are taken by the magistrate's clerk in the absence of the magistrate, and tho magistrate proceeds to act upon depositions so taken, he acts entirely without jurisdiction : there is no proper charge before him : and, if he directs the im- prisonment of the person accused by them, ho is responsible for a trespass {(/). The magistrate is not answerable for the correctness of the charge, or for any erroneous judgment of his own upon the facts. "The only question is, whether the magistrate had juris- diction to investigate and commit " (//). Certain indictable offences mentioned in the First Schedule of the Summary Jurisdiction Act, 1879 («), may now be dealt with summarily under certain conditions, and the form of procedure in such cases is provided by that statute {J). Summary jurisdiction. — By tho 11 & 12 Vict. c. 43, s. 10, it is enacted, that every complaint upon which a justice of the peace is authorized by law to make an order, and every information for any offence or act punishable upon summary conviction, unless some particular Act of Parliament shall otherwise require, may be made or laid without any oath or affirmation being made of tho truth thereof, except in cases of informations where the justice receiving the same shall thereupon issue his warrant in the first instance to apprehend the defendant ; and in every such case the matter of such information shall be substantiated by the oath or affirmation of the informant, or by some witness on his behalf, before any warrant shall be issued. The information must disclose upon the face of it some offence, neglect, or default, into which the magistrate has authority to inquire, and respecting which he has jurisdiction to adjudicate {h). Where the statute creating the offence directs the issue of a summons, and gives the party summoned a certain time to appear and plead, there will be a clear want of jurisdiction, if the justices proceed to hear the complaint before the expiration of the full period allowed (/). There must be some evidence before the magistrate of the commission of the particular offence charged in the information or complaint, in order to justify a conviction upon it (m). {g) Caudle v. Seymour, I Q. B. 892. (A) MilU V. Collett, 6 Bing. 92. Wind- ham V. Clere, Cro. Eliz. 130; 1 Leon. 187 (0 42 & 43 Vict. c. 49, U) See also 47 & 48 Vict. c. 43. (k) Zawrenson v. Hill, 10 Ir. C. L. B. 186. Seg. v. Scotton, 6 Q. B. 499. In re Perham, 5 H. & N. 30 ; 29 L. J., M. C. 33. (l) Mitehellv. Foster, 12 Ad. &E. 476. (m) Kirkiny. Jmkint, 32 L. J., M. C. ' 1' , CHAP. XI.] JUSTICES OF THE PI-IACE. 699 662 If a person is summoned before a magistrate for an offence under a particular statute, and appears to answer the charge stated in the summons, ho cannot be lawfully convicted on a charge, although an analogous one, under a different statute (//») ; nor, if the evidence fails to substantiato the particular cliarge specified in the summons, can the summons be altered or amended so as to alter the nature of the offence originally charged, and to answer which the party has appeared (n). A magistrate cannot justify a commit- ment for one offence by a conviction for onother and different offence (o) ; but, if the accused party or his solicitor appears before the magistrate, and cross-examines the witnesses, and makes no objection to his proceeding until after the case for the prosecution has closed, he cannot then object to the hearing and adjudication on the ground that no information had been laid, or that the accused had not been duly summoned to answer the particular charge (j)). Magistrates cannot give themselves jurisdiction by voluntarily shutting their eyes to one part of the charge and adapt- ing it to a charge of some other offence, for the purpose of giving themselves jurisdiction (q). Every accused person must, of course, be heard in his own defence before he can lawfully be convicted (/•) . A magistrate is not at liberty to detain a known person to answer a charge not yet made against him ; he ought to have an information regularly before him, that he may be able to judge whether it charges any offence which the person ought .to answer. It may be otherwise in the case of a mere vagabond, who, if he were once allowed to depart from the presence of the magistrate, would, probably, never be seen again (s). In an action against a magistrate for an assault and false im- prisonment, it appeared that the plaintiff had been, summoned, and had appeared before the magistrate to answer a complaint of having unlawfully killed a dog ; that the magistrate proposed an arrangement which was rejected by the plaintiff, upon which the magietrate told him that, unless he paid a certain sum of money, he should convict him in a penalty of that amount, and commit him to prison ; that ha then called in a constable, and ordered him to take the plaintiff outside, and, if the matter was not settled, to. bring him in again, when he would proceed to commit him ; and 141. Sherbom v. Wells, 3 B. & S. 784; 32 L. J., M. C. 179. £vana v. Bottcrill, 3 B. & S. 787 ; 32 L. J., M. C. 60. {««) Reg. V. Briekhall, 33 L. J., M. C. 167. («) Martin v. Pridgeon, 1 El. & El. 77S; 28L. J., M. C. 179. to) Sogers v. Jones, 3 B. & C. 412. (p) Turner v. I\>itmaster-Gen., 6 B. & S. 756 ; 34 L. J,, M. C. U. Meg. v. Hughes, 4 Q. B. D. 614 ; 48 L. J., M. C. 161. (?) In re Thompson, 6 H. & N. 193 ; 30 L. J., M. C. 19. M Cooper v. Wandsworth Board, ^e., 14 C. ~ ""' " 185. B., N. S. 180; 32 L. J., C. P. (») Ld. Tenterden, C. J., R. v. Birnie, 1 Moo. & R. 160 ; 5 G. & F. 206. ^ lOO DUTIES OF PUBLIC 0FFICEH8. [CIIAI'. XI. n t ■ in ii HH 663 that the plaintiff then went out with the cnnstablo and settled the affair by paying a sum of money. It was hold thot the mngistrato was guilty of an assault and false imprisonment ; and was respon- sible in damages, as there was no evidence of any conviction, and he had no right to give the plaintiff into the hands of a constable, in order to drive him into a settlement of the complaint (/). Magistrates have no jurisdiction to convict summarily and impose a fine for an assault, when it is an established fact that a complainant before them does not complain of the assault, and does not intend to give them jurisdiction to deal with it. There- fore, where a person who had been assaulted went before magis- trates to have the assaulting party bound over to keep the peace, and the magistrates, finding that an assault had been committed, proceeded to deal with the assault by summary conviction not- withstanding a protest by the complainant against their deciding on the assault, it was held that the justices had acted without any jurisdiction in the matter, the assault not having been brought before them with a view to their adjudicating upon it, and a rulo for a certiorari to remove and quash the conviction was made absolute, in order that the conviction might be no bar to ulterior proceedings by indictment or by action (?/). Where, however, a complaint has been duly laid before a magistrate, it does not rest with the complainant himself to abandon the charge, or to proceed further with it. Thus, where a complaint of an assault was duly laid before justices, and a summons issued for the appearance of the defendant, and the defendant went and settled the matter with the complainant by paying him a sum of money, and the complainant told one of the justices that the affair was settled, and that he did not intend to prosecute, but the justices nevertheless issued warrants for the apprehension of the parties, and compelled the complainant under the exigency of a warrant to appear and give evidence, and then convicted the defendant, it was held that the justices had not exceeded their authority ; for the original complaint gave them jurisdiction in the matter, and, the complaint having been made before them, they were justified in exercising all the powers vested in them by law for the purpose of enabling them to investigate it, and adjudicate upon it ; and, that it was not competent to the complainant to deprive them of jurisdiction by settling the matter with the accused party {x). Where there is no evidence at all befora justices of the facts necessary to give them jurisdiction, they cannot lawfully adjudicate {t) Bridgett v. Coyney, 1 Man. & R. 215. (m) Reg. V. Deny, 2 L. M. & P. 230 ; 20 L. J., M. C. 189. («) Beg. T. Hawkins, 2 N. R. 62. .V J jii.7.'.5t.) Ex parte Vaughan, L. R., 2 Q. B. 114 ; 36 L. J., M. G. 17 ; 7 B. & S. 902. (/t) Williams y. Adams, 2 B. & S. 312; 31L. J., M. G. 109. ^ CHAP. XI.] JlIflTICEfl OP TITK PKAfJR. roa 666 cannot l)o ouh<0(1 liy Iho tonantV Hottinp up flio litlo of somo third party, undor whom lio claims to liold ; for, as soon as the tenancy is proved to the satisfaclion of tho justico, tho tenant is estopped from dispnfiiij,' the title of his landlord, and no queetion of title can bo raised between them (/). Jiistieofl cannot, of course, give themgelvcs jurisdiction by erroneously and capriciously deciding contrary to ilie trutli upon tho question upon which their jurisdiction depends (;/<). •* Magis- trates," observes tho court, "cannot, as it is often said, give themselves jurisdiction merely by their own afTlrmation of it" (;/). Hut it is obvious that this may have two senses : in the one it is true ; in the other, on sound piinciple and on the best-considered authority, it will bo found untrue. Where tho charge laid before the magistrate does not omount in law to the offence over which the statute gives him jurisdiction, his finding tho party guilty in tho very terms of the statute, would not avail to give him jurisdiction. If, the charge being really insufficient, tho magistrate has misstated it in drawing up the proceedings, so that they appear to be regular, it would be clearly competent to the defendant to show what tho real charge was, and, that appear- ing to be insufiicient, we should quash the conviction. Whenever a charge has been presented to the magistrate over which he has no jurisdiction, he has no right to entertain the question, or com- mence an inquiry into the merits ; and his proceeding to a conclu- sion will not give him jurisdiction. But, where a charge has been well laid before a magistrate, on its face bringing itself within his jurisdiction, he is bound to commence the inquiry. In so doing he undoubtedly acts within his jurisdiction ; but, in the course of the inquiry, evidence being offered for and against the charge, the proper, or the irresistible, conclusion to be drawn may be that the offence has not been committed, and so that the case in one sense was not within the jurisdiction. Now to receive affidavits for the purpose of showing this is clearly in effect to show that the magistrate's decision was wrong if he affirms the charge, and not to show that he acted without jurisdiction ; for they would admit that, in every stage of the inquiry up to the conclusion, he coidd not but have proceeded, and that, if he had come to a different conclusion, his judgment of acquittal would have been a binding judgment, and barred another proceeding for the same offence. The question of jurisdiction does not depend on the truth or falsehood of the charge, but upon its nature; it is determin- (l) Sees V. Davies, 4 C. B., N. S. 56. (m) £eg. t. NmneUy, El. Bl. & £1. 852 ; 27 L. J., M. 0. 261. (n) Welch v. Nash, 8 East, 404. 'ffif 704 DUTIES OF PTTBLIC OFFICERS. [CHAP. XI. pMS i :ii< I 687 able on the commencement, not on the conclusion, of the inquiry" (o). Thus, although an infonuation under the 4 Geo. 4, c. 34 (now repealed), for punishing certain classes of servants who have con- tracted to serve, and have refused to enter upon the service, or who have absented themselves therefrom without leave, or have misc/U- ducted themselves in such service, is good on its face, as showing that there was the requisite oontract to serve, yet it is competent to an accused person to show that there was no evidence before the justice on which he was warranted in coming to the conclusion that there was any contract of service at all, and that there was nothing from which he could legally or reasonably infer that he had any jurisdiction in the matter (p). Where their jurisdiction depends upon whether the objection to the validity of a rate is boud fide or not, if there are facts before the ju8t:!ces tending to show that the objection is not bona fide, the justices are not responsible for an erroneous judgment upon those facts {q). But there must be some reasonable ground before them to warrant them in coming to that conclusion ; if there is no such evidence, they act wholly without jurisdiction, and may become liable in trespass for their acts(;'). "Whenever the defendant, however, submits his case and objections to the decision of the magistrates, and invites them to decide upon them, and makes no objection to their jurisdiction until after they have heard and adjudicated, he is esiopped from afterwards objecting to their decision and the proceedings taken thereon (s). Summary Jurisdiction — Wrongful jiroceedings by justices interested in the matter before them. — A j'lstice of the peace ought never to exe- cute his office in his own case, or in any case in which he is himself personally interested {(), but must cause the offender to be carried before some other justice. " And therefore the Mayor of Hereford was laid by the heels for sitting in judgment where he himself was the complainant, though by the charter he was the sole judge of the court" (m). Although any direct pecuniary interest, however (o) Reg. V. Bolton, 1 Q. B. 72. Thomp- son V. Ingham, 14 Q. B. 718. Ex parte Thompson, 6 H. & N. 193; TO L. J., M. C. 23. In re renny, 7 El. & Bl. 660 ; 26 L. J., Q. B. 225. (p) Bailei/'s ease, 3 El. & Bl. 618 ; 23 L. J., M. C. 161. Efg. v. Dickenson, 7 El. & Bl. 831 ; 26 L. J., M. C. 204. Tedgrxft v. Chcvallier, 8 C. B., N. S. 246; 29 L. J., M. C, 225. Mit v. Kelly, 6 p. & N. 222 ; 30 L. J., M. 0. 35. Craven v. Stubbins, 34 L. J., Ch. 126. (?) Eeg. V. Blackburn, 32 L. J., M. C. 41. (»•) Tease v. Chai/tor, 1 B. & S. 668 ; 3 B. & S. 620; 312 L. .T., M. C. 121. Beg. V. Huntsuorth, 33 L. J., M. C. 131. (>) Beg. V. Salop, 29 L. J., M. C. 39. Some of the above are cases of church rates, for the enforcement of which all compulsory proceedinKB are abo- lished by the 31 & 32 Vict. c. 109, unless they have been made under a Gcatutable authority. {<) Beg. V. AlUn, 4 B. & 8. 915 ; 33 L. J., M. C. 38. B. V. Hoseason, 14 East, 608. (u) Per Holt, C. J., Anon., 1 Salk. 396. Foxham Tithing case, 2 Salic. 607. >: CHAP. 51.] JUSTICES OF THE PEACE. 705 668 small, in the subject of inquiry disqualifies a person from acting as judge, the interest, if not pecuniary, must be substantial, and the mere possibility of bias in favour of one of the parties will not have that effect (x) ; and, if the magistrate has no interest in the matter at the time that the order is made, the fact that he subsequently becomes interested will not invalidate the order (y). By the SO & 31 Vict. c. 115, a justice is not incapable of acting on the trial of an offence under a statute to be put into execution by a municipal corporation, local board of health, improvement commissioners, trustees, or any other local authority, by reason only of his being one of several ratepayers or other class of persons liable, in common with others, to be benefited by any fund, to which the penalty payable for such offence is to be carried, being thereby increased, or to contribute to any rate, «S;c., in diminution of which such penalty will go. If the magistrate, being disqualified by interest or otherwise, remains on the bench and takes any part at all in the proceedings, his presence will vitiate them (s). If he remains, he should give public notice that he is there merely as a spectator, and will not take any part in the adjudication of the matter («). Where magistrates are acting strictly in. the discharge of a public duty in ordering a prosecution to be instituted, and have no private object to serve, they are not disqualified from adjudicating upon the prosecution or complaint which they have themselves directed to be preferred (i). A somewhat analogous case is where they have directed a charge to be brought against the clerk of the peace for misdemeaning himself in his office (within the 1 W. & M. c. 21, s. 6), and have themselves heard the charge and dismissed the clerk (c) ; and, in cases where a contempt of court is supposed to have been committed, it becomes the unfortunate duty of the court to act both as party and judge, and to decide whether it has been treated with contempt (d) . Therefore, where words are spoken in the presence and hearing of a justice of the peace reflecting upon him in the execution of his office : if he is to his face called a rogue and a liar, the justice may make himself both party and judge, and punish the offender immediately (e). So, if he is assaulted, he may at once commit the offender for trial ; or, if he is abused t) his face in the execution of his office, he may commit {t) Reg. V. Rand, L. R., 1 Q. B. 230 ; 35 L. J., M. 0. 167. See Reg. v. Man- chester i- Sheffield Rail. Co., 8 Ad. & E. 417. (y) Reg. v. Siorey Justices, 21 L. J., M. C. 198. (j) Reg. V. Sufolk Justices, 18 Q. B. 416; 21 L. J., M. C. 169. Reg. v. Hertfordshire Justices, 6 Q. B. 756. A. £) Jieg. V. Herefordshire Justices, 2 D. . 600, n. (A) Reg. v. Pettimangin, 4 B. & S. 921 ; 33 L. J., M. 0. 99, n. (c) Wildes V. Russell, L. R., 1 C. P. 722; 35 L. J., M. C. 241. {d) lA. Denman, C. J., in Carus Wil- son's case, 7 Q. B. 1015. {e) R. V. Revel, 1 Str. 421. Z Z ■.,Vk m iii;4 11' ni I', t 706 DUTIES OP PUBLIC OFFICERS. [CHAP. XI. 669 the party, until he finds sureties for his good behaviour (/). If, however, the magistrate himself begins a breach of the peace, he forfeits the protection of the law in the execution of his office (g). Summary jurisdiction — Convictions upon hi/e-laws. — If a corpora- tion or a local board exceed their powers in making a bye-law, a justice exceeds his power in convicting upon it ; and the allowance of the bye-law by the Secretary of State does not prevent the court from granting a certiorari for the purpose of bringing up and quashing the conviction (h). If the validity of a bye-law, and the jurisdiction of a justice to convict upon it. depend upon the exist- ence or non-existence of a particular fact, the justice cannot give himself jurisdiction by finding the existence of the fact, unless there is reasonable evidence before him to support his finding. It is open to the person convicted to show by affidavit that there was no evidence before the justice on which he was warranted in coming to the conclusion tha* the bye-law was valid, and that he had authority to enforce it, because it shows that the justice has exceeded his jurisdiction («) : and, if, iipon the facts proved before the justice, and the circumstances under which the conviction took place, it appears, either that the justice did not determine apon the validity of the bye-law, but thought himself bound to enforce it whether valid or invalid, and the bye-law is invalid, or that the justice came to a wrong conclusion in point of law in determining that the facts before him gave him jurisdiction, the court will correct his mistake and quash the conviction ; for the " magistrate has no power to hear at all, or to convict, except in the case of a valid bye-law" (fc). But, if there are facts before the justice warranting him in coming to the conclusion that he had jurisdiction in the matter, and he adjudicates accordingly, his decision cannot be impugned on the ground that there were other facts before him from which he ought to have drawn a contrary conclusion (/). Summary jurisdiction — Drawing up of convictions and orders. — If the justices convict or make an order against the defendant, a minute or memorandum, thereof must then be made (11 & 12 Yict. c. 43, s. 14), and the conviction or order afterwards drawn up in form, and lodged with the clerk of the peace, to be filed among the records of the quarter sessions (m). Any omission by the clerk of the justices to perform this duty may render the justices liable to f!^# I 1 If) Dalt. Just. c. 173. \g) It. V. Symondt, Ca. temp. Hard- -wioke, 240. (A) Reg. v. Wood, 6 El. & Bl. 49; 8. C, nom. Reg. v. Rote, 24 L. J., M. 0. 130. (0 Bailey's caie, 3 El. & Bl. 618 ; 23 L. J., M. C. 161. Reg. r. Dickinson, 7 El. & Bl. 831 ; 26 L. J., M. 0. 204. (k) Campbell, 0. J., and Crompton, J. , Reg. V. Wood, 5 El. & Bl. 67, 68. (/) Bailey's case, 3 El. & Bl. 61 8 ; 23 L. J., M. C. 161. (m) As to indictable offences dealt with summarily, see 42 & 43 Vict. c. 49. CHAP. XI.] JUSTICES OF THE PEACE. 707 670 have proceedings taken against them {n). The conviction may be drawn up in form at a future time, after it has been acted upon, and may then be exhibited to authenticate the proceeding and protect the magistrate (o). Summary jurisdiction — Enforcing convictions — Warrants of dis- tress. — By the 11 & 12 Vict. o. 43, s. 19, it is enacted that, where a conviction adjudges a pecuniary penalty to be paid, or where an order requires the payment of mt aey, and, by the statute autho- rizing the conviction, or order, such penalty or money is to be levied upon the goods of the defendant by distress and sale thereof, and also in cases where no mode of levying the penalty, &c., is provided, the justice making the conviction or order, or any justice for the same county, &c., may issue a distress- warrant for the levying of the same (p). It is also enacted (sect. 20), that in all oases where a justice shall issue any such warrant of distress, it shall be lawful for him to suffer the defendant to go at large, or verbally, or by a written warrant, to order the defendant to be detained in custody until return be made to such warrant of dis- tress, unless security is given by recognizance or otherwise, to the satisfaction of such justice, for his appearance (j)). ** It is to be remembered," observes Coleridge, J., "that such an imprisonment is not a part of the punishment under the conviction, but is a mere detention until the return of the warrant, in case there should be no distress. It is a power to imprison quia timet extra the punishment ; and such a power should be strictly pursued. Now, assuming that magistrates, acting in the exercise of that power, have detained a party by parol commitment for an indefinite time (the warrant of distress not being returnable on a day certain), there is an excess of jurisdiction " {q). In all cases of commitment of persons to prison, the exact period of imprisonment must be stated on the face of the warrant ; for, "if it is left indefinite, a man may be imprisoned for life" (r). The wearing apparel and bedding of a person and his family, and, to the value of 5/., the tools and implements of his trade may not be distrained (s). If there are no goods, or no sufficient goods to satisfy the dis- tress, oc if the levying of the distress will be more injurious to the defendant or bis family than imprisonment, the defendant, in the case of a 'jonviction or of an order for the payment of a sum of money not a civil debt, may be imprisoned for certain terms pro- {«) In re Hayward, 3 B. & S. 546 ; 32 L. J., M. C. 89. (o) Massey v. Johnson, 12 East, 81. {p) The proviso at the end of this section is repealed, see 47 & 48 Vict. 0.43. (?) Leartj v. Patrick, 15 Q. B. 274. \r) Lord Denman, C. J., Priekeit v. Gratrix, 8 Q. B. 1029. («) The Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), ss. 21, 43. zz2 708 DUTIES OF PUBLIC OFFICERS. [CHAP. XI. p. mi 671 portioned to the amount payable ; but, in the case of an order for the payment of a sum which is to be deemed a civil debt, the defendant can only be imprisoned if he has, or has had since the date of the order, the means to pay, and has neglected or refused to pay, and in such cases he is liable to such imprisonment as may be awarded by a county court under the Debtors Act, 18G9 (t). Where an imprisonment, warrant of justices, and seizure of goods thereunder, are all defended on the ground that there was an adjudication to pay costs, and there is no such adjudication, the warrant is illegal, and the imprisonment and seizure of the goods are wrongful, and an excess of jurisdiction (m). Summari/ jurisdiction — Warrant of commitment. — A commitment by way of punishment, by word of mouth only, without warrant in writing, cannot be supported (x). The commitment should be in writing, under the hand and seal of the justice by whom it is made, and should set forth his office and authority on the face of it, and the time and place at which it is made ; also the cause of the commitment, and the period of. the imprisonment. A commitment for an indefinite period cannot be supported (y). It need not be immediately made out, the detention of the person dming the time necessarily required to make it out being justifiable ; but it should be made out as soon as possible. A commitment is in no respect like a conviction, which is only an entering on parchment the proceedings of a court which have already taken place, like recording a judgment (s) . Summary jurisdiction — Ejceciition of convictions and orders after notice of appeal. — Some statutes giving an appeal against summary convictions expressly stay execution pending the appeal (a). From the 27th section of the 11 & 12 Vict. c. 43, it may be argued that, pending an appeal, justices are not at liberty to grant a warrant of execution, us they are expressly authorized to grant the warrant after the appeal is determined. But sect. 35 enacts that the Act shall not extend to any complaints, orders, or warrants in matters of bastardy, with certain exceptions. The pendency of an appeal, therefore, against an order on a putative father, and the granting of a case for the opinion of the Court of Queen's Bench, as to whether the order ought to be enforced, does not take away the jurisdiction of justices to issue a warrant in execution of the con- viction, and to enforce payment of the money due under the order in the interim ; for, if the putative father could, as a matter of (0 11 & 12 Vict. 0. 43, 88. 21—24 ; 42 & 43 Vict. c. 49, 88. 5, 6, 21 and 36 ; see 44 & 45 Vict. c. 24. (m) Leary v. Falrick, 15 Q. B. 274. {x) Mayhew \. Locke, 7 Taunt. 69. (y) Pnchett v. Gratrix, 8 Q. B. 1029. (2) Hutchinson v. Lowndes, 4 B. & Ad. 121. Leary y. Patrick, supra. (a) Reff. V. Aston, 1 L. M. & P. 491. ; i-. cirAP. XI.] JUSTICES OF THE PEACE. ro9 672 right, entirely escape all liability to contribute to the mainte- nance of the child pending the appeal, he might for three months allow the child to starve and oppress the mother, although ho never meant boud fide to prosecute the appeal. " In a vast majority of cases, however," observes Lord Campbell, " it would be exceed- ingly improper in the justice to grant a warrant after notice of appeal had been given and recognizances entered into, and before the hearing of the appeal, or before the time for hearing it has expired; and, acting from a corrupt motive, he might be liable to an action for maliciously granting it. But I do not think that in granting it he could be said to have acted without jurisdiction ; and, possibly, he might show that he had acted laudably in grant- ing it. It might, on the other hand, be highly improper for the justice to try to enforce the order, when the justices at quarter sessions had expressed a grave doubt as to its validity ; and his doing so might be evidence of malice " (i). Summary jurisdiction — Effect of the conviction. — So long as the conviction remains in force, it cannot be contradicted, nor the facts recorded therein be controverted [c) ; and it is a principle of law that, where justices of the peace have an authority given to them by an Act of Parliament, and they appear to have acted within the jurisdiction so given, and to have done all that they are required by the Act to do to originate their jurisdiction, a con- viction drawn up in due form and remaining in force is a protec- tion in any action brought against them for the act so done, unless they have acted corruptly, and have convicted and granted a warrant maliciously, and without any reasonable and probable cause {d). And now, although the magistrate had no jurisdiction in the matter, and had no legal authority to make the conviction or order, the conviction is nevertheless conclusive, and protects him from an action until it has been quashed. Of the granting of search-uarrants. — Upon a representation to a magistrate that a person has reason to suspect that his property has been stolen and is concealed in some specified place, the magistrate may lawfully issue his warrant to search the place, and to bring the occupier or owner before him. It need not be a positive and direct averment upon oath that the goods are stolen, in order to justify the magistrate in granting his war- rant. If a warrant is issued without due authority on the part of the magistrate, and a house is entered and searched under it, that is a trespass on the part of the magistrate ; and, if a person goes (A) Kendall v. Wilkinson, 4 El. & Bl. 690 ; 24 L. J., M. C. 89. {c) Strickland v. Ward, 7 T. R. 633, n. {d) Batten v. Carew, 3 B. & C. 660. Post, p. 673. IP U . s i Hi : ?5 ^i I ■ill I J l! ( 1 V ! ; : 710 DUTIES OF PUBLIC OFFICERS. [CHAP. XI. 673 before a magistrate, and falsely and malioiously, and without reasonable and probable cause, makes such a representation to a magistrate as induces him to grant a search-warrant, the person so acting is responsible in damages in an action for a malicious pro- secution (e). The power of a justice to grant a search-warrant is now extended to property in, or near, or with respect to which, any oflFence, punishable either upon indictment or summary con- viction by virtue of the Larceny Consolida'ion Act (24 & 25 Vict. 0. 96), has been committed (/). Wrongful nets — Abuse of jiinsdiction. — A justice of the peace who acts corruptly in the discharge of the duties of his office, and uses the power of the law for the purpose of injuring and oppressing those over whom he has authority, and gratifying his own private animosity, is responsible in damages to the parties injured ; but it must be proved that he has acted wrongfully from personal motives of spite or ill-will, or, in legal parlance, that he " has acted maliciously, and without reasonable and probable cause;" for he cannot be made responsible for an erroneous judgment, or for mere mistake, or for ignorance, negligence, or misconduct, not amounting to an abuse of his authority (//). There is a wide distinction between an action against a prosecutor for a malicious prosecution, and an action against a magistrate for a malicious conviction and imprisonment thereun'ler. In the former case, proof that there was in reality no ground for imputing the crime to the plaintiff, shows that the proseoution was instituted without probable cause, and malice may be infeire J. from thence ; but in an action against a magistrate for a malicious con- viction, the question is not whether there was any actual ground for imputing the crime to the plaintiff, but whether, upon the hearing, there appealed to be none. The plaintiff must prove a want of probable cause for the conviction, which he can only do by proving what passed upon the hearing before the magistrate when the conviction took place. The magistrate has nothing to do with the guilt or innocence of the offender, except as they appear from the evidence laid before him. The conviction must be founded on that evidence alone ; and it is impossible to show that there was no probable cause for the conviction without showing what that evidence was. There may be a malicious prosecution without a malicious conviction ; and there may be an unfounded conviction by the magistrate without malice {h). {e) Elsee v. Smith, 1 D. & R. 105. Wyatt V. White, 5 H. & N. 371 ; 29 L. J.,Ex. 193; 4 Inst. 177. (/) 24 & 26 Vict. c. 96, 8. 103. Search- warrants may also issue under certain statutes relating to specific offences. («/) 11 & 12 Vict. c. 44, s. 1. Pease V. Chaytor, 1 B. & S. 658 ; 3 B. & S. 620 ; 32 L. J., M. C. 121. Burlei/ y. Bethune, 6 Taunt. 583. Erie, J., Taylor Y.Nesfteld, 3 El. & Bl. 730 ; 23 L. J., M. 0. 169. (A) Burley v. Bethune, 6 Taunt. 683. CHAP. XI.] JUSTICES OP THE PEACE. 711 674 The question as to whether the magistrate has acted in the discharge of his duty with bona fides, and with reasonable and probable cause, is a question at the trial for the decision of the judge, and not for determination by a jiiry («). Wroudful acts — Absence or excess of jurisdiction. — By the 11 & 12 Vict. 0. 44, s. 2, it is enacted that, for any act done by a justice of the peace in a matter of which by law he has not jurisdiction, or in which he shall have exceeded his jurisdiction, any person injured thereby, or by any act done under any conviction or order made, or warrant issued, by such justice in any such matter, may maintain an action against such justice as he might have done before the passing of the Act, without proving that the act was done maliciously and without reasonable and probable cause {k) ; but no such action shall be brought for anything done under such convic- tion or order, until after the conviction shall have been quashed, either upon appeal or upon application to the Court of Queen's Bench : nor shall any such action be brought for anything done under any warrant which shall have been issued by such justice to procure the appearance of a party before him, and which shall have been followed by a conviction or order in the same matter, until after the conviction or order shall have been quashed ; or if such last-men- tioned warrant shall not have been followed by any such conviction or order, or if it be a warrant upon an information for an alleged indictable offence, nevertheless, if a summons was issued previously to such warrant, and served upon the party, either personally or by leaving the same for him with some person at his last or most usual place of abode, and he did not appear according to the exigency of the summons (/), in such case no action shall be main- tained against such justice for anything done under such warrant. When, therefore, the action is brought in respect of things done without jurisdiction, or in excess of jurisdiction, as where a warrant is made, or an order granted, which the justice had no authority to make or grant, and the warrant or order has been enforced, and any person has been imprisoned or his goods have been seized under it, an action for a trespass is maintainable against the justice {m). Where an information was laid before a justice, upon which he convicted and awarded a penalty and costs, and ordered them to be levied by distress, and so far pursued his jurisdiction, but he then exceeded it, by adding an alternative that the plaintiff should («) Kirhy v. Simpson, 10 Exch. 367 ; 23 L. J., M. C. 165. (A) See Midelton v. Gale, 8 Ad. & E. 155. Pease v. Chaytor, 1 B. & S. 658 ; 3 B. & S. 620 ; 32 L. J., M. C. 121. {pl An appearance by counsel or solici- tor is a sufficient appearance. Bessell v. WiUon, I El. & Bl. 496. (m) Leary v. Patrick, 15 Q. B. 272. Lawrenson y. Hill, 10 Ir. Com. Law Bep. 185. i Bd&iiL,.«i. ■1 F 712 DUTIES OF PUBLIC OFFICEKS. [CIIAP. XI. 675 be put in the stocks in case the penalty and costs were not paid or raised by distress, and the plaintiff's goods were seized under a distress, but the plaintiff was not put in the stocks, and the con- viction was afterwards quashed, and an action was brought against the justice for the distress, it was held that the justice was entitled to the protection afforded by the first section of the statute, and could not be treated as a trespasser. *' It cannot be doubted," it was observed, "that the justice had jurisdiction in everything except the alternative order ; and the action is brought, not for putting the plaintiff in the stocks under it, but for doing that w.^iich the defendant might have justified if ho had drawn up his conviction in proper form. The construction of sect. 2 of the statute must be so controlled by sect. 1 as to be consistent with it; and that is done by so construing sect. 2 as to confine its application to cases in which the cause of action arises from the excess of jurisdiction, as it would have done in this case, if the plaintiff had been put in the stocks, and had brought his action for that "(«). Wrongful acts — Exemption from actions in cases where Justices had a primd facie Jurisdiction. — If under the special powers of particular Acts of Parliament, justices have a jmmd facie jurisdiction to inquire into and adjudicate upon certain matters that have been brought before them, and nothing appears, either on one side or the other, to show any want of jurisdiction, they are exempt from liability in respect of their proceedings in the matter (o). Thus, where an Act of Parliament gave certain magistrates a general jurisdiction over disputes between certain friendly societies and their members, excepting where the rules of the society contained an arbitration clause, and certain disputes were brought before a magistrate, who adjudicated thereon in ignorance of the existence of the arbitration clause in the rules of the society, which deprived him of jurisdiction, it was held that he was not responsible for his want of jurisdiction. *' When a party," it was observed by the court, " relies on an exception from a general law, the burthen is on him to show that his case falls within the exception. If the society had produced before the magistrate the clause in their rules enabling them to refer their disputes to arbitration, the magistrate would have had an opportimity of judging whether he had any jurisdiction or not ; but they omitted to do this, and the magistrate's attention was never called to the denial of his jurisdiction "(/)). (w) Per Coleridge and Erie, JJ., Bar- ton v. Brieknell, 13 Q. B. 393 ; 20 L. J., M. C. 1. Lawvenson v. Hill, 10 Ir. Com. Law Eep. 185. (o) Caldcr v. Halkett, 3 Moo. P. C. 68. Pease v. Chaytor, 1 B. & 8. 668; 3 B. &S. 620; 32L. J, M. C. 121. {p) Fike v. Carter, 3 Bing. 78; 10 Moore, 376. CHAr. XI.] JUSTICES OF THE PEACE. iiz 676 So, if a person is exempted from serving a particular office, and if, on being called before a magistrate to show cause why he refuses to do so, he does not inform the magistrate of the particular ground of his exemption, ho cannot maintain an action against the magistrate who orders proceedings to bo taken against him in consequence of such refusal (17) . In a case that arose on the 20 Geo. 2, c. 19 (now repealed), giving magistrates jurisdiction to determine differences between masters and servants in husbandry, and other labourers, respecting wages (/•), it was held that an action of trespass would not lie against magistrates, acting ixpon.a complaint made to them on oath, by the terms of which it apponrod they had jurisdiction, although the real facts of the case might not have supported such complaint, if such facts were not laid before them at the time by the parfy com- plained against, he having notice of such complaint, and being duly summoned to attend. "The facts stated in the case," observes Lord EUenborough, *' are not stated as facts appearing before the magistrates at the time ; and, in order for the plaintiff to avail himself of them, it should have appeared that the same facts were stated to the magistrates before whom he had notice to appear; for how, otherwise, could ^he magistrates be affected as trespassers, if the facts stated to them upon oath by the com- plainant were facts whereof they had jurisdiction to inquire, and nothing appeared in answer to contradict the first state- ment?" (*). Wrongful acts — Wrongful convictions and orders hy one justice acted upon hy another justice. — By the 11 & 12 Vict. 0. 44, s. 3, it is enacted that, where a conviction or order shall be made by one justice, and a warrant of distress or of commitment shall be granted thereon by some other justice, homl fide and without collu- sion, no action shall be brought against the latter by reason of any defect in such conviction or order, or for any want of jurisdiction in the justice who made the same ; but the action, if maintainable, is to be brought against the justice or justices who made the conviction or order. Wrongful acts — Exemption of justices from actions in respect of warrants of distress for poor-rate. — By the 11 & 12 Vict. c. 44, s. 4, it is enacted that where any poor-rate shall be made, allowed, and published, and a warrant of distress shall issue against the person named and rated therein, no action shall be brought against the justice who shall have granted siich warrant by reason of any {q) Best, C. J., Pike v. Carter, ante, p. 676. {r) See tLe 30 & 31 Viot. c. 141, con- tinued by the 31 & 32 Viot. 0. Ill, both of which are repealed ; see now 38 & 39 Vict. c. 86. (s) Zowtfier V. Radnor {Earl of), 8 East, 113. %i ',i ^.A 714 DUTIES OF PUBLIC OFFICERS. [CHAP. XI. 677 irregularity or defect in the rate, or by reason of such person not being liable to be rated therein. Wron(jful (tcfn — Excntptioii from liability where a defeefiro con- viction or order han been confirmed upon an apjxal. — By the 11 & 12 Vict. c. 44, 8. 6, it is enacted, that in all cases where a warrant of distress or warrant of commitment shall be granted by a justice of the peace upon any conviction or order, which either before or after the granting of such warrant shall be confirmed upon appeal, no action shall bo brought against the justice who granted the warrant for anything which may have been done under the same by reason of any defect in such conviction or order. But it does not follow that, because a plaintiff had a power of appeal and failed to exercise it, he is thereby precluded from having recourse to the ordinary remedy by action to try the right. There is a groat dis- tinction in this respect between cases where there was jurisdic- tion to convict or to make an order and issue a warrant, and the aggrieved party had a ground of appeal against the conviction or order made with jurisdiction, and the case where there was no jurisdiction to convict or to make the order, and so no jurisdiction to issue the warrant. " If, in the first instance, the court has gone beyond its jurisdiction, the act is void. The party aggrieved may, if he pleases, appeal, because excess of jurisdiction is as much a ground of appeal as a merely erroneous decision ; and, if the court of appeal erroneously confirms the act of the oouit below, it may be that the party appealing cannot object to the want of jurisdic- tion in any collateral proceeding. His own act may estop him personally ; but he is not bound to appeal, because he is at liberty to treat the act as void " (t). Wrongful acts — Exercise of discretionary potiers. — By the 11 & 12 Vict. c. 44, s. 4, it is enacted, that in all cases where a discre- tionary power shall be given to a justice of the peace by any Act of Parliament, no action shall be brought against such justice for or by reason of the manner in which he shall have exercised his discretion in the execution of any such power. But, for the jiistice to secure his exemption under this section, it is essential that he should be clothed with a legal authority to do the act concerning which he exercises his discretion. If he has no juris- diction in the matter, he has no valid discretionary power, and is not within the exemption. The magistrate, moreover, must be acting judicially in the exercise of his discretion; for, if he is merely determining upon the propriety or expediency of per- (<) Churchuarderu of Birmingham v. Shaw, 10 Q. B. 880 ; 18 L. J., M. G. 89. Fedley v. Bavia, 10 C. B., N. S. 492 ; 30 L. J., C. P. 379. CHAP. XI.] JUSTICES OP THE TEACE. 715 , 678 forming some mere ministerial function, and raakos a wrong exorcise of his discretion by doing what he has no legal authority to do, he cannot claim thi) statutory exemption. Whore mogistrates, for example, exercise theii* discretion as to the granting or withholding a distress- warrant to enforce payment of a rate, the existence of a valid rate, and a legal liability to pay on tlio jiart of the person distrained upon, are essential to the magistrates' exemption from liability, unless the rate is a poor-rate, and thoy can shelter themselves under that part of sect. 4 of the 11 & 12 Vict. c. 44, which expressly exempts justices from actions in respect of the issue of warrants of distress for poor-rate against persons not liable to pay the rate (»). So, when the discretion exorcised by the magistrate respects the issuing of a distress-warrant to enforce the payment of money ordered to be paid by some third person, the validity of the order, and the legal liability to pay the money, are preliminary conditions to the magistrates having any authority to act at all in the matter {x). Where an Act of Parliament empowered the owners, occupiers, &c,, of abbey-lands to make a rate for certain purposes upon the owners of such lands, and provided that, if any owner who had boon rated should neglect or refuse to pay the rate after demand, then, upon proof thereof before a justice, the same should be levied by distress, the defaulter having been first duly summoned to appear and show cause for his neglect or refusal, and the plaintiff, being rated and refusing to pay, was summoned before the defendant, and denied his liability, but failed to show cause for his refusal to the satis- faction of the defendant, who issued a distress-warrant, under which the plaintiff's goods were seized, and the plaintiff then brought his action for a wrongful seizure, and proved that his land was not abbey-land, and that he was not liable to be rated, and recovered damages, it was held that the defendant could not shelter himself from liability on the ground that he was acting judicially when inquiring into, and determining upon, the facts preliminary to the issue of the warrant. The statute, it was observed, gave the defendant no power to try the question of the plaintiff's claim to exemption from the rate, on the ground that his land was not abbey-land, or to inquire into the validity of the rate, or to adjudicate upon the liability to pay. He was directed to begin by inquiring whether the rated owner had refused to pay, not whether the rate waa valid ; and his inquiry and determination had refer- ence to the discharge of a mere ministerial function, and were not (u) Pedky v. Davis, 10 C. B., N. 8. 492 ; 30 L. J., C. P. 378. AnU, p. 677. (x) Netvbould v. Coltman, 6 Exch. 201 ; 20 L. J., M. C. 149. '16 l)lJTll-:« OF I'UBLIC 0FF1CEK8. [CIIAP. XI. 679 of a judicial character (//). So, whero an Act of Parliament (*i & 3 Vict. 0. 84, 8. 11) provided that, when any contribution from overseers of moneys rociuirod by a board of guardians should bo in arroar, it should bo lawful for justices to summon the overseers to show cause, &o., and, after having heard the oorai.laint, &c., to issue their distress-warrant for the recovery of such contribution, and, a distress-warrant having been issued under the above section, the overseers brought an action of trespass against the justices, it ■was held that, as the statute did not require any conviction, or order, or act of adjudication at all, but simply a warrant of distress for the levying of the sums legally duo, the justices, in hearing and deciding upon the facts which wore to guide them in tho exercise of their discretion as to the issue or refusal of the warrant, wore not acting in tho ilisdiargo of any judicial functions, but wero exercising their discretion respecting tho performance of a mere ministerial duty, and that a valid order from the board of guar- dians, and a legal liability to pay on tho part of the overseers, wero essential to give tho magistrates any jurisdiction at all to act in tho matter (s). Wrongful acts — Dixchnrgc — Liniifafioiis of actiom. — By sect. 8 it is enacted that no action shall be brought against any justice of the peace for anything done by him in the execution of his office, unless tho same be commenced within six calendar months after the act complained of lias been committed. The period of limi- tation runs from the termination, not from the commencement, of the -wrongful act {a). Therefore, when a person has been wrong- fully imprisoned imder an illegal commitment, the time of limi- tation will run from the period of the termination of the imprisonment, and not from the time of the making out of the warrant of commitment (i) ; and, where goods have been sold under an illegal warrant of distress, the time of limitation will run from the period of the sale of tho goods, and not from the time of the original seizure. The seizure is not made absolutely in the first instance, but with a view only to the detention of the goods until the amount ordered to be levied should be paid, and their subsequent sale if it should not be paid, so that the seizure and sale form part of one continued grievance, which distinguishes it from cases where the seizure is for a forfeiture (•). Priority of writs of execution. — The sheriff, as between himself and different execution creditors, is bound to execute all the writs in his hands, giving priority to that writ which is first delivered, to him to be executed, and is responsible to any creditor who has so 686 delivered his writ if he does not, unless the execution of the I (I) Gold V. Strode, Garth. 148. Sfiirlei/ V. Wright, Cro. Jac. 775 ; Bull. N. P. 66. The usual mode of proving a judg- ment of a superior court is by an exa- mined copy. The witness who produces the copy should prove that he examined it with the original record, and that tho latter came from the proper custody. £eid V. Margison, I Camp. 469. If a writ which has been delivered to tho sherifiE to be executed has been returned, and has become matter of record, tho writ and its delivery to tho sheriff may be proved by an examined copy of tho record, without the production of the writ itself. Ramsbottom v. Bxekhurst, 2 M. & 8. 565. Proof that a person has acted as sheriff is primd facie evidence of his being sheriff, without proof of his appointment. Biinbunj v. Mathews, 1 C. & K. 380. (;h) Bijkcv. Duke, 4 Bing. N. C. 203. {«) See Reg. v. Master, L. R., 4 Q. B. 285 ; 38 L. J., M. C. 73. («) Sects. 163—167. Ip) Mason v. Fai/iiter, 1 Q. B. 981. Drown v. Jarvis, 1 M. & W. 704. (7) TFells V. Gurneg, 8 B. & C. 769. (r) Goddard v. Harris, 7 Bing. 320 : 5 M. & P. 122. CHAP. XI.] THE HIGH SHEKIFF. 723 203. Q. B. 981. writ is countermanded (s) ; in which case the writ, whilst the countermand continues, must be considered as not delivered at all to be executed, because the sheriff cannot act upon it. If, after the sheriff has been desired to suspend the execution of a writ, ho receives an order to execute it, this order will not relate back, so as to give the execution of the writ any priority over writs which have been placed in the hands of the sheriff during the period of the suspended execution. The countermand of the execution of the writ is equivalent to its withdrawal ; and it is not until the sheriff receives notice of withdrawal of the countermand, and an order to proceed, that the writ is considered to have been again delivered to him to be executed (/)• Where goods have been seized under a former writ, founded on a judgment fraudulent against a creditor seeking to enforce a subsequent execution, and such goods remain in the hands of the sheriff, or are capable of being seized, the sheriff is bound to seize and sell the goods under the subsequent execution («). No writ oifi.fa. can be executed in any of the palaces belong- ing to the Crown, which is either at that time the residence of the sovereign, or in which there is an intention, and present power, on the part of the Crown, to resume such residence; but, if, although in one sense a royal palace, it has, for many years, been put to uses practically inconsistent with the personal residence of the sovereign, the exemption will cease {/). Writii of execution — Bankruptcy. — By the 46 & 47 Vict. c. 52, s. 45, " (1.) Where a creditor has issued execution against the goods or lands of a debtor, or has attached any debt due to him, he shall not be entitled to retain the benefit of the execution or attachment against the trustee in bankruptcy of the debtor, unless he has completed the execution or attachment before the date of the receiving order, and before notice of the presentation of any bankruptcy petition by or against the debtor, or of the commission of any available act of bankruptcy by the debtor. ** (2.) For the purposes of this Act, an execution against goods is completed by seizure and sale ; an attachment of a debt is com- pleted by receipt of the debt ; and an execution against land is completed by seizure, or, in the case of an equitable interest, by the appointment of a receiver." By sect. 46, " (1.) Where the goods of a debtor are taken in execution, and before the sale thereof notice is served on the sheriff 687 that a receiving order has been made against the debtor, the («) Dennis v. Whelham, L. R., 9 Q, B. 345; 43 L. J., Q. B. 129. (0 Hunt V. Cooper, 12 M. & W. 672. (m) Imray v. Mm/iiay, 11 M. & W. 3 A 2 275. Dennis v. Whetham, supra. (x) Att.-Gen. v. Dakin, L. R., 2 Ex. 2!)0 ; 3 Ex. 288 ; 4 H. L. 338 ; 39 L. J., Ex. 113. 'i If- s3 Si * Ill ' If i ll! IP i liljl •24 DUTIES OF PUBLIC OFFICERS. [CIIAP. XI. sheriff shall, on request, deliver the goods to the official receiver or trustee under the order, but the costs of the execution shall be a charge on the goods so delivered, and the official receiver or trustee may sell the goods or an adequate part thereof for the purpose of satisfying the charge. ** (2.) Where the goods of a debtor are sold under an execution in respect of a judgment for a sum exceeding twenty pounds, the sheriff shall deduct the costs of the execution from the proceeds of sale, and retain the balance for fourteen days, and if within that time notice is sorved on him of a bankruptcy petition having been presented against or by the debtor, and the debtor is adjudged bankrupt thereon or on any other petition of which the sheriff has notice, the sheriff shall pay the balance to the trustee in the bank- ruptcy, who shall be entitled to retain the same as against the execu- tion creditor, but otherwise he shall deal with it as if no notice of the presentation of a bankruptcy petition had been served on him. " {'i.) An execution levied by seizure and sale on the goods of a debtor is not invalid by reason only of its being an act of bank- ruptcy, and a person who purchases the goods in good faith under a sale by the sheriff shall in all cases acquire a good title to them against the trustee in bankruptcy." The notice mentioned in sub-sect. 2 must be served on the sheriff or his then agent for the purpose of receiving such notice ; it is not sufficient to serve it on a bailiff or man in possession (i/). When the bankruptcy happens after seizure but before sale, the sheriff is not entitled to poundage under the words " costs of execution" in sub- sect. (1) (s). Where a sheriff is in possession under several Avrits, some for more and some for less than 20/., and proceeds to sell, the writs are payable in order of priority so long as there are funds to pay ; but if he receives notice of bankruptcy within fourteen days after the sale, only those writs are entitled to be paid which are for less than 20/., and which would have been paid had not bankruptcy intervened (a). Mode of execution of leg(d process. — If a sheriff, by lifting the latch of the outer door of a dwelling-house, or opening the outer door in the way in which it is ordinarily opened by persons going into the house, enters the house of the execution debtor himself for the piu^ose of arresting him or taking his goods, he is justified, if he has reasonable ground to believe that he is there or that his goods are there ; but, if he enters the house of a stranger to make 688 the arrest or the seizure, he is justified only in the event of his finding the execution debtor or his goods in the house (i). If it turns out that the latter is not in the house, or had no property [,/) Ex parte Warren, 15 Q. B. D. 48 ; 63 L. J., Q. B. 418. 54 L. J., Q. B. 20. See sect. 168 as to (a) In re Tearcc, 14 Q. B. D. 966 ; 64 who is a " sheriff." L. J., Q. B. 10. [z) In re Ludmore, 13 Q. B. D. 415; («) J/ornsA v. i/(«r«y, 13 M. & W. 67. r- CHAP. XI.] THE HIGH SHmilFF. 725 there, the sheriff is a trespasser (o), unless the house was entered in hot pursuit after an escape {(f). The house in which the execution debtor resides, /. <>., where he sleeps, may bo considered to be his own house, although ho is not the proprietor thereof, but only a lodger or visitor. "I see no difference," observes Lord Loughborough, *' between a house of which the execution debtor is solely possessed, and a house in which ho resides by the consent of another" (c). Mode of execution — Breaking open the outer door. — In Sennii/ne's case {/) it was resolved — " 1. That the house of every man is to him as his castle and fortress, as well for his defence against injury and violence as for his repose. " 2. That when any house is recovered by any real action, or by ejectment, the sheriff may break the house, and deliver the seisin or possession to the demandant or plaintiff ; for the words of the writ are ^ habere faciuH seininam,' or 'possessionem;^ and, after judgment, it is not the house in right and judgment of law of the tenant or defendant. " 3. That in all cases where the E 'ng is party, the sheriff, if the doors be not open, may break the party's house, either to arrest him or to do other execution of the King's process, if otherwise he cannot enter. But, before he breaks it, he ought to signify the cause of his coming, and to make request to open the doors. "4. That in all cases where the door is open the sheriff may enter the house and do execution, at the suit of any subject, either of the body or the goods ; but that it is not lawful for the sheriff (after request made to open the door and denial made), at the suit of a common person, to break the defendant's house, if the door be not opened, to execute any process at the suit of any subject. "5. That the house of any one is not a castle or privilege but for himself, and shall not extend to protect any person who ilies to his house, or the goods of any other which are brought and con- veyed into his house to prevent a lawful execution, and to escape the ordinary process of law ; for the privilege of his house extends only to him and his family, and to his own proper goods, or to those which are lawfully and without fraud and covin there ; and therefore, in such cases, after denial on request made, the sheriff may break the house" (g). (c) Ratvliffc V. Burton, 3 B. & B. 229. Johnson v. Leigh, 6 Taunt. 215. (rf) Post, p. G89. ((■) Sheers v. Broolcs, 2 H. Bl. 122. (/) 6 Co. 91. \g) Semai/ne'a case, I Smith's L. C, 8th ed., p. 114. The rule is, that in all cases where the sheriff has only a civil process against an inmate of a dwelling- house, even though it is a capias, it is not lawful for him to force his way into the debtor's house to arrest him or any of his family. A man's dwelling-house is his castle: Jfoohr v. Smith, 19 Vt. 151; Jiiilei/ V. yichoh, 12 Pick. (Maes.) 270 ; Oijstcad V. Shedd, 13 Mass. 520. Even the raising of a latch of an outer door ia such force as will justify the use of forco t*) prevent the sheriff from either levying iipon goods or arresting tlie debtor : Curtis v. Hubbard, 1 HiU (N. Y.) 330. I' SI I > I > ' • h M Is,' N- r20 DUTiHS (jr ruuLic ()i'Fici:i{.s. [chai'. xr. 689 Tho principle tlmt every man's liouso is his oastlo does not extend to a barn or outhouse, not connected with a dwelling-house. Therefore tho sheriff may break open tho door of a bam in order to ).0ry an execution (//). ]Io may also break open the outer door of tho house to execute a writ of attachment (/). If the officer, after ho has peaceably obtained entrance through the outer door, and before he can make an actual arrest, is forcibly expelled from tho house, and the outer door fastened against him, he may then break open the outer door and mnko the arrest (k) ; and, when he has once lawfully got inside tho house, he is justified in breaking open the outer door to get out again, if the door is locked, and there is no one within who will op6n the door (/). If the window of a house is open or a pane of glass broken, and the bailiff puts his hand in and touches one for whom he has a warrant, he is thereby his prisoner, and the bailiff may break open the door of the house to come at him (in), or break through the window (n) ; and, if, after the officer has effected an arrest, the debtor breaks loose and escapes into a house, the sheriff, or his officer, may break open the house to retake him, whether the house is tho debtor's ovm. house or the house of a stranger, provided he has given notice of the object of his coming, and has demanded and been refused admission (o). If the sheriff, or his officer, opens the outer door of a house by lifting the latch, or drawing back a sliding bar, in the ordinary way in which persons going into the house open the door, this is not a breaking of the door. " As to the passage," observes Pol- look, C. B., ** in Comyns' Digest, * Execution,' that the sheriff may not open a latch, there is no reference to any authority in support of it. The cases do not support that proposition" (;>). A window which is partly open may be further opened by the sheriff for the purpose of entering (q). Mode of execution — Breahing open of inner doors. — If the sheriff or his officer, gains peaceable entrance at the outer door of a dwelling-house, he may break open an inner door of the house either to seize the person or the goods of the owner of the house, or of a lodger therein (/•) ; and, having entered at the open outer door of the house, he need not demand to have the inner doors m (A) Penton v. Droutie, 1 Sid. 180. (() ILin-ei/ V. Harvcij, 20 Ch. I 044. (X) Aga Kttrboolie Mahomed, 4 Moore, P, C. 239. \r) Piighv. Griffith, 7 Ad. & E. 827. (w) Anon., 7 Mod. 8. Saiidoii v. Jcr- via. El. Bl. & El. 935 ; 28 L. J., Ex. 150. See ante, -p. 147. («) Lloyd V. Sandilands, 8 Taunt. 250 ; 2 Moore, 210. (") Ano>i., Lofffc, 390. [p) Jtyan \. Shilcock, 7 Exch, 77; 21 L. J., Ex. 58. In America it has been held that a sheriff may not lift the latch of a door which is shut. Curtis v. Hub- bard, 1 Hill's Rep. (New York) 330. {q) Crubtree v. Itobiiiton, 15 Q. B. D 312. (r) Lee V. GanscU, 1 Cowp. 1 ; Lofft, 374. CHAP. XI.] TIIK lliail SHERIFF, 727 690 opened to him boforo he breaks them, in order to take goods under a/./r/. (s). Any resistance to the bailiff after he has once entered at the open outer door will be punishable, although the entry may have boon obtained by fraud and deceit (/). Mode o/crcciilion — Illcgalif if of arrest or ttcizitre through iin/air/ul eutrij. — If the original entry into a dwelling-house by a sheriff or his officers was unlawful and an act of trespass, their continuance in the house is unlawful ; and they cannot avail themselves of an entry or possession unlawfully gained to make an arrest (»). If tho sheriff, in making his entry, "has been guilty either of a breach of a positive statute, or of an offence against the common law, such violation of tho law in making the entry causes the possession thereby obtained to be illegal" {x) ; and, if advantage is taken of the unlawful entry to effect an arrest, the court will order the prisoner to bo discharged (//). To break and enter a man's house for the purpose of arresting him "is really," observes Parke, B., "not an abuse of the autho- rity of the writ, but it is executing the authority where the sheriff has none ; like going out of the jurisdiction to execute tho writ. Tho door being open is a condition precedent to executing tho writ in the dwelling-house" (i). As regards the seizure of goods, however, after an unlawful breaking into the house, a different doctrine has prevailed, on the authority of the following case in the Year Book (r/) : — " Catesby comes to the bar, and asks whether a sheriff and his officers breaking into a dwelling-house to execute Q.Ji. fa. do a wrong or not. The judges answer that tho defendants may bring trespass against them, notwithstanding tho f. fa. ; for that will not excuse them for breaking the house, but ' delprisel des biens tantiini.'" " This case," observes Coleridge, J., "is cited in Sema I/no's case {b), as establishing that, if tho sheriff breaks the dwelling-house by force of a Ji. fa., he is a trespasser by the breaking, and yet the execution which ho then doth is good. But it may be doub* )d whether the judges meant anything more in the Year Book than to state generally what af.fa. authorized a sheriff to do ; but assuming that they did, still the dictum there, and that in Scmayne's case, are both purely extrajudicial" (c). Mode of execution — Remaining on the premises an unreasonable time. — The writ of f. fa. authorizes the sheriff, who has entered upon premises for the purpose of making a levy under it, to remain there for such time as is reasonably necessary for the {*) Hutchison v. Birch, 4 Taunt. 618. Lloyd V. Sandilands, 8 Taunt. 250 ; 2 Moore, 210. (<) R. V. Backhouic, Lofft, 61. (u) Hooper v. Lane, 6 H, L. C. 535 ; 27 U J., Q. B. 75, (r) Tinclal, C. J., Newton v. Harland, 1 M. & G. 658. (//) Hodgson v. Towiiina. H Dowl. 410. (:) Kcrbci/ v. Henbi/, 1 M. & W. 341, (rt) 18 Edw. 4, 4a. lb) 6 Co. 92 a, 92 b. (o) ffoofer V. lane, sii^ra, 'iili ; : 4 i'i i: f m I t 1 i (' I ] ) 1 i !i 728 DUTIES OF PUHLIC OFFICERS. [ciIAP. XI. 691 oxocution of the writ ; but if he remains more than a roason- ablo time, ho abuses the legal authority conferred upon him by the (iuoon's writ, and becomes a trespasser, and is in the position of a man who has walked into another person's house without any authority, Tho reasonableness of the time is a question of fact (r/). M() , 692 his (liligonco (w/). Tho same nilo applies if tho creditor would have been in possession but for the fact of tho judgment debtor having prevented him by force (ii). By the 30 & HI Vict. c. 127, s. 4, made perpetual by tho 38 & 30 Vict. c. 31, no execution can bo levied on tho rolling stock or plant of a railway company, if tho lino is open for public traffio (o). Tho 7th section of the first-montionod Act provides that, after tho filing of a scheme of arrangement between tho comimny and its creditors, under sect. (J, tho court may restrain any action against tho company on such terms as it thinks fit ; and tho 9th section provides that, after publication of a notice iu the London Gazette, that the scheme has been filed, no execution, attachment, or other process ogainst the property of the company shall be availiablo without the leave of tho court. Under these sections the court has only an interim power, between tho filing and tho enrolment of a scheme of arrangement, to allow an execution ; but after the enrolment any creditor bound by tho schemo would, it seems, be prevented from issuing execution {j>). Seizure of privileged or profeefed (joodn. — An action is not main- tainable against a sheritT who has seized privileged or protected goods, in obedience to tho comnumds of a writ ; but tho person injured must apply to tho court for an order upon tho sheriff to restore tho goods. Thus, if the sheriff seizes the property of a person, who has obtained an order, from a court of competent jurisdiction, of protection from process, tho remedy is by applica- tion to the court for an order upon tho sheriff to withdraw, and not by action {q). Seizure of the gooih of the wroiirj j)erson. — A sheriff or his officer seizing goods imder a writ of execution is responsible in damages if he takes the goods of the wrong person. " If he takes the goods of a stranger, though tho plaintiff assures him they are the defendant's goods, he is a trespasser ; for he is obliged at his peril to take notice whose the goods are, and for that purpose may im- panel a jury to inquire in whom the property in tho goods is vested (>•), or compel rival claimants to interplead and establish their title" (s). Where, therefore, two persons, being father and son, both had the same name of baptism and surname, and both resided in the same house, and an action was brought against tho {in) In re Great Sliip Co., 10 Jur., N. S. L. J. 3. Iu re rias-ijn- Mhowyii (Joul Co., L. K. , ij 2Cur 4 Eq. 689. e Ch. («) In re London Cotton Co., L. E., 2 iq) Eq. 63. ('■) (o) See In re Cambrian Railways Com- Roll. pany's Scheme, L. R., 3 Ch. 278. T. R. {p) In re Potteries, Shrewsbury ^- North 309. Wales Mil. Co., L. R., 6 Ch. 67 ; 39 (*) ,, Ch. 273. Potteries, Shrewshiiri/ th Wales Jiail. Co. v. .}finor, L. R.', 621 ; 40 L. J., Ch. 685. Hideal V. Fort, 11 Exch. 847. Bao. Abr. Execution, N. 5. 2 Abr. 88. 5.52. Iloherts v. Thomas, 6 Saumhrson v. liaker, 3 Wils. Post, p. 694. •i»ip,fHI||P^i 1141*, ii|i,,IHl»pu^|iW|||iHI,W(WIRPliW"Jl'IP,»'.W linn §\ % 730 DUTIES or I'UnLIC OFFICERS. [CHAl'. XI. ii 693 8on, who sufferod judgment by dofnuU, and a writ of execu- tion was isflucd ftgainst him, under which the shorifT, by mistake, took the goods of the father, it was lield that tlie sheriff was re- sponsible for the consequences of his mistake (f). The sheriff has no right to seize the goods of a stranger in tlie possession of the execution debtor as the ostensible owner («). If a woman, having furniture of her own, cohabit i witli the exoou- tion debtor, and assumes his name, and gives herself out as his wife, and permits him to appear to be the owner of her furniture, this does not give the sheriff any right to seize it under an execu- tion against him (.r) ; and, if the man and woman have actually gone through the form of nuirriage, and are supposed to be man and wife, and the goods have been seized and sold by the sheriff, as the goods of the husband, without any notice or objection, and it afterwards transpires that the marriage was void, and that the goods belonged to the supposed wife before the celebration of the void marriage, the sheriff will be responsible to her in damages for the unlawful seizure (//). The acquiescence of the woman was held to be of no moment, the execution being a proceeding in iinitnm, she having no power to resist, and not having discovered the error. But, where the woman takes an active part in mis- leading the sheriff, and asserts that she is the wife of the execu- tion debtor, knowing the assertion to be untrue, she is then herself the cause of the injury of which she complains, and is estopped from disputing the accuracy of her representation {z) ; and, if the evidence shows that she had given the property to the man with whom she cohabited, and had made him the owner of it, the sheriff will then have a right to seize it {a). As one man's goods cannot be seized by the sheriff to pay another man's debts, it follows that the goods of a testator in the hands of an executor cannot be seized under an execution against the executor to satisfy a judgment debt due from the executor himself in his own right {b) ; but, if a dcvaHtai-it has been com- mitted by the executor, and the goods have been converted to his own use, the executor cannot take advantage of his own wrong, and justify his own misconduct, by saying that the goods are not his, but his testator's (c). U) Jannain v. Hooper, 6 M. & G. 847 ; 7 Sc. N. E. C79 ; 13 L. J., C. P. 63. («) Bauson v. Wood, 3 Taunt. 260. See HiUiard v. Hanson, 21 Ch. D. {x) FJuards v. Biidges, 2 Stark. 396. [y) Glasspoole v. Young, 9 B. & C. 701 ; 4 M. & R. 633. (z) Longford v. Foot, 2 M- & Sc, 349, (rt) Edwards v. Fatrhrother, 2 M. & P. 293. As to the seizure of goods let to hire to the execution debtor, see Tancrcd V. Allgood, 4 H. & N. 444 ; 28 L. J., Ex. 362; post, p. 699. (A) Farr v. Ncuman, 4 T. R. 621. Gaskell v. Marshall, 1 M. & Rob. 132. Fenu-kk v. Lai/roek, 2 Q. B. 110. (c) Quick y.'&tainct, I B. & P. 296. CHAP. XI.] THE HIGH 8HEHIFF. 731 694 An illegal seizuro of goods under void process does not pro- vent the sheriff from afterwards executing a legal warrant. The Bubsoquont valid seizure is in nowiso vitiated by the previous trespass {>). If the execution creditor has personally interfered in making (») 47 & 48 Vict. c. 61, s. 17; aud see County Court Rules, 1886, Order XXXIII. rule 10. (/■■) Fenwick v. Laycock, 2 Q. B. 110. \l) Jlollier V. Laurie, 3 C. 13. 342. (wi) Jfinter v. Larthohmeu), 11 ExcL. 711. (h) Foster V. I'ritchard, 2 H. & N. 151 ; 26 L. J., J«\x. 216. -p- r. !• II if M irWrA &:^»__ ^ ru DUTIES OF rUBLIC OFFICEHS. [CIIAP. XI. 697 tho seizure, and directed the movements of the sheriff, so as to render lilmself liable to an action, the court or a judge has power to interfere for his protection, as well as for tho protection of tho sheriff, and to stay proceedings against him (o). The court will not lend its assistance to the sheriff, where there have been delays, irregularities, or sinister dealings on the part of his officers charged with tljn3 execution of tho process. If a sheriff delays to make application for relief at the request, and for tho interest, of one of tho rival claimants, he will not be protected (p); ho should come promptly to tho court, Avithout exercising any dis- cretion of his own upon the matters in controversy (y). But, if, after he has seized but before he has sold, he receives notice of an adjudication in bankruptcy, and subsequently an order of court is made directing him to make a return to the writ oi fi.fa., he may sell under the authority of such an order, and pay the money into court (/•). There are some old cases in which protection was denied under circumstances in which it would now be conceded (.s). In an interpleader suit the execution creditor may claim property which the execution debtor has disabled himself from claiming; for an estoppel which woiild be binding against the execution debtor in a claim put forward by him, will not bo bind- ing upon the execution creditor or tiio shoriff, who are strangers to the acts of tho execution debtor (/). Seizure of goods — Claims of landlords for rent in arrear. — By the 8 Anne, c. 14, s. 1, it is ena ted, that no goods and diattels upon lands or tenements leased for life or lives, term of years, at will, or otherwise, shall be liable to bo taken by virtue of any execution, unless the party at whose suit the execution is sued out shall, before the removal (jf such goods from off the said premises, pay to the landlord or his bailiff all such sums as shall be due for rent at the time of the taking, not exceeding one year's arrears of such rent (»). If tho rent of tho premises on which the levy is to be made is in arrear, there are no goods out of which the slieriff is bound to levy, until the arrears, not exceeding one year's rent, have been paid to the landlord. The sheriff is not called upon by law to advance tho money to pay the rent, but such advance must be made by the execution creditor ; and, if he neglects to make it after notice of the rent being due, the shoriff cannot be called upon to seize and sell the goods, let their value be what it may (.f ) . (o) Carpenter v. Pearce, 27 L. J., Ex. 143. ( p) Mutton V. Younff, i G. B. 375. (7) Crump V. Bail, 4 0. B. 764. Tiijton V. Hartiiiig, 29 L. J., Cli. 225, (r) Child V. Mmm, L. R., 3 Eq, 806. (.v) .mii V. Froii, 3 n. & N. 821 : 28 L. J., Ex. bl). (() nichardt v. Johnnton, 4 H. & N. 6l>J ; 28 L. J., Ex. a22. (h) FuKlrrv. ('nnlmi, 1 Q. B. 419. (r) Ciichcr ■>■. ?.[!(!nt, the sheriff must withdraw (//) ; and ho may bo restrained by injunction from selling tho landlord's fixtures (z). If tho slierilf has given notico to tho execution creditor of tho claim of rent, and tho latter assents to the pro- ceedings of the sheriff in respect thereof, he cannot afterwards turn round and complain of what ho haw himself sanctioned, although both ho and tho sheriff may have been deceived, or have acted under a misapprehension, or taken some erroneous view of the matter {(i) . If the landlord or his agent accepts an undertaking from the sheriff or his officer to pay tlie rout duo, and consejits to the removal of the goods, ho waives tlio benefit of the statute, and cannot afterwards sue thereon. His remedy in such a case is upon the undertaking {b). A trustee in whom the legal estate in reversion is vested may be the landlord within tho meaning ( f the statute (c). To entitle the landlord to the year's rent, there must be an existing tenancy [d) at an ascertained rent at the time (r), and the execution must not be an execution put in by, or at the instance of, the landlord himself (/). The statute dojs not extend to a ground rent due to the superior landlord ((/), nor to goods seized by the sheriff and conveyed by bill of sale to the execution creditor, but not removed from the demised premises, the landlord's right to distrain such goods not being taken away (//). This right of the lanllord to a year's rent is confined to execu- tions upon judgments (/; and private extents, and does not extend to prerogative process, such as an extent in chief, or an extent in aid(/^). Seizure of b. 24. (c) Cuhier V. Specr, 2 B. & B. G7 ; 4 Moore, 473. (d) Cux V. Leigh, 1,. E., 9 Q. B. 333 ; 43 L, J., Q. B. 123. (e) JIodi/soH V. Oascoigne, 5 B. & Aid. 88. (/) Taylor v. Lattyon, 6 Bing. 63G ; 4 M. ifc P 31C. Lio V. Lopes, 15 East, 230. (9) (/') 1001; stead, L. Gl (0 413. 831. BeiDieCs case, '2 Rtr. 730. Smaltman v. Pollard, G M. & G. 7 So. N. E. Oil. White v. Bin- 13C. B. 304 ; 22 L. J., C. P. 115. lira'idling v. Barriiigton, 9 D. & 7. R. ■■ Southerbi/, Bunb. '>. J'Hobs V. jUumphrei/, 2 Or. & M, B). If he sells goods for much less than they ought to have been sold for, or does not take due and proper care in selling to the best advantap'e, or if he seizes or sells goods of much greater value than would suiKce to satisfy the execution, poundage, and expenses, he will be responsible in damages to the party damnified (s). Seizure of goods — ExecufionH levied on the propcrfi/ of han^n'upt traders. — The 4th section of the Bankruptcy Act, 1883, provid3s that any execution levied by seizure and sale of the debtor's gocu"-. unui'. ]:;«, • ^fn '"'1 an action in any court, or in any civil proceeding ill l"ne High I' vrt, shall be an act of bankruptcy; and tlie 4Gth sec^K) pvovidi' n at the sheriff shall in such cases retain the prcc-? ^;^ jf '-'^3 suiii in his hands for a period of fourteen days, in trust to r?tiy them over to the tnistee in bankruptcy, if a notice ()■) ('hii^„>i ni V. iV'<'-. M Q. B. 621 ; 19 L. J., Q. B. 239. (()) Taucred v. Alii/ood, 4 It, t T'^. 444 ; 28 L. J., Ex. 3G2. ip) Sneary v. Ahdy, 1 Q. B. D. 293 ; 45 L. J., Q. B. 803. (7) j'Jx parte Browning, 8 Cli D. 596; 17 L. J.. Bk. 9(5. (>■) Pitcher V. King, ;' Q. B. 767. («) Gawler v. ('haplin. 2 Exch. 606. MiiUct V. Chailis, 16 Q. B. 239. CHAP. XI.] THE HIGH SHERIFF. 737 700 of a bankruptcy petition is presented within that time (t). The effect of these two sections is that, although by the first section the seizure and sale are an act of bankruptcy, yet the sheriff is protected in selling and the purchaser in purchasing the goods seized ; and, if notice of a petition is presented within fourteen days, the proceeds will belong to the trustee ; but, if no petition is presented within that time, the proceeds will belong to the exe- cution creditor («). Where the creditors of the debtor preferred to accept a composition under sect. 12G of the former Act, the execu- tion creditor was held entitled to the proceeds of the execution (r) . If, notwithstanding notice of the presentation of a petition, the sheriff pays the proceeds to the execution creditor, he will be liable to pay tliem over again to the trustee. If the goods remain unsold in the hands of the sheriff at the time of the appointment of the trustee in bankruptcy, ho is entitled to them as against the execution creditor (y). But a resolution to accept a composition has no re- trospective effect ; and, tlierefore, where an execution has been levied by seizure between the filing of the petition and the resolu- tion, the creditor is entitled to proceed with the execution not- withstanding the passing of the resolution (z). The 87th section of the old Act applied, if the levy was for a sum exceeding 50/., altliough part of that sum might be the costs of the execution («). But an execiition creditor who had sued for a debt exceeding 50/. might abandon part of his claim, and sign judgment for a sum less than 50/., so as to avoid the operation of the section (b) ; and, if he had signed judgment for more than 50/., he might also avoid the operation of the section by issuing execution (c), or by selling (d), for less than that amount. The present Act makes the amount 20/. (e), and the sales are to be by public auction (/). Arrest of a debtor (g). — The law requires the presence of tl . D. 596 ; {tj Ex parte Key, L. R., 10 Eq. 432 ; 39 L. J., Pk. 28. This section is a re- enactment of the "24 & 25 Vict. c. 134, 8. 73. boo WoottlioHse V. Jtfttrrai/, L. R., 4 Q. B. 27 ; 38 L. .J., Q. B. 28. («) Rr parte Villars, L. R., 9 Ch. 432 ; 43 L. J., Bk. 7^1. Ex parte James, L. R., 9 Ch. G09 ; 43 L. J., Bk. 107. (i) Ex parte Shcrif of Mhldlesex, L. R., 12 Eq. 207. ((/) Ex parte Rayner, L. R., 7 Ch. 325; 41 L. J., Bk. 26. {z) Ex parte Jones, L. R., 10 Ch. G63 ; 44 L. J., Bk. 124. («) Ex parte lArerpool Loan Co., L. R., 7 Ch. 732 ; 42 L. J.. Bk. 14. Howes V. YoHUff, 1 Ex. D. 146; 45 L. J., Ex. 499. /;( re Gruhb, 4 Ch. D. 521 ; 5 Ch. P. 375 ; 46 L. J., Bk. 103. («) Ex parte Itcya, 6 Ch. D. 332; 40 L. J., Bk. 122. {e) Ex parte Berthier, 7 Ch. D. 882 ; 47 L. J., Bk. 64. (rf) Taruer v. liridqett, 8 Q. B. D. 392 ; 51 L. J., Q. B. 377. {c) Sect. 46. (/) Sect. 145. {g) Imprisoiuncnt for debt is, with few exceptions, abolisliod by the Debtors Aot, 1869 (32 & 33 Viut. c. 62). The old cases are, however, rotuined iu the text as a guide for the practice under orders of committal. After the com- mencement of the Bankruptcy Act, IHrtll, no person can bo nrresteil upon mcHno process in any action ; but where a plaintiff can show ho lias a good cause of HCiion above 50/., and tint the defen- a I) Hi i 1% 738 DUTIES OF PUBLIC OFFICERS. [CHAP. XI. 701 responsible officer to control the execution of the writ. Where an arrest was made under a ca. sa. by a bailiff to whom the warrant was not addressed, in the absence of the officer to whom it was addressed, it was held that the arrest was irregular, and that the defendant was entitled to be discharged out of custody, and to maintain an action for wrongful imprisonment against the bailiff and the sheriff, unless the court imposed upon him terms prohibit- ing him from bringing an action (/*). Where a gentleman, who had obtained a warrant directed to a sheriff's officer to arrest his debtor, struck out the officer's name and inserted his own in its stead, and the gentleman was shot by the debtor whilst he was endeavouring to arrest liim, it was held to bo no murder, as the arrest was illegal, not having been effected by the officer named in the warrant (/). Arrest of the tcrong jiersoH. — If the sheriff's officer, by mistake or through false information arrested the wrong party, the sheriff was responsible for the mistake, unless the person arrested was himself instrumental in giving false information to the sheriff, or brought about his imprisonment by his own misrepresentation (A). If the plaintiff had represented himself to be the person against whom the process had been issued, and was arrested in consequence of that information, ho was estopped, as regarded that imprisonment, from denying that he was the right person ; but after lie had given notice of the real state of facts to the officers, and given them a fair opportunity of inquiry, the further detention was unlawful (/). It was held that it did not lift in the sheriff's mouth to say that he arrested A, sued undiT the name of B, although A was in fact unl'VOtl with the writ of summons issued against li, upon whicli service iht» aolion had proceeded to judgment (;h). Arrest of the right person under a icrontj name. — If there was no mistake as to the person of the debtor, if liis idotitity was csta- blislicd, but tliere was a misnomer, oitlicr from the debtor's having himself given a wrong name, or from his having suffered judgment to be obtained against him in the Avrong name, he was deemed to be known as well by his assumed name as by his reid name, and he had no ground to object to the proceedings against him («). If he dant is about to quit England, a judge may order the defendant to be arrcHted and imprisoned until he gives security (sect. 6 of Debtors Act, 1 809) ; or a debtor may be arrested where ho is about to abscond or to remove his goods, or if he fails to attend his examination (sect. 25 of Bankruptcy Act, 1883). (/*) Ehodis V. Hull, 26 L. J., Ex. 265. Gregory v. Cotterell, 5 El. & Bl. 671 ; 25 L. J., Q. B. 38. (i) Konyon, C. J., Hoiisin v, Barroiv, T. R. 123. Ui) Davies v. Jenkim, 11 M. & W. 75o. Diinston v. Faterson, 2 C. B., N. S. 495; 26 L. J., C. P. 268. (l) .Viimton V. Paterson, 2 C. B,, N. S. 495 ; 26 L. J., C. P. 268. (»i) KeUyy. Laurence, 3 H. & C. 1 ; 33 L. J., Ex. 197. («) Price V. Harwood, 3 Campb. 108. Walker v. Willoughhii, 6 Taunt. 530. CHAP. XI.] THE HIGH SHERIFF. 739 702 had been sued hy a wrong name, and suffered judgment to go against him without attempting to rectify the mistake, ho could not afterwards, when execution had been issued against him in the wrong name, contend that he was not the person whom the sheriff or his officer was directed to arrest (o). Arrest under one of several u-ritn — InciirnhiHtif of a wrongful imprisonment. — Where an arrest had been made on a valid writ, the sheriff might detain the person arrested on any number of valid writs which he had at the time against such person, or which afterwards reached him ; but, if the sheriff made the arrest on a forged or a feigned writ, or a writ which had never been sealed or stamped, and which was therefore invalid, this gave him no right to detain the party on any otln r valid writs which might be at that time in his hands; for the sheriff could not avail himself of a custody brought about by illegal means to execute the other writs ; and, if the sheriff knew, or ought to have known, that the writ under which he arrested was void, and nevertheless made the arrest, and so deprived himsolt of the power of oxooutiug olluU' valid vrvits in his hands, ho was responsible for tnilpablo negli- gence and brcaoh of duty. If an arrest was made on a Simday, or in a way not authorizinl by hvAv, the sheriff could not aftnv- wards make that valid by detaining (ho person imder a legal writ, but must first have given him an opportunity of going nt liugis and then have executed the legal writ. But (luit was not the case wi 23 VMST MAIN STRSCT WIBSTIR,N.Y. 14SM (716) •79-4503 '^ THBP 1 vV i; 'I 744 DUTIES OF PUBLIC OFFICKKS. [C'HA*'. XI. I ; 1 1 i 707 sheriff returns that he has seized certain goods and chattels, he ought to specify their value, and not return that their value is to him unknown (b) . A reasonable degree of certainty in {he language of the return is sufficient. The sheriff Avill not be allowed, in an action against him for a false return, to defend himself by putting a construction on his own return which, although making it true in fact, will make it bad in law, when it admits of another constructioii which will make it good (c). Extortion. — By the 29 Eli^. c. 4, s. 1, it is enacted, that it shall not be lawful for any sheriff, under-sheriff, bailiff, &c., nor for any of their officers, deputies, &c., by reason or colour of their offices, to receive or take, for the serving or executing any extent or execu- tion, more consideration or recompence than is by that Act limited and appointed, upon pain that every sheriff, under-sheriff, &g., their officers, &c., who shall directly or indirectly do the contrary, shall forfeit to the party grieved treble damages, and pay a penalty as therein mentioned ; but the Act is not to extend to fees taken for executions within any city or town corporate. The 7 Will. 4 & 1 Vict. c. 55, further enacts, that it shall be lawful for sheriffs and their officers to receive such fees, and no more, as shall be allowed by the taxing officers of the courts of Westminster under the sanction of the judges, and that any sheriff or officer receiving any fee or gratuity greater than is allowed, shall be guilty of a contempt of court, and punishable accordingly. By the 5 & 6 Yict. c. 98, s. 31, it io enacted, that no poundage shall be payable to sheriffs, bailiffs, and others, for taking the body of any person in execution {(I) ; but there shall be payable to tl i sheriff, or other person having the return of writs, upon every such execution against the body, such fees only as shall be allowed to be taken under the 7 Will. 4 «& 1 Vict. c. 55, The sheriff still continues entitled to his poundage under the statute of Elizabeth, on an execution against the goods of the debtor, and also to any addi- tional fee that may be allowed by the judges under the 7 Will. 4 & 1 Vict., and to no more. li his officer takes more, the sheriff' is guilty of extortion, and is liable to an action for treble damages (e). Breach of duty — Damages recoverable. — Whenever it has been proved that the sheriff owed a duty to the plaintiff, and that there has been a breach of that duty, damages are recoverable in respect of any actual pecuniary damage sus- (A) Barton v. Gill, 12 M. & W. 311. (c) Eeynolds v. Harford, 7 M. & G. 449 ; 8 Sc. N. R. 239. id) Hayley v. Backet, 5 M. & W. 620. {e) Wrightup v. Grcnacre, 10 Q. B. 12. Filkitigton v. Cooke, 16 M. & W. 615. Woodgate v. KnatchbuU, 2 T. R. 155. CHAr. XI.] THE HIGH SHERIFF. 745 shall 708 tained by the plaintiff. But in cases oifi.fa., although ^^rmti facie the measure of damages is the value of the goods which might have been taken, yet it is for the jury to say under all the circumstances, whether, if the execution had been levied, the plaintiff would have derived any benefit from it ; as, for instance, if the other creditors of the execution debtor were in a position to make him bankrupt (/). Nor will the plaintiff in such a case be entitled to nominal damages (/). If the sheriff has improperly delayed the execution of a writ, and the plaintiff has been put to expense in trying to have the writ executed, he may be entitled to recover these expenses as part of the damages [g). In an action against a sheriff for not selling the execution debtor's share in chattels, in which he was jointly interested with another person. Lord Ellenborough said to the jury, " I cannot lay down any measure for your assessment of damages short of half the value. In giving any other you will take a leap in the dark. Some purchasers might think the value depreciated by the co-partnershij), others might not regard the circumstance" [h). In an action against a sheriff or his officer for the wrongful taking of goods, the plaintiff, if he recovers a verdict, is entitled to the full value of the goods. It is not competent for the sheriff to say as to part of it, " I have paid rent ; " for, being a wrong- doer, ho had no light to take upon himself to appiy the proceeds of the wrongful sale (/). So, in an action against a sheriff for taking the plaintiff's goods under process upon a regular judg- ment, but in a place to which the process did not extend, the plaintiff is entitled to recover the whole value of the goods, and not merely the damage he has sustained by their being taken in a wrong place (/•). Whenever a public officer has wrongfully seized and detained goods from the owner, the latter is entitled to recover all the loss resulting from the wrongful act, so that, if the pro- perty detained has fallen in value in the market, the plaintiff is entitled to add the amount of that to the other damage he has sustained (/). But, if a sheriff takes goods in execution after an act of bankruptcy, and sells them, the jury may, in an aotion by the trustee in bankruptcy for the unlawfid taking, allow to the sheriff the expenses of the sale, if they think the trustee must have sold the goods if they had not been sold by the sheriff (m). If goods wMch have been let to hire to an execution debtor have (/) HobsoH V. ThdUison, L. R., 2 Q. B. C42 ; 36 L. J., Q. B. 302. {g) Mason v. I'airnter, 1 Q. B. 974. (A) Ti/ler v. Leeds {Duke of), 2 Stark. 222. (i) White V. Bimtead, 13 C. B. 308 ; 22 L. J., C. P. 115. {k) Soicell V. Champion, 6 Ad. & E. 407. (/) Barrow v. Arnaud, 8 Q. B. 609. («») Clark V. Nichohon, 6 C. & P. 712 : 1 C. M. & R. 724. T7 iir 'yw^w^^'Siwy 746 DUTIES OF PUBLIC OFFICERS. [CHAP. XI. Bit' «' i 709 been seized and sold by the sherifF, under a writ of ^. fa. against the debtor, the sheriff cannot be sued by the owner of the goods, unless he has sustained some actual damage by the act of the sheriff (»). If a sheriff or his oflficer threatens to make a Lvy on goods which belong to the plaintiff, and the latter, in order to prevent his goods from being seized and sold, pays a sum of money to such sheriff or officer, he is entitled to recover back the money on proving that the sheriff had no right to make the levy or seize the goods he threatened to seize (o). In actions for unlawfully removing goods without paying rent due to the landlord, the damages recoverable by the latter are not limited to the amount realised by the sheriff on the sale of the goods, but the landlord may recover the actual damage sustained by him from the sheriff's neglect of duty, whatever that may be (p). Breach of duty — Exemplanj damages, — Where trespasses of a serious nature have been committed by officers of the law under colour of legal process, exemplary damages are recoverable. Violent and illegal conduct on the part of officers charged with the execu- tion of legal process " is calculated to lead to dangerous conflicts ; and, where it is proved to the satisfaction of a jury to have taken place, the proper amount of damages to be awarded must depend so much upon the general circumstances that it is very difficult to discover any standard by which to measure the amount " {q) ; and the court will not interfere, on behalf of the sheriff or his officers, with the constitutional functions of the jury in assessing the damages, althouo^h it may do so, if the defendant making the application, and who is jointly sued with the sheriff, was not im- plicated in the aggravations justifying the amount of damages as against the sheriff (r). Breach of duty — Itccovery of treble damages for extortion. — If the plaintiff, in an action against a sheriff for extortion, frames his declaration on the statute of Elizabeth (s), for the recovery of treble damages, the jury shoiJd be asked to assess the actual damage sustained, and the finding should be entered upon the record as the actual damage, so as to entitle the plaintiff to judgment for troble the amount found by the jury (t). Responsibility for his officers. — The high sheriff may be respon- (h) Tancred v. AUgood, 4 H. & N. 438 ; 28 L. J., Ex. 362. . (o) Valpy V. Manlcij, 1 C. B. 602. \p) Foster v. Hilton, 1 Dowl. P. C. 38. Calvert v. Joliffe, 2 B. & Ad. 421. (?) Brunswick (Duke of) v. Slowman, 8 C. B. 331. (r) Gregori/ v. Cotterell, 1 El. & Bl, 369 ; 22 L. J., Q. B. 217. («) Ante, p. 707. It) Ante, p. 85. Buckle v. Bctvei, 4 B. & C. 154. '^wm^ ^f^jjw^fnrawswrwariwp^ CHAP. XI.] THE HIGH SHERIFF. 747 710 Bible for the acts of the under-sheriff in tlie execution of the duties of his office, as he is the general officer of t)ie sheriff ; but the bailiff is not the general officer of the sheriff. The bailiff gives a bond to the sheriff to execute such warrants as shall be directed to him ; and, when a warrant is given to him, he becomes the special officer of the sheriff for the execution of the particular warrant ; and the sheriff is responsible for what he does in the execution thereof ; but he is not responsible when the act done by the officer is not done in the execution of a warrant (»), or is done in the execution of a warrant improperly issued by the under-sheriff without having received a writ upon which it purports to be founded (x). If the sheriff takes the fruits of an execution levied by the officer, and ratifies and adopts his acts, he recognizes him as his authorized agent in the particular transaction, and will be responsible accordingly (i/). The liability of the sheriff, in case of mistake or misconduct on the part of his officer, is confined to cases where there is a misdoing of something wliich the sheriff commands him to do. («) Littledale, J., Crowder v. Lo)iff, 8 B. & C. 605. J)rn/,e v. Si/kes, 7 T. R. lie. The officer should bo subpoonaed to produce the original warrant under •whicli he acted ; and, if it is improperly withheld after notice to produce it, secondary evidence may bo given of its contenta. J)ra/:e v. Si/ke.i, 7 T. R. 113. Minshull V. Lloyd, 2 M. & W. 458. If the warrant has been returned by the ofiBccr to the under-sheriff, notice should be given to the latter, or to the solicitor of the sheriff, to produce it, if the sheriff is still in office. 'J'aplin v. Atli/, 3 Bing. IGG. If the defendant has gone out of office, and the warrant has been sent to the persons who acted as his London agents whilst he was in office, and who are also his solicitors on the record, notice to them to produce the warrant is sufficient to entitle the plaintiff to give secondary evidence of its contents. Hitter v. Ilimell, 2 H. & N. 8G7. If it is proved that by the ordinary course of business in the under-sheriff's office the name of the officer who is to execute the writ is indorsed on the process, and the writ so indorsed is returned and filed, and the plaintiff offers in evidence a writ with the name of a bailiff indorsed upon it, and proves that the indorsement was made at the under-sheriff's office, or was made before it got there, and was after- wards adopted there, it will be pi-imd facie evidence that the person named in the indorsement was the person autho- rized by the sheriff to execute the writ ; for, if the warrant was granted to a dif- ferent officer, the sheriff has the means of proving it. Scott v. Marshall, 2 Cr; & Jerv. 242. Tealby v. Gaacoigne, 2 Stark, 202. But the mere production of the writ and indorsement, without proof that the indorsement was made in tho sheriff's office, or adopted by the sheriff, will not be sufficient to implicate the sheriff. Hill v. Sheriff of Middlesex, 7 Taunt. 8. The statements and declara- tions of an under-sheriff are no evidence to charge the sheriff, unless they accom- pany some official act, or unless they tend to charge himself, he being in truth the real party in the cause. Snoicball v. Goodricke, 4 B. & Ad. 543. Wliat a bailiff says in a general conversation with any indifferent person, certainly is not evidence against the sheriff ; but decla- rations made by him in the course of the execution of a writ to parties interested in making the inquiry, are evidence against the sheriff in the particular matter to which they relate. North V. Miles, 1 Campb. 390. Jacobs v, Humphrey, 2 Cr. & M. 414. If tho plaintiff', in order to prove his case against the sheriff', puts in evidence the warrant from the sheriff' to his officer, he does not thereby make the recital of tho writ in the warrant to the sheriff' evidence for the latter of the writ, and dispense with the necessity of proof of it by the sheriff. IFhite v. Morris (11 C. B. 1033 ; 21 L. J., C, P. 185), overruling Bessey V. Windham, 6 Q. B. 166. (j) Gibbins v. PhUlips, 7 B. & C. 635, note. The onus of establishing this de- fence is on the sheriff. Ibid. [y) Martin v. Bell, 1 Stark. 416, Jones V. Wood, 3 Campb. 228, Wood- gate V, KnatckbuU, 2 T, R, 165. W" T 'i 5i < \ i ll r48 DUTIES or rruLic officeks. [chap. xi. 711 If tho sheriff is sued for a misfeasance of tlie officer, it is no answer for him to eay that his command was not obeyed : he is still liable, provided tho thing done is something which, by the com- mand or under the authority of the sherifF, the officer was bound to do (s). If a sheriff, acting under a fi.fn., issues his warrant to his officer, directing him to levy a ce.-tain sum on the goods and chattels of the debtor in tlie usual form, and the officer arrestb the debtor instead of levying on the goods, the sheriff will be respon- sible in damages for the mistake, although the sheriff never directed or authorized him to make the arrest (a), tho case of a sheriff differing in this respect from the liability of an ordinary principal for tho acts of an agent who does not pursue tho autho- rity committed to him. But, if the officer derives his authority for what he does from some third party, and not from the sheriff (i), or if he is not acting in tho execution of any process directed to him by the sheriff to be executed, the sheriff is no party to his acts, and is not responsible for what he does. Thus, where an execution debtor arrested under a ca. m., paid the debt and costs to the sheriff's officer to obtain his discharge, and the sheriff's officer failed to pay over the money to the execution creditor, in conse- quence whereof the debtor was a second time arrested under a fresh writ upon the same judgment, it was held that the sheriff was not liable to the debtor for the default of his officer in not paying over the money, as it was no part of the duty of the sheriff or his officer to receive the money. Such a transaction is in the nature of a private arrangement between the debtor and the officer; and the debtor must resort to the officer, who is responsible to him for the non-payment of the money, like any other person who has received a sum of money to be paid to another, and has made default in so doing {c). llcsponsibiUf If for his officers — Execution of writs by special bailiffs. — If the sheriff, at the request of the person suing out the writ or his solicitor, appoints a special bailiff for the execution of it, the sheriff is not then liable for the acts of the officer so appointed (rf). When, however, the execution of the Avrit is not expressly taken out of the hands of the sheriff, if there is a mere request that a particular officer may be employed in the execution of it, this does not constitute that officer a special bailiff of the person making the request (e). So, if the debtor interferes with (z) Smith V. Pritchard, 8 C. B. 588. (a) Smart v. Hiitton, 8 Ad. & E. 568, n. Maphael v. Goodman, ib. 565. Gregory v. Cotterell, 5 El. & Bl. 686; 25 L. J., Q. B. 38. {b) Cook V. Palmer, 6 B. & C. 742. (f) Woods V. Finnis, 7 Exch. 372. (rf) Ford V. Lcche, 6 Ad. & E. 706. Boc Y. Trijc, 5 Bing. N. C. 673 ; 7 Sc. 704. (<■) Alderson v. Davenport, 13 M. &W. 42. Corbet v. Brown, 6 Dowl. 794. CHAP. XI.] Tin: HIGH SHEKIFF. r49 712 the officer, altliougli lie will thus relieve the sheriff from re- sponsibility as to those matters in which he has interfered, the sheriff will not thereby be relieved from responsibility as to matters in which the debtor has not interfered (./' ) . Jtcfiponsibilifi/ of the execution ereditor for the acts of the nherlff and his offiecrs. — If the sheriff, by inadvertence or mistake, enters the house and seizes the goods of the wronj^ person, in the execu- tion of legal process, ail persons, whether plaintiffs, solicitors in the action, or strangers, who interfere in any way, by giving directions or assistance are liable ; for every person who procures or directs the commission of an act of trespass is as much responsible for the injury as the person who actually commits it ; but a simple intimation or direction to the officer that he is not to be prevented by an adverse claim from seizing the goods found in the dwelling-house of the execution debtor, will not render the person interfering to such an extent only, responsible for a wrongful seizure by the bailiff (//). Sheriffs' officers making an arrest are not the agents or bailiffs of the plaintiff for whose benefit the writ is issued; and, if they arrest the wrong person, the plaintiff in the action is not re- sponsible for their misconduct, unless he has personally inter- fered, and has superintended or directed the movements of the sheriff or his officers (//). If the plaintiff in an action does no more than set the court in motion, he is no trespasser, notwithstanding that such court sliould, on his motion, do an act of trespass by its officers (/) ; and a solicitor who merely delivers a ■\viit of execution to the sheriff, and does not take upon himself to give ■wrong directions, and does not, by word or act, induce the officer to seize the wrong person, is not responsible for the mistakes of the officer and for a trespass committed by the latter in seizing the goods of such person, or seizing beyond the limits of his bailiwick, although he believes that the officer is about to go wrong and to exceed his duty (A). If the solicitor, by the indorsement on the writ, gives wrong directions to the sheriff or his officers, and thereby causes them to seize the goods of the wrong person, the client is responsible for the act of the solicitor (/). But the client is not responsible for wrong directions given by his solicitor to the sheriff otherwise than by indorsement on the writ (;«) . If acts of (/) JFrifffit V. Cliild, L. E., 1 Ex. 358 ; 35 L. J., Ex. 209. Ig) Cromhatv v. Chapman, 7 II. & N. 911; 31 L. J.,Ex. 277. (h) Wihon v. Tummoit, 6 M. & G. 244; 6 Sc. N. R. 906. Walli'i/ v. M'Connell, 13 Q. B. 911. JFoollm v. IFiiffhl, 1 H. & C. 654 ; 31 L. J., Ex. 613. Whitmore v. Greene, 13 M. &W. 104. (i) Kinning v. liuchimati, 8 C. B. 291. Abley v. Dale, 10 0. B. 62. Paititer v. Liverpool Gas Co., 3 Ad. & E, 433. (/.•) Sowell V. Champion, 6 Ad. & E. 417. (/) Jarmain v. Hooper, 6 M. & G. 850; 7 So. N. R. 681. Collctt V. Foster, 2 H. & N. 301. Brooks \. Ilodgkinson, 4 H. & N. 712; 29 L. J., Ex. 93. Tan- ered v. Allgood, 4 H. & N. 438 ; 28 L. J., Ex. 362. (»() fimith V. Keal, 9 Q. B. !>. 340 ; 61 L. J., Q. B. 487. WW r ^iS 1 r ji 'V 1 I ■;■ 1" t ■ i ' 4 Ill II 7fiQ DUTIES OF PTTBLIC OFFICERS. [CIIAP. XI. 713 trespass have been committed under colour of legal process, which has been set aside as irregular, both the client who commands the solicitor and the solicitor who sues out the process are responsible as principals in the commission of the acts of trespass done by their procurement and commandment (h). They are in the same situation after the process has been set aside as if they had them- selves, orally or by writing, desired the sheriff or his officer to make the seizure (o) ; but it is otherwise, if the issue of the process is a judicial act, and the process is afterwards set aside, not for irregu- larity, but for error (p). The costs of setting aside a judgment for irregularity cannot be made the subject of special damage, in an action against the plaintiff or his solicitor for seizing the plaintiff's goods under colour of the irregular judgment, if such costs have been applied for, and refused by the court on motion (17). Ififfh bcdUJf — Duties and responsibilities of the high baitijf, bailiffs, and registrars, of the county court. — By the 9 & 10 Vict. c. 05, s. 33, the high bailiff of the county court is made responsible for all the acts and defaults of himself, and the bailiffs appointed to assist him, in like manner as the sheriff in any county in England is responsible for the acts and defaults of himself and his officers. His liability is co-extensive with that of the sheriff (r) ; but he is not responsible for acts done by his bailiffs under colour of some special power or authority supposed to be given to them under the County Courts Act, and not done under the authority or in execu- tion of a warrant (s). The 29 & 30 Vict. c. 14, s. 11, provides for the appointment of the registrars of county courts to succeed to the duties and liabilities of high bailiffs, as vacancies shall occur. By the 19 & 20 Vict. c. 108, s. 60, it is enacted that no officer of a county court, in executing a warrant of a county court, and no person at whose instance any such worrant shall be executed, shall be deemed a trespasser by reason of any irregularity or in- formality in any proceeding on the validity of which such warrant depends, or in the form of such warrant, or in the mode of execut- ing it ; but the party aggrieved may bring an action for any special damage which he may have sustained by reason of such irregularity or informality against the party guilty thereof, and in such action he shall recover no costs, unless the damages awarded shall exceed forty shillings ; also (sect. 55), that any warrant to a (n) Codrington v. Lloyd, 8 Ad. & E. 449. Barker v. Brcham, 3 Wils. 376. Bates V. Pilling, 6 B. & C. 39. (o) Tindal, C. J., Wihon v. Tummon, C M. & G. 236 ; 6 So. N. E. 905. Green v. Elgie, 5 Q. B. 114. {p) Williams v. Smith, 14 C. B., N. S. 696. {q) Loton V. Devereiix, 3 B. & Ad. 345. (»•) Btirtofi V. Ze Gros, 34 L. J., Q. B. 91. (s) Smith V. Pritchard, 8 C. B. 588. CHAP. XI.] COUNTY COURT OFFICERS. 751 714 high bailiff, to give possession of a tenement under that statute, shall justify the bailiff named in the warrant, in entering upon the premises named therein, witli such assistants as ho shall deem necessary, and in giving possession ; but the entry must be made between the hours of nine in the morning and four in the afternoon, and the warrant must be executed within three months from the day it bears date (sect. 00). Duty ofbailijfs of the count ij court to satis/i/ the luiid/ord's claim for rent.— By the 19 & 20 Vict. c. 108, s. 75, it is enacted, that the 8 Anne, c. 14 (t), shall not apply to goods taken in execution under the warrant of a county court; but the landlord may, within five days of the taking, or before the removal of the goods, make a claim in writing for rent, signed by himself or his agent, stating the amount of the rent in arrear, and the time for which it is due ; and, if such claim is made, the officer making the levy is to distrain for the rent so claimed and the costs of the distiess, but he is not to sell within five days, unless the goods are of a perish- able nature, or upon the request in writing of the person whose goods have been taken. After the five days the bailiff is to sell such of the goods as will satisfy, first, the costs of the sale, next, the claim of the landlord, not exceeding the rent for four weeks where the tenement is let by the week, the rent for two terms of payment where the tenement is let for any other term less than a year, and the rent for one year in any other case, and, lastly, the amount for which the warrant issued. If any replevin is made, the bailiff is, notwithstanding, to sell such portion of the things taken as will satisfy the costs of the sale imder the execution, and the amount for which the warrant issued. Any overplus of the sale or residue of the goods is to be returned to the defendant. The county court bailiff cannot, under this statute, distrain the goods of a stranger on the demised premises for the purpose of satisfying the landlord's rent (it). Breach of duty — Remedy by action {x) — Notice of action. — By the County Courts Act, 9 & 10 Vict. c. 95, s. 138, notice of action is required to be given to all persons acting in execution of that Act. If the bailiff of a county court, ujider a warrant against the goods of -4, by mistake takes those of B, this is an act done in m (0 Ante, p. 697. («) Beard v. Knight, 8 El. & Bl. 865 ; 27 L. J., Q. B. 359. Foulger v. Taylor, 6 H. & N. 202 ; 29 L. J., Ex. 154. {x) By the 19 & 20 Vict. c. 108, s. 24, if the action is brought in the county court, the summons may issue in the dis- trict of which the defendant is an officer, or in an adjoining district, although in a diflferent county {Partridge v. Elking- ton, L. R., 6 Q. B. 82 ; 40 L. J., Q. B. 89), the judge of which is not the judge of a court of wliich the defendant is an officer ; and it has been held that this section, by virtue of the operation of the 28 & 29 Vict. c. 99, s. 21, extends to suits in equity. lAnford v. Gudgeon, L. R., 6 Ch. 369 ; 40 L. J., Ch. 614. vnrnm. ,««i«^ . 1. pi .;inpffn^«^iw^i;ijRrw9miB^Vf9 722 the space of one calendar month is entitled to Lo discharged out of custody on the day in the succeeding month immediately preceding the day corresponding to that from which his sentence took effect (e). Court of bankruptcy — Liahiliti) of the messenger. — By the 46 & 47 Vict. c. 52, s. 119, a search warrant for the discovery of any property of a debtor may he executed in manner prescribed, or in the same manner, and subject to the same privileges, in and subject to which a search warrnut for property supposed to be stolen may be executed according to law. General rjovernment officers. — An officer representing his sove- reign in all functions, civil and military, may be made to answer for an abuse of his authority, aud for the exercise of arbitrary power above and beyond the law. An act of authority, lawful in itself if rightly done, may become wholly unlawful and unjustifiable by the harsh, oppressive, and cruel manner in which it is executed ; for, where the law authorizes an act to be done, it does not protect unnecessary violence or cruelty .n the doing of it (/). Governors of colonies. — Ever" governor of a colony is responsible in damages for unlawfully spoiling, plundering, or imprisoning her Majesty's subjects (j/). The governor of a colony (in ordinary cases) cannot be regarded as a viceroy, nor can it be assumed that he posbesses general sovereign power. Ilis authority is derived from his commission, and is limited to the powers thereby expressly or impliedly entrusted to him ; and he is responsible for acts which are wholly beyond the authority confided to him. Such acts, though the governor may assume to do them as governor, cannot be considered as done en behalf of the Crown, or to be in any proper sense acts of state (//). "Where a carpenter, who followed a train of artillery, but who was not subject i,j martial law, brought an action against the governor of Gibraltar for an assault and battery, and showed that he had been tried by court-martial, and sentenced to be whipped, and that the governor confirmed the sentence, which was then carried into effect, it was held that the action was maintainable against the governor, by reason of his participation in the unlawful whipping, and the plaintiff recovered 700/. damages («). But whatever is a justification in the place where the thing is done, is a justification in the place where the cause of action is tried {k) ; and, if the colonial legislature passes an act of indemnity which is assented to by the Crown before any (e) Migotti v. Cokill, 4 C. P. D. 233. (/) Sutherland v. Murray, 1 T. R. 638. {ff) Hill V. Bigge, 3 Moo. P. C. 465. {h) Mmgrave v. Pulido, L. R., 6 App. Cas. 102 ; 49 L. J., P. C. 20. (i) V. Sabine, cited Cowp. 175. (i) Mostijn V. Fabrigas, Cowp, 161. ^" = tS' h m \ i '3 ■ I'l SI:' 'C. ji'l Hi 7G0 DUTIES OF rUBLIC OFFICEKS. [cilAl'. XL 723 action is commenced in this country, such act of indemnity is a bar to an action in the courts here, although the governor was a necessary party to the passing of the Act and was himself interested init(0. MiUtanj and naval officers. — A military or naval officer is not responsible for acts done by him in obedience to the commands of his superior officer, or of the government he serves, unless the commands are manifestly illegal ; and the justification of an officer sued for acts of force and violence may be made to rest upon a subsequent ratification of his acts by his government, as well as upon a precedent authority im). Where two vessels were chartered by the government for a naval expedition, and the captains of the vessels were to pay implicit obedience to the orders of the officers commanding the expedition, and one of the vessels sustained damage from the other whilst acting in obedience to orders, it was held that the owner of the vessel doing damage could not be made responsible to the owner of the vessel to which the damage was done, if the damage was the natural result of the execution of the orders given, and was not caused by negligence or want of nautical skill in the execution of the orders [n). Military and naval officers are not responsible for arrests made by them in the exercise and discharge of their military and naval authority (o) ; but, if they exceed their authority, and make arrests for offences which are not military or naval offences, and over which they have no jurisdiction or authority, they will be respon- sible in damages for their unlawful acts (^;). An action is not maintainable by a subordinate officer against his superior officer for an act done in the course of discipline, and under powers incident to his position {q) ; for a court of law will not take cognizance of matters of military discipline between mili- tary men (;•), Revenue officers. — Revenue-officers, acting under an authority given them by statute to ex ".mine goods and merchandise, in order to ascertain the amount of duty payable upon them, or whether they are goods that may lawfully be imported, are not liable to an action for the seizure or the unlawful detention of the goods, unless the goods are taken and kept an unreasonable time, and there has been a clear abuse of authority on the part of the officers. If fairly and honestly believing that goods are liable to {I) PhUUps V. Eyre, L. R., 4 Q. B. 225 ; C ii. 1 ; 38 L. J., Q. B. 113. («() Huron V. Denman, 2 Exoh. 167. (») Hodgkinson v. Fernif, 2 C. B., N. S. 436 ; 26 L. J., C. P. 219. (o) Bradley v. Arthur, 4 B. & C. 305, (p) Warden v. Bailey, 6 Taunt. 67. \q) Johnstone v. Sutton, 1 T. E. 544. (r) Willos, J., Datvfcinsy. Lord Eokeby, 4 F. & F. 806. CHAP. XI.] GENERAL GOVEKNMENT OFFICERS. 761 724 seizure, they take and detain them, and the decision of the matter is referred to the proper authorities, they are not responsible for the detention of the property, although it may turn out that their judgment in the matter was erroneous, and that the goods ought to have been examined and passed (v). And by the 39 & 40 Vict. c. 30, 8. 267, " "Where in any information or suit relating to any seizure, a verdict or judgment shall be found for the claimant, if it shall appear to the judge or justice before whom the same was heard that there was reasonable or probable cause of seizure, and such judge or justice shall so certify on the record or information, such certificate may be pleaded as a bar to any action, indictment, or other proceeding against the seizor." Eevenue officers are entitled to notice of action (t). Liability for the acts of their suhordinatcs. — Public officers employed in the public departments in the conduct and manage- ment of the public business of the country, are not responsible for the negligence and misconduct of those who act under them, although such subordinate officers have been appointed by them. Thus the Lords Commissioners of the Treasury, the Commis- sioners of Customs and Excise, the auditors of the Exchequer, &c., have never been held liable in damages for the negligence or misconduct of the inferior officers in their several departments. A Queen's officer stationed on board ship to do his duty there, is not responsible for the negligent acts of his subordinate officers {it) ; nor is the Postmaster- General responsible for the negligence or misconduct of clerks and letter-sorters employed and appointed by him for the execution of certain public duties in the Post-office ; but these public functionaries are responsible to every individual who sustains damage by reason of their own personal neglect or misconduct {/). Local yovernmeiit officers — Duties and rcspoiisitjilities of trustees and commissioners of public works. — Trustees and commissioners of public works having cei'tain public duties to perform under the authority of a statute, incur no personal responsibility for their acts, if they act within the strict line of their duty ; but, if they order a thing to be done which is not within the scope of their authority, or are guilty of negligence or misconduct in doing that which they are empowered to do, they render themselves liable to an action (y). If the act done is in itself lawful, it can only («) Jacobsohn v. Blake, 6 M. & G. 919 ; 7 So. N. R. 784 ; 13 L. J., C. P. 89. As to detention for freight, see the 39 & 40 Vict. c. 36, 8. 73. U) Fast, p. 779. (m) Ante, p. 631. {x} Lone v. Cotton, 1 Ld. Raym. 646 ; 1 Salk. 17. {y) Jones V. Bird, 5 B. & A. 837. Clothier v. Webster, 12 C. B., N. S. 790 ; 31L. J., C. P. 317. ifeitfc 762 DUTIES OP PUBLIC OFFICERS. [cHAP. XI. 726 become unlawful in consequence of the negligent and im- proper manner in which it is executed (s). Where an action was brought against one of several trustees, who had joined in an order made by the trustees for cutting a drain through certain lauds, whereby considerable damt.ge had been done to the plaintiff's estate, and it appeared t'iat the trustees had acted in the execution of statutory pov/ers, in the best mode they could, under competent advice, and in the faithful execution of the duties imposed upon them by the Legislature, it was held that they were not personally responsible for the damage done {(i) ; but, wliere the trustees of a public road covered over an open drain by the roadside, and thereby caused an accumulation of water in the road, which flooded the adjoining land, and ran iuto and swamped the plaintiff's colliery, it was held that they were responsible in damages for the injury (^,1). So, where an action was brought against certain commissioners of pavements for so raising a pavement as to obstruct the plaintiff's doors and windows, and it appeared that the commissioners were acting in the exercise of statutory powers, but that proper advice had not been taken, and the works were improperly executed, and the injury done to the plaintiff might have been readily avoided by laying down the pavement in a proper manner, it was held that the commissioners were personally responsible in damages for the nuisance they had unnecessarily created (c). Public commissioners and trustees who continue in the actual occupation of public works constructed and maintained for the use of the public, and in receipt of the tolls levied for the use thereof, are bound to maintain and manage their property so that it may not become a source of danger to those who are invited to use it ((/). And even where toll is not taken they are bound to show reasonable care (<■). Navigation commissioners, therefore, are liable for accidents occurring from non- repair of the towing-path, if they have power under their statutes to take or hire it from the o\vner, and they do so, although by parol only, and charge a toll for the use of it (/). But, if they have demised the property to a lessee, who is in the actual use and occupation of it, and in receipt of the tolls, it is not then the duty of the commissioners or trustees to {z) Boultonv. Cfoiither, 2 B. & C. 709. Govenwr, ^-c. of Vast Flute Co. v. Mere- dith, 4 T. R. 794. («) Sutton V. Clarke, 6 Taunt. 29. Groeers' Co. v. Donne, 3 Bing. N. C. 34 ; 3 So. 357. Herring v. Metropolitan Board of Works, 19 G. B., N. S. 610 ; 34 L. J., M. C. 224. Harris v. Baker, 4 .M. & S. 29. (A) Whitehouse v. Fellowes, 10 C. B., N. S. 765 ; 30 L. J., C. P. 305. (f) Leader v. Moxon, 2 W. Bl. 924 : 3 Wils. 461. (rf) The Mersey Bocks Trustees v. Gibbs, L. E., 1 H. L. 93 ; 35 L. J., Ex. 226. (c) Beg. V. Williams, 9 App. Cas. 418 ; 53 L. J., P. C. 64. (/) If^inch V. Thames Conservators, L. R., 7 C. P. 458 ; 9 C. P. 378 ; 41 L. J., C. P. 241 ; 43 L. J., C. P. 167. : iili: CHAP. XI.] LOCAL GOVERNMENT OFFICERS. 763 726 maintain the works in a safe and seoure state, unless the par- ticular statute under which they act imposes that duty upon them (//). Whenever an Act of Parliament imposes upon commissioners, or upon any public body, the duty of maintaining or repairing any public work, and special damage is sustained by a particular indi- vidual from the neglect of the public duty, an action for damages is maintainable against such commissioners or public body (/), unless there are provisions in the statutes creating them for limit- ing their liability, or the duty of repairing is not absolute (A) ; the rule being that, in the absence of sometbing to show a contrary intention, the Legislatiire intends that the body, the creature of the statute, thall have the same duties, and that its funds shall be rendered subject to the same liabilities, as the general law would impose on a private person doing the same things (/) ; and this, whether they have or have not funds at their disposal for effecting the repairs ; though, if there are no funds, there may be a difficulty in the way of the plaintiff's getting his damages (/«). Whenever injiu-y is sustained from the non-repair of water- pipes, fire-plugs, drains, or works erected for the use or accom- modation of the public, the liability to make compensation for the injury arising from sucli neglect rests with the parties upon whom the duty of repairing is imposed (»). But local boards in whom the highways have been vested by the Public Health Acts are not liable for mere misfeasance in omitting to repair, simply as sur- veyors (o). liocal boards of health discharging the duties of surveyors of highways are, however, liable for the negligence of themselves or their servants in leaving heaps of stones, &c., un- lighted at night {p). Generally speaking, where local boards are authorized and required to execute drainage works in a particular district, and to make compensation to parties sustaining injury therefrom, they have no power to collect together the sewage and pour it into streams which were previously pure, so as to create a nuisance and deteriorate the value of the adjoining land. A power (h) Walkrr v. Got, 3 H. & N. 395 ; 27 L. J., Ex. 427. (i) The Mersey Docks Trustees v. GMs, L. R., 1 H. L. 93 ; 35 L. J., Ex. 225. Coe V. Jrise, 5 B. & S. 440 : 33 L. J., Q. B. 281; L. R, 1 Q. B. 711; 37 L. J., Q. B. 262. {k) Yowiff V. Davis, 2 H. & C. 197 ; 31 L. J., Ex! 266. Wilson v. Mai/or of Halifax, L. R., 3 Ex. 114; 37 L. J., Ex. 44. Farsons v. St. Matthew, Bethnal Green, L. R., 3 C. P. 66 ; 37 L. J., C. P. 62. {/) Per Blackburn, J., Mersey Dock Trustees v. Gibbs, L. R., 1 H. L. 110; 35 L. J., Ex. 225. (/») Ilariiiall v. Eyde Lnprovcmeiit Commissioners, 4 B. & 8. 361 ; 33 L. J., Q. B. 39. JlKsh V. Martin, 2 H. & C. 311 ; 33 L. J., Ex. 17. Ohrby v. Hyde Commissioners, 5 B. & S. 743 ; 33 L. .T., Q. B. 296. If they are in possession of land, it niay be taken under a writ of elegit. Worral Waterworks Co. v. Lloyd, L. R., 1 C. P. 719. («) Bayleij v. Wolverhampton Water- works Co., 6 H. & N. 241 ; 30 L. J., Ex. 67. (o) Gibson v. Mayor of Preston, L. R., 6 Q. B. 218 ; 39 L. J., Q. B. 131. {p) Foreman v. Mayor, ^c. of Canter- bury, L. R., 6 Q. B. 214 ; 40 L. J., Q. B. 138. ( 70-1 JJL'TILS 01' I'UilLIC OFl'ICKUS. [ciiAl'. XI. rM M. 1* 727 to take posseBsion of streams, and to cover over open water- courses for drainage purposes, and to give compensation therefor, gives to the board no power by implication to pollute water which was previously substantially pure (q). Although the inhabitants of a town may have a right to open their sowers into a river in the natural course of drainage, this does not entitle them to foul the water with the contents of water-closets, and convert a sweet and limpid stream into a stinking sower. The ordinary right of send- ing house-drainage into streams and natural watercourses, is like the right of drainage which exists in the case of adjoining mines upon different levels {r). By the 10 & 11 Vict. c. 34, s. 24, power is given to commis- sioners ond public bodies intrusted with the execution of the powers of tlie Act, to construct sewers for the di'ainago of towns, and to carry such sewers through inclosed and other land, making full compensation to the owners and occupiers thereof, and to cause such sewers to empty themselves into the sea or any public river, or to cause the refuse from such sewers to be conveyed to a convenient site for sale, for agricultural or other purposes, but so that the same shall in no case become a nuisance ; and by sect. 107 it is further enacted " that nothing in the Act contained shall be construed to render lawful any act or omission on the part of any person which is, and but for the Act would be deemed to be, a nuisance at common law" (.s). If, therefore, commissioners, trustees, or any body corporate, intrusted with the exercise of the powers of this statute, create a nuisance by their system of drainage, they may be restrained by injunction from continuing the nuisance {t). Breach of ihdij — Remedy by action — Exemption from personal liability. — In most statutes relating to public works provisions are to be found exonerating the board, commissioners or trustees, and their subordinate officers, from personal liability in respect of any matter or thing done bona fide for the purpose of executing tho Act, and, in some cases, the saving clause is added, •* unless the action, suit, damages, costs, and charges have arisen in consequence of wilful neglect or default on the part of the commissioners, or person incurring the same." The effect of clauses of this sort is not to leave a complaining ]»r {q) Calor V. Lewisham Board of Works, 6 B. & S. 115 ; 34 L. J., Q. B. 75. (»•) Ante, p. 3G9. (*) See also as to constructing sewers under the Public Health Act, 1875, s. 13 et seq., and s. 264 as to notice of action ; and generally as to entry, &c., upon lands for the pnrpoees of the Act, ss. 305—308. (t) Att.-Gen. v. Borough of Birming- ham, 4 Kay & J. 543. Att.-Gen. v. Corporation of Leeds, L. R., 5 Ch. 583 ; 39 L. J., Ch. 711. Att.-Gen. v. Gas Lights Coke Co., 7 Ch. D. 217 ; 47 L. J., Ch. 634. CHAP. XI.] LOCAL fiOVKUN^rRXT OFFICKRS. n)0 728 party remediless, but to oblige liim to bring his action against the public board, or against tho eommis.sion(>rs as a body, in the namo of their clerk, in which case the liability will not bo personal ; and any damages ihat may bo recovered will be payable out of tho funds at their disposal under tho provisions for tho payment of damages and costs, recovered in any such action against tho clerk (h). Thus, where certain commissioners for tho improvement of a town, acting under the powers of the Publio Health Act, made a now sewer communicating with tho plaintiff's drain, and neglected to take proper precautions to prevent tho plaintiff's premises from being flooded by storm waters, and by inundations from an adjoining river which communicated with tho new sewer, it was held that tho plaintiff was entitled to maintain an action against the clerk of the commissioners, for the recovery of all tho damage he had sustained by reason of tho negligence of tho commissioners, and that these damages were to bo paid out of tho rates levied inider the Act (./•). So, where certain contractors, acting under the directions of the Metropolitan Commissioners of Sewers, altered a sewer communicating with the plaintiff's drain, and thereby caused a nuisance to tho plaintiff, for which he brought an action against tho contractors, and the jury, in answer to a question left to them by tho judge, found that the contractors had, in making the sewer, acted bond fide under the orders and directions of the commissioners, it was held that, as there was no evidence of any negligence on the part of the contractors, the sewer having been properly constructed by them under the orders of the commissioners, and the nuisance to the plaintiff being tho natural and necessary result of the making of the sewer, the contractors were absolved from all personal liability for the nuisance {y). But protecting clauses of this sort do not exempt contractors and workmen from personal liability in respect of the negligent performance of work intrusted to them to execute. "Where there is no negligence, a person doing the act in obedience to the com- missioners or tlie board will be properly absolved, and the board will have to make compensation ; but, if he has been guilty of negligence in doing the act, and damage ensues, he is personally liable for the consequences, notwithstanding the statute, for ho M («) Ward V. Lee, 7 El. & Bl. 430 ; 26 L. J., Q. B. 142. Southampton and Itchin Bridge Co. v. Southampton Local Board, ^., 8 El. & Bl. 801, 812: 28 L. J., Q. B. 4 1 . Bunh V. 3rartin, 2 H. & C. 311; 33 L. J., Ex. 17. Jrormuell v. Hailstone, 6 Bing. 676. (x) Ruck V. Williams, 3 H. & N. 308 ; 27 L. J., Ex. 357. Allen v. llayward, 7 Q. B. 960 ; 15 L. J., Q. B. 99 ; ante, p. 106. Great Western Itail. Vo. of Canada V. Braid, 1 Moo. P. C, N. 8. 101. (v) Ward V. Lee, 7 El. & Bl. 430 ; 26 L. J., Q. B. 142. my I • i I • 760 DUTIEH OF PITBLIC OPFICKRfl. [cHAP. XT. il ■> i mi- 'II;! Ill: 729 cannot protend that negligence was ordered or dirootod by the commissioners or board (s). Whore Acts for tho authorization of public works to be effected through the medium of trustees, or commissioners, or a board, enact that the trustees, or tho commissioners, or the board, shall and may suo and bo sued in the name of thoir clerk, it is generally meant that thoy must so sue and be sued ; so that an action for a wrong done in the execution of the Act cannot be brought against individual commissioners or trustees, or individual members of tho board. In some cases these statutes require tho action to bo brought against the clork, in others they require the action to be brought against the board in its statutory name, as a quasi- corporate body. When it is provided by statute that commissioners or trustees appointed for tho execution of public works shall bo sued by their clerk, or treasurer, or public olBcor, an action is not maintainable against such officer, except whore it could have been supported against tho commissioners or trustees themselves (a) ; but, when- ever there has been a broach of duty on the part of the commis- sioners or trustees causing a private injury to another, an action is maintainable against their clerk or public officer to recover compensation for such breach of duty (/»). Breach of dtiti/ — llcmcchj hij injunction. — The coi'.rt will by injunction restrain public boards and commissioners from doing acts in excess of the statutory powers intrusted to them (<■), and from carrying out what thoy may be pleased to call the spirit of the Act in an arbitrary manner (d). In deciding on the right of a single proprietor to an injunction, the court cannot take into con- sideration the circumstance that a vast population will suffer by reason of its interference. " There are cases at law," observes Sir W. P. Wood, V.-C, "in which it has been held that, where the question arises between two portions of the commimity, tho convenience of one may be counterbalanced by tho inconvenience of the other, where the latter are far more numerous. But in tho case of an individual claiming certain private rights, and seeking to have those rights protected, the question simply is, whether he has those rights, and not whether a large population will be incon- venienced by measures taken for their protection "(?. 168. (A) Cane v. Chapman, 6 Ad. & E. 647. (c) IIoH V. Corporation of Rochdale, L. R., 10 Eq. 354 ; 39 L. J., Ch. 761 ; 27 L. J., Ch. 343. Auckland {Lord) v. Westminster Local Board, L. R., 7 Ch. 697 ; 41 L. J., Ch. 723. (rf) Tinkler v. Wandsworth Board of Works, 1 GifE. 417; 2 l)e G. & J. 261 ; 27 L. J., Ch. 342. (c) Att.-Gen. v. Borough of Birminy- ham, 4 Kay & J. 643. liaphael v. Thames Valley Rail. Co., L. R., 2 Ch. 147. CHAP. XI.] LOCAL OOVEIINMRNT OFFICERS. 767 730 Liabilily for the nets of eotttrneton. — Wliere oonimiHpinners in- trust the execution of puljlio works to contraotors, who select their own workmen for tlio execution of tlio work, the coniniissioners nro not personally liable for the mistakes or nogligmice of the eon- tractors or their workmen, unless they personally interfcTo in tlio management of the works, or unless the thing comi»laine(l of is a nuisance existing on land of which they are in possession (./'). Lialiilili/ of the contractor. — If an action is brought against contractors and workmen who are personally engaged in the exe- cution of public works under the order or authority of trustees, or a board of public works, and the damage of which the pliiintiff oomplains is the inevitable result of the execiution of a public work under statutory authority, the action will fail ; but, if the damage arises from the negligent execution of the work, and might have been avoided by the exercise of proper skill aud care, the contractors and workmen will bo personally answerable for the damage done(f/). Imlemuity of triisteei. — Wherever a duty is imposed by statute upon public officers, and costs incidentally arise in questioning the propriety of acts done in the fulfilment of that duty, the commis- sioners and public officers have a right to defray those expenses out of the funds they are authorized to administer, and may, in general, levy a rate to defray such expenses (//) ; and, wherevei necessary expenses are incurred in the execution of a trust, or in the performance of duties thrown on any persons, and arising out of the situation in which they are placed, such persons are entitled, without any express provision for that purpose, to make the pay- ments required to meet those expenses out of the funds in their hands belonging to the trust (/). "It is said," observes Lord Campbell, "that it is a great hardship on the ratepayers to be made to pay for the blunders or negligence of the board. That objection, however, seems to be met by the consideration that the members of the board are elected by the ratepayers, and, are, therefore, their representatives; and there would be greater in- justice, perhaps, if it were held that the persons injured by the negligence or ^vrongful acts of the board had no remedy "(/.). But the expenses must be such as have been legitimately and properly incurred by the persons intrusted with the administration II (/) Hum/rei/s v. Mears, 1 M. & Ry. 187. Duncan v. Findlater, 6 01. & Fin. 894. {g) Jones V. Bird, 5 B. & Aid. 837 ; I D. & B. 503. Clothier v. Webster, 12 C. B., N. S. 790; 31 L. J., C. P. 317. (A) R. V. Commissioners, ^c. for Tower Hamlets, 1 B. & Ad. 232. Jt. v. Essej;, 4 T. R. 591. (i) Att.-0'en. v. Mayor of Norwich, 2 Myl. & Or. 425. £ewis v. Mayor, 4-c. of Rochester, 9 C. B., N. S. 401 ; 30 L. J., C. P. 169. (k) Southampton and Itchin Bridge Co, V. Southampton Local Board, 8 El. & Bl. 812; 28 L. J., Q. B. 41. m^ W" 7f]« r)I'T[F,H OF PITHTJf OKFICEUI^. [flTAP. XI. 731 of tl»o fuml in iho fiont) Jitic and npooBBftry disohargo of tlin dutioH imposed upon them (/). If tht«y aro guilty of any wilful pcr- Honiil niiBeonduct in inoun'ing the oxponsos thoy havo incuirred, they cannot clmrgo thoni on tlin puhlio fundn at thoir tliflposal (m). Sunri/orn of /n)//iini;/H (iiKf roKHfi/ /iriifi/is aro not ropponsiblo in damagos to iravellors who havo miHtainod injury from tlio highway or bridge being out of ro]tiiir(//) ; nor are corporate bodioH to whom tho duties and liabilities of surveyor have been transferred («). Hut a surveyor of highways is responsible, like any other i)Gr8on, for any negligent act of his own, creating a nuisance, and causing injury to another ; and, where a surveyor was directed by the vestry to g(!t tho level of a road raised, and ho contracted with a contractor for the labour only, but not for having the work properly fenced and lighted, it was held that he was responsiblo for nn injury to a person driving along tho road, which arose from its being inaafficiently lighted and fenced {/>). Notwithstanding that by tho 25 & 26 Vict. c. 61, s. 16, the surveyor of a highway board is bound to obey tho o Jers of tho board, in tho execution of his duties, ho is not protected, if, in obeying their orders, he does an unlawful act (7). Where the defendant, who was a surveyor of highways, dug into tho plaintiff's soil, threw down fences, and erected a wall, and tho lligliway Act, 13 Geo. -'{, c. 78, s. 81, required the action to be brought '* within three months after tho fact committed, and not afterwards," and no action was brought Avithin tho three months, and, after that period had expired, the surveyor raised tho wall and finished it, it was held that the raising of tho wall was not a fresh fact committed within tho meaning of the statute, and would not extend the period of limitation beyond the three months {>•). (l) liig. V. Mm/or of SheftiM, L. R.. Q. B. 652 ; 40 L. J., Q. B. 2J7. (»)) UerioCs ][ospital Fcofffcx v. Roan, 12 CI. & Fin. 6l;{. ' (»() Young V. Itavls, 2 II. & C. 197 ; 31 L. J., Ex. 2.50. M'A'iiinoii v. Pihsoh, 9 Exth. GOO; 23 L. J., M. C. 97. PowuTH aud duties of mirvoyors nro vested in urban authorities by tho PubUc Uealth Act, 1875 (38 & 39 Vict. c. 55), 8. 144. (n) J'dlaoHH V. St. 3ftlttficic, BfthlKll fheai, L. R., 3 C. P. 60 ; 37 L. J., C. r. 02. {p) l\ndhburi) \ . Grccnhalgh, 1 Q. B. D. 36: 45 L. 3., Q. B. 3. [,/) Mill V. llimkei; L. R., 10 Ex. 92; 44 L. J., Ex. 49. ((•) Wordsworth v. Harky, 1 B. & Ad. 391. i09 732 CHAPTER XII. OF FRAUD. Fraud. — The right of action in case of fraud is ultimately grounded upon tlio genernl moral duty to liurt no one by word ; but it is more immediately founded upon the gcuieral principle of expediency, tliat one who intentionally excites expectations of advantage in the mind of another, and thereby iniluencos his con- duct, should be compelled to make those expectations good, if they have been excited by a promise of something to be done in the future, or by a culpably false representation of the present existence of some fact. The right of action, therefore, in a case of fraud is remotely connected with other torts arising from words used by the wrong-doer, but more nearly resembles the right of action arising from a breach of contract. Requisites of fraud — Fake representation or eoneealment. — Fraud may consist in the affirmance of something not true within the knowledge of the affirmant, or in the suppression of something which it true, and which it was his duty not to conceal («). Requisites of fraud — Representations amounting niereii/ to erprcs- siona of opinion and belief — When the representation is made con- cerning something which is mere matter of opinion, which every man can exercise his own judgment upon and inquire about, it is the plaintiflE's own fault, if he suffers himself to be deceived (ft). (o) JTomfaU v. Thomas, I H. & C. 90 ; 31 L. J., Ex. 322. See Lee v. Jones, 17 C. B., N. S. 482; 34 L. J., C. P. 131. Fraud may consist in tho artful and purposcKl concealment of facta exclu- uively within tho knowledge nf one party, and known by him to bo material, when tho other party has not equal means of knowledge: Prentiss v. Ross, 16 Me. 30 : Dinreli v. Jlalei/, 1 Paige (N. Y.) 492 ; McLanahan v. Universal Ins. Co., 1 Pet. (U. S.) 186 ; Jackson v. A. micox, 2 111. 344 ; Pejiey v. A'o/and, 80 Ind. 164 ; Jm. Hjr. Co. v. Umith, 67 Iowa, 242. But, to operate as a fraud, tho facts Huppresscd must be such as tho party is under some legal or moral obligation to communicate to the other, oni! which tho other has a right to know : Dickenson v. Davies, 2 Leigh (Vo.) 401 ; Van Arsdale v. Howard, 5 Ala. 596 ; McAdams v. Cotes, 24 Mo. 223 ; Artsen v. Ridgeway, 18 111. 23. (A) Baily v. Mtrrell, 3 Bulstr. 95. 3d I! i:':V H 1 770 FRAUD. [chap. XII. If tlio person giving his o^^iinion, or expressing his belief, does not possess any exclusive means of knowledge, and merely says that which he thinks to be true, there is no fraud, however erroneous may he the statement he has made. If a sheriff, about to seize the goods of a debtor under a writ of execution, makes inquiry of another as to whether certain goods do or do not belong to the debtor, and the person applied to for information does no more than represent what he believes to be true, he is not responsible in an action for deceit, if the information ho gives turns out to bo false, and the sheriff who has acted upon it believing it to be true 733 has been damnified. If, however, a person officioubly inter- feres and gives directions to the sheriff, he may become liable to make good any damages which the sheriff has been obliged to pa • in consequence of his having obeyed such directions (c) ; but it has been held that a mere indication of the defendant's place of residence, indorsed on the back of a writ of fi. fa. by the solicitor of the plaintiff, for the piirpose of affording the sheriff information, is not a direction to execute a writ against the person pointed out, so as to render the solicitor responsible if the indorsement should turn out to be incorrect, and to relieve the sheriff from the responsibility of making inquiry, and acting in the matter upon his owr jespon- sibility {(I). Requisites of fraud — Knowledge of the falsehood. — ^Apart from any question of contract, no action is maintainable for a mere statement, alth jugh untrue, and although intended to be acted upon, and although it has been acted upon to the damage of the person to whom it is made, whore the statement is made honestly and in the belief that it is true. But it is not necessary in all cases to show that the defendant actually know the representation to be untine. A representation is fraudulent, if it is made for a fraudu- lent purpose without believing it to be true (e). (c) Collins V. Evang, 5 Q. B. 830. (rf) Childers v. Wooler, 2 Fl. & El. 287 ; 29 L. J., Q. B. 12S. Cronshaw v. Chapman, 7 H. & N. 911 ; 31 L. J., Ex. 277. [c) Taylor v. Aahton, 11 M. '-W. 415. "Whether a party, misrepresenting a fact, knew it to be false, or made the assertion without knowing whether it were true or false, is wholly immaterial ; for the affirmation of what one does not know, or believe to be true, is equally, in morals and law, as unjustifiable as the affirmation of what is known to bo ■positively false ; and even if a party ■nocently misrepresents a fact by mis- take, it is equally conclusive, for it operates as a snr^^rise and imposition on the other pa..'ty: Smith v. Richaras, 13 Pet. 26 ; Smith v. Babcock, 2 Woodb. & M. 246 ; Foster v. Kenn, iy, 38 Ala. 359 ; Tcrhnnc v. Bever, 36 Ga. 648 ; Ilarding v. Randall, \o Me. 332 ; Howard V. Irwin, 18 Pick. (Mass.) 95 ; Bennett V. Jndson, 21 N. Y. 238 ; Hubbard v. Briggs, 31 N. Y. 518, 640; People v. Sully, 5 Park. (N. Y.) Cr. 142 ; Craig v. Ward, 30 Barb. (N. Y.) 377 ; Sharp v. New York, 40 id. 256. The literal speaking of t'le truth, if intended to accomplish a fraud, may be as fraudu- lent as a talsehood : Mulligan v. Bailey, 28 Ga. 507 ; Buford v. Caldwell, 3 Mo. 477 ; Denney v. Oilman, 26 Me. 149. 'M^mJ:nf!^"' y 'ryl^•t ^rf■,■-^lllf ^ 9^|'f^'!lr^7'r^'r•T'v^ XII. CHAP. XIT.] THE WRONG. 771 Eequiaites of fraud — Const rue fiir fraud. — If a man undertakes positively to assert thac to be true which ho does not know to bo true, and which he has no grounds ior believing to do true, iu order to induce another to act upon tho faith of tlie representation, and tho representation is acted upon and turns out to be false, and the person who has acted upon it has been deceived and damnified, he is entitled to maintain an action for compensation. Whoever pretends to positive knowledge of the existence of a particular fact, when in truth he knows nothing at all about it, doeii in reality make a wilful representation, which ho knows to be false ; and, if the representation is made in order that another may rely upon it r.ud act upon it, and it is acted upon, and damage flows from tho false representation, the person making it is, in principle, guilty of wilful deception and fraud (/). Lord Mnsfield lays it down generally that, in a representation made to induce a person to enter into a contract, it is equally actionable for a man to under- take to assert that of which he knows nothing, as to aflBrm that to be true which he knows to be false {(/) ; and Lord Kenyon says, 734 " If a man affirms that to be true within his own knowledge which he does not know to be true, this falls within the notion of legal fraud. The fraud consists in asserting positively his knowledge of that which he did not know " (/■)• So, according to Maule, J., " If a man, having no knowledge whatever upon the subject, takes upon himself to represent a certain state of facts to exist, he does so at his peril ; and, if it is done either with a view to secure some benefit to himself, or to deceive a third person, he is in law guilty of a fraud ; for he takes upon himself to warrant his own belief of the truth of that which he asserts. Although the person making the representation may have no knowledge of its false- hood, the representation may, nevertheless, have been fraudulently made" (t). Where a trustee was asked as to the incumbrances on certain property, and ho answered that the owner had not incumbered, when in fact he had, but the trustee had forgotten it, it was held that he was liable to make good his representation (J). Requisites of fraud — Unintentional deception. — A person who has reason to believe, and actually believes, a particular fact to be (/) Smout V. Ilbery, 10 M. & W. 10. Cresswell, J., and Wilde, C. J., Jarrett V. Kennedy, 6 C. B. 322. Erie, J., Jenkins v. Hutchinson, 13 Q. B. 748. Randell v Trimen, 18 C. B. 766; 25 L. J., C. P. 307. (y) Patoton V. Watson, Oowp. 788. Fuls/ord V. Biehards, 17 Beav. 94. (A) Haycraft v. Creasy, 2 East, 103. (i) Evans v. Edmonds, 13 C. B. 786. AUlne V. Marwood, 15 C. B. 778; 24 L. J., C. P. 37. {j) Sitnotvsv. Lock, 10 Yes. ilO. See also Slim V. Croucher, 1 De G., F. & J. 5)8. 3 n2 il 772 FRAUD. [chap. XII. S :! true, and accordingly represents what he believes, is not liable to an action merely because it turns out that he was mistaken, and that his representation was unintentionally false (/.) ; for, if every untrue statement which produces damage to another would found an action at law, a man might sue his neighbour for any mode of communicating erroneous information, such (for example) as having a conspicuous clock too slow, whereby the plaintiff was induced to neglect some important duty (l). Where a true t tate- ment is made by A to £, to be transmitted to C, and in the course of transmission Ji carelessly alters the statement, so that, as de- livered to C, it is false, C has no right of action against B. No action, therefore, will lie against a telegraph company at the suit of the receiver for the misdelivery of a telegram, unless there is either a contract between him and the company, or fraud on their part in the transmission of it (m). Requisites of fraud — Fraudulent intention. — An action cannot be supported for the telling a bare, naked lie, /. c, saying a thing which is false, knowing or not knowing it to be so, and without any design to impose upon or cheat another, and without any 735 intention that another should rely upon the false statement and act upon it («). " It is settled law," observes Parke, B., " that, independently of duty, no action will lie for a misrepresentation, unless the party making it knows it to be untrue, and makes it with a fraudulent intention to induce another to act on the strength of it, and to alter his position to his damage " (-9). But, if a false- hood is knowingly told, with an intention that another person should believe it to be true, and act upon it. and that person does act upon it, and thereby suffers damage, the paiiy telling the falsehood is responsible in damages in an action for deceit, there being a conjunction of wrong and loss, entitling the injured person to compensation (/j). Where a gun had been delivered by the (A) Collins V. Evans, 6 Q. B. 826. Ormrod v. Huth, 14 M. & W. 664. Child^rs V. Wooler, 2 El. & El. 287 ; 29 L. J., Q. B. 129. The rule is, that in order U* constitute a fraud it is not only- necessary that the representation should be untrue, but also that the party making it should know it to be so : McDonald v. Trofton, 16 Me. 225 ; Hooper v. Sisl; 1 Ind. 176; Campbel'v. Hillmaii, 15 B. Mon. (Ky.) 608 ; iStone v. Lenney, 4 Met. (Mass.) 161. If the person to whom false representations were made knew them to be false, they do not amount to a fraud : Anderson t. Burnett, 6 Miss. 166. (/J Bailey v. Walford, 9 Q. B. 208. (m) Playfordv. United Kingdom Elec- tric Telegraph Co., L. K., 4 Q. B. 706; 38 L. J., Q. B. 249. Dickson v. 2{euter't TeleqrapA Co., L. R., 2 C. P. D. 62 ; 46 L. J., C. P. 197. (n) Matvlinqs v. Bell, 1 C. B. 951. Ormrod v. Huth, 14 M. & W. 651. Behn v. Kemble, 7 C. B., N. S. 260. In this class of actions the scienter is material : Serrill v. Bennett, i8 Ga. 404; Fettignen v. Chilles, 41 N. H. 95 ; Young V. Covell, 8 John (N. Y.) 23 ; Holmes v. Clark, 10 Iowa, 423; Taylor v. Frost, 49 Migs. 328. (o) Thom V. Bigland, 8 Exch. 731. Childers v. Wooler, 2 El. & El. 287 ; 29 L. J., Q. B. 129. ( p) Com. Dig. Action upon the case, Deobipt, a. 9, A. 10. Pasley v. Free- XII. ciLvr. XII.] THK Wh'ONG. i i< defendant to the plaintiff for the purpose of being u?ed by him, with an accompanying representation that he might safely use it, and that representation was false to the defendant's knowledge, and the plaintiff, acting upon the faith of its being true, used the gun, and received damage thereby, it was held that he was entitled to recover compensation for the injury from the defendant (q). If a defendant has made a false representation knowing it to be false, with intent to induce, and has thereby induced, the plaintiff to enter into a contract, into which, but for that misrepresentation, he would not have entered, and the plaintiff has been damnified by the falsehood, a case of fraud is made out, and an action for damages is maintainable (/•). Rcqumtcs of fraud — Motive of the (lefeiulimt. — In order to main- tain an action for deceit, or for a false and fraudulent representa- tion, it is not necessary to prove that the false representation was made from a corrupt motive of gain to the defendant, or a wicked motive of injury to the plaintiff; it is enough if a representation is made which the person making it knows to be untrue, and which is intended or calculated to induce another to act on the faith of it in such a way as that he may incur damage, and that damage is actually incurred. A wilful falsehood of such a nature is, in the legal sense of the word, a fraud (s). Whether the defendant has any interest in the assertion lie makes, or in the matter respecting which it is made, is perfectly immaterial {t). 736 Repi'csodations made to third persons. — Whether the representa- tion is made to the plaintiff, or to a third party, is immaterial, if it is false to the knowledge of the defendant, and has been made for the aBff man, 3 T. R. 51, 65. Get hard v. Bates, 2 El. & Bl. 48D. Parko, B., Watson v. Foitlson, 15 Jiir. 1112. " JJuliis malus est omnia mnchinatio, calUditas, fallacia, ad circumvcnicudum, faUendum, decipi- endiim aliqucm adhibita." —T)ig. lib. 4, tit. 3, lex. 1, B. 2. {(/) Lanfiridge v. Levij, 2 M. & W. 530; 4 M. '.4 AV. 337. Farrant v. Barnes, 11 C. B., N. S. 553; 31 L. J., C. P. 139. Barry v. Croskey, 2 Johns. & H. 21. Gvorge v. Skivitigtou, L. R., 5 Ex. 1. ()•) Canham v. Barry, 15 C. B. 620. (,i) Lord Tenterden, 0. J., Polhill v. WaUci; 3 B. & Ad. 123. Mihic v. Mar- u-ood, 15 C. B. 778 ; 24 L. J., C. P. 3G. An action upon the case, for deceit, will lie for false representations made by the defendant, by words and ac- tions, with intent to deceive the plain- tiff, whereby the plaintiff sustained damage ; r.nd this, though the defen- dant had no interest in making such representations. Jfart v. I'allmadge, 2 Day (Conn.) 382 ; 6'. P., Jvcs v. Carter, 24 Conn. 392 ; Green v. Bryant, 2 Ga. 66 ; Weatherford v. FiMak; 4 111. (3 Scum.) 170; Fumes v. Morpan, 37 111. 260 ; Hhaefer v. Shade, 7 Blackf. (Ind.) 178; State Bank v. Hamilton, 2 Ind. 457 ; Oldham v. BentUy, 6 B. Mon. (Ky.) 428 ; Nowlan v. Cain, 3 Allen, (Mass.) 261 ; Fleming v. Sloeum, 18 Johns. (N. Y.) 403; Benton v. Fratt, 2 Wend. (N. Y.) 385 ; Hubbard v. Briggs, 31 N. Y. 518; MeAlecr v. MeMiirray, 58 Pa. St. 126. To hold one for false representations of the credit of another, the representations muat have been made, directly or indirectly, by the de- fendant to the plaintiff, and the credit given on the strength of them. Harrison V. Savage, 19 Ga. 310. (<) Faalcy v. Freeman, 3 T. R. 60, 62. 774 I'KAUD. [ai.vr. XII. m m'- ' ir I; i i !■ ^f I purpose of Leing communicated lo the plaintiff (ii), or to a class of persons of whom the plaintiff is one, or even if it is made to the puhlio generally with a view to its being acted on, and the plain- tiff, as one of the public or of such class, acts on it, and suffers damage thereby (.r). Where the father of the plaintiff told the defendant that he Avanted to purchase a gu: for the use of the plaintiff, and the defendant, in order to effect the sale, warranted the gun to have been made by Nock, and that it was a safe and secure gun, and the father then purchased the gun and de- livered it to the plaintiff, who, on the faith of the warranty, and believing it to be true, used the gun, and was injured by its bursting in his hand, it was held that the plaintiff was entitled to sue the defendant for damages, as there was fraud, and damage the result of that fraud, not from an act rem'^te and consequential, but from one contemplated by the defendant at the time as one of its results. " We decide," observes the court, " that the defendant is responsible in this case for the consequences of his fraud whilst the gun was in the possession of a person to whom his representa- tion was either directly or indirectly communicated, and for whoso use he knew the gun was purchased" (//), So, if the vendor of a lamp represents the lamp to be fit and proper to be used, knowing that it is not, and intending it to be used by the plaintiff's wife, or any particular individual, the wife, joining her husband for con- formity, or that individual, will be entitled to an action for the deceit, upon the principle that, if anyone knowingl" tells a false- hood with intent to induce another to do an act which results in his loss, he is liable to that person in an action for deceit (;:). So, where a director of a company puts forth transferable shares into the market, and publishes and circulates false statements and re- presentations for the purpose of selling the sl^ares, the false repre- sentation is deemed in law to be niade to all persons who read the public o,nnouncements, and become ptu-chasers of shares on the faith of the statements contained in them («). Cheating by forgery. — If a forgery has been committed, the 737 party injured may maintain an action for the recovery of the money of which he has been defrauded. Where, the plaintiff's (m) Langridge v. Levy, 2 M. & W. 530 ; 4 M. & W. 337. (x) Swift V. Wintcrhottom, L. R., 8 Q. B. 244, 253; 42 L. J., Q. B. HI. Swift V. Jeicsbunj, L. R., 9 Q. B. 301 ; 43 ii. J., Q. B. 6C. Richardson v. Sil- vester, L. R., 9 Q. B. 34 ; 43 L. J., Q. B. 1. (y) Langridge v. Levy, 2 M. & "W. 532 ; 4 ib. 337. Blakemore v. Bristol and Hxeter Rail. Co., 8 El. & Bl. 1062 ; 27 L. J., y. B. 167. Farraiitv. Barnes, 11 C. B., N. S. 653; 31 L. J., C. P. 139. {z) Longmeid v. Jfolliday, 6 Exch. 760. See George v. Skivington, L. R., 5 Ex. 1. {a) Scott V. Dixon, 29 L. J., Ex. 62, n. Ld. Campbell, Wilde v. Gibson, 1 H. L. C. 623. Barry v. Croskey, 2 Johns. & H. 21. Peek v. Gnrncy, L. R., 6 H. L. 377 ; 43 L. J,, Chanc. 19. W?!iy>r"liiW')|W'.*Pl'«l«PWVP!W!M,*'lf'WA'».^^^ T^ XII. CHAP. XII.] THK WKONG. 775 servant having 65/. of the plaintiff's money in hie custody, the defendant, in order to defraud the plaintiff of the money, procured a letter to bo written in the name of the plaintiff, directed to his said servant, requiring the latter to pay the money to the defen- dant, and counto'-fpiHed the signature of the plaintiff to the letter, and also the plain.... .. s'^al, and caused the said counterfeit letter to be delivered to the plaintiff's servant, as being the plaintiff's letter, and thereby obtained possession of the plaintiff's money, and converted it to his own use, it was held that there was a good cause of action (b). "If a man forge a bond in my name, I can have no action, unless I am sued upon the bond ; but then I may for the ^vrong and damage, though I can avoid the bond by plea. Lut, if it were a recognizance or a fine, I should have a writ of deceit presently " (e). False rcprcucntations to britig about a marriage — Actions for bigamy. — Where the plaintiff declared that she was a virgin, and sought for in mamage, and that the defendant, pretending to be a single person, made love to her p.nd married her, when in truth he was married to another woman, the court held that the action lay (.0- False rcjyrcsentations by relations to bring about a marriage. — False representations by relations as to the fortune, circumstances or prospects of a person about to be married afford a ground of action. Where a mother, who was the absolute owner of certain pro'^erty, heard her son declare to his proposed wife and her guardians, that she (the mother) was only tenant for life of the property, and that the remainder was limited to him after her death, and the mother was privy to the execution of a deed, purporting to be a settlement by the son of the property, on her death, upon the issue of the marriage, and made no objection to the arrangement, and it after- wards appeared that the mother was not tenant for life, but the absolute owner of the property, and that at the time of the execu- tion of the deed there was no limitation of it to tlio son after her decease, the court ordered her to make good the settlement, and execute a conveyance of the property, nnd clothe the son with the interest which she permitted him to vepresent that he had at the time of the conclusion of the marriage {e). If, therefore, the rela- tions and friends of persons proposing to be married pretend to settle estates upon them, or to make a provision for them and the children of the marriage, and the nuptials are celebrated upon tho 738 faith of such settlements or provision, and imder the belief that (i) Tracy v. Veal, Cro. Jac. 223. \c) 43 Ed. 3, 20. Waterer v. Free' man, Hob, 266, (d) Anon., Skin^llO [e) Hunsden v. Cheyney, 2 Vem. 150. l!' 776 FRAUD. [chap. XII. JM h \ 'i' i I .!i:' n they have been duly made, and tho transaction afterwards turns out to be a cheat, tho court will compel tho parties Avho have been guilty of tho fraud to make good that which they protended to do (/). But a representation concerning the fortune, circum- btances, or prot>^ jcts of a person about to bo married, made by a relation, will not bind him to make it good, if he does not know at the time that his statement is imtrue, and does not make it fraudulently with intent to deceive ((/). Fake rrpreseiitatioiis as to the credit of t/u'rd persons. — The credit to which a man is entitled in the commercial world, is a matter which does not lie exclusively within the knowledge of any one person. It is to a great extent matter of judgment and opinion, on which different men will form different opinions; and, if a man in answer to inquiries respecting the solvency or credit of a particular individual, or of a partnership, or joint-stock company, does no more than state his own honest opinion, believing what he says to be true, he is not responsible for the coiTCctness of the opinion, and does not warrant the fact to be as represented by him (h). But, where the defendant's son, being about to open a shop, applied to the plaintiffs for a supply of goods upon credit, stating that he had a capital of 300/. to begin with, and referred them to his fatheT", the defendant, for a corroboration of his state- ment, and the plaintiffs wrote to the father inquiring whether the son had, as he asserted, 300/. capital, his own property, and the defendant wrote in reply that he had, whereas the defendant knew that his son had nothing but borrowed capital, it was held that this was a fraudulent misrepresentation, for which the defendant was liable in damages to the plaintiffs in an action for deceit (»). By the 9 Geo. 4, c. 14, s. 6, it is enacted, that no action shall be brought to charge any person upon, or by reason of, any repre- sentation or assurance made or given concerning or relating to the conduct, credit, ability, trade, or dealings of any other person, to the '.ntent or purpose that such other person may obtain credit, money, or goods, unless such representation or assurance is made in writing, signed by the party to be charged therewith. A re- presentation, to be within the Act, must be of the third person's trustworthiness, as evidenced by his character, conduct, ability, credit, trade, or dealings, with intent that he may obtain personal credit on the faith of such representation (A). Any representation (/) Beverley v. Beverley, 2 Vem. 133. Prole V. Soady, 29 L. J., Ch. 721. {g) Merewethcr v. Shaw, 2 Cox, 124. £vansY. Wyatt, 31 Beav. 217. (A) Hayeraft v. Creaty, 2 East, 106. .(») Gorbett v. Brown, 8 Bing. 33. {k) As to representations of the ability of parties, see Lyde v. Barnard, 1 M. & W. 101, and Hamar v. Alexander, 2 B. & P., N. E. 241, decided before tho passing uf the statute. • --»T-' ijii iwi^auiMV .' UBHIH XII. qilAl'. XII.] THE VVKONCJ. 777 739 that a person may be trusted, constitutes a representation as to his credit and ability {I). If the representation is in writing, and signed by the defendant pursuant to the statute, and the defendant at the time he makes the representation knows that it is untrue, he will bo responsible in damages in an action for deceit, if the plaintiff has been induced to give credit on the faith of it (m), although he has not relied altogether on the writing, but has trusted partly to the writing and partly to subsequent oral repre- sentations {ii). The false representation must bo signed by the person making it, and a signature by an agent («), or by a partner {p), will not be sufiicient. Representations coneerniiig the charnetei; credit, trade, or dealings of co-partners/lips and Joint-stocI,- companies. — A representation by one of several partners as to the trustworthiness of the firm, is a representation as to the c edit of another person within the statute. It is not the less a representation of the solvency of the other partners that it includes himself (7). The word "person" is of extensive signification, and is applicable to a corporation sole or aggregate, as well as to a private individual (/•) ; so that representa- tions by one member of a company as to the circumstances, credit, and condition of the company, in order to induce another to lend his money, or subscribe, or take shares in the undertaking, must be authenticated by a signed writing, in order to be made the foundation of an action for deceit (s). Misrepresentation by directors and officers of public companies — Publication of deceitful j^i'Ofpectases and reports. — Where a de- fendant, knowing that a joint-stock company, of which he was a promoter and director, was a bubble company, and that no bond fide dividend could be paid upon the shares, fraudulently pretended by 0. signed writing to guarantee ^he bearers of shares a minimum annual dividend of 33 per cent., to induce persons to purchase shares, and delivered the writing to the plaintiff, who, by reason of this representation, purchased shares, and lost his money, it was held that the defendant was responsible in damages to the plaintiff in an action for deceit (/). iSo, where the defendant, a (t) Stvaim V. rhillips, 8 Ad. & E. 461. (m) Fasley v. Freemad, 3 T. R. 51. Foster V. Charles, 6 Bing. 400 ; 7 Bing. 107. («) Wade V. Tatton, 18 C. B. 371 ; 25 L. J., C. P. 242. (0) Swift V. Jewsbuiy, L. R., 9 Q. B. 301 ; 43 L. J., Q. B. 56, (p) Williams v. Mason, 28 L. T., N. S. 232. {q) Devaitx v. Steinkeller, 6 Bing. N. C. (;•) Boyd v. Croydon Hail. Co., 4 Bing. N. C. 669. («) As to the recovery of money paid on the strength of fraudulent repreiieuta- tiona of tlie cocdH'on of trading com- panies, see Wontner v. IShairp, 4 0. B. 439. Watson v. Earl Charlemont, 12 Q. B. 856. (t) Gerhard v. Bates, 2 EI. & Bl. 490. il* 778 FKAUD. [C'HAI'. XII. ■^ 'H Ik »h In .; 740 director of a joint-stock bank, sanotionod tho publication of a report, with his signature attached thereto, professing to set fcu'th tlie state and condition of- the bank, and representing that a particular dividend had been fairly earned, and was properly payable out of profits, and tho report was puidicly sold, and tho plaintiff purchased a copy of it, and read it, and bought shares in tho bank, relying on its correctnobs, and the bank was proved to be insolvent to the knowledge of the defendant, at the time ho sanctioned the publication of tho report, and the plaintiff lost his money, and incurred serious liabilities, it was held that ho was en- titled to maintain an action aguinbt the defendant for damages (»). If, therefore, directors of public companies authorize tho pub- lication and circulation of prospectuses and advertisements con- cerning the transactions and monetary affairs of the company, containing statements which are false to the knowledge of tho directors, or which the directors, from their position and means of knowledge, may fairly bo taken to warrant as true (x), or state- ments of such a nature that the withholding of something which io not stated makes that which is stated absolutely false, they will be personally responsible to parties whom they have led to tako shares, and invest money in tho company, on the faith of those prospectuses, and who have sustained damage in consequence thereof (//). But the person defrauded will not, it seems, in such a case, be entitled to retain his shares and sue the company for the deceit {z). So, if the officers of the company knowingly and fraudulently aid in the concoction of false and deceitful reports, to induce persons to invest in the company, and investments are made and losses sustained by persons who have acted on the faith of such reports, the officers so acting will be responsible to the parties they have defrauded («)• To support the action, there must be something to connect the directors making the representation with the party complaining that he has been deceived and injured by it (b) ; and the plaintiff must prove that he acted on the faith of the representation, and («) Scott V. Dixon, 29 L. J., Ex. 62, n. Peek V. Gi(rne>j, L. R., 6 H. L. 377 ; 43 L. J., Ch. 19. Stainback v. Fcrnley, 9 Sim. 666. (x) Taylor v. Ashton, 11 M. & W. 416. New Brunsiiick, ^c. Rail. Co. v. Cony- bcare, 9 H. L. C. 711; 31 L. J., Ch. 297. The Same v. Mtiggeridge, 1 Dr. & Sm. 363; 30 L. J., Ch. 242. Smith's case, L. R., 2 Ch. 604. (y) Clarke v. Dixon, 6 C. B., N. S. 463 ; 28 L. J., C P. 225. Eill v. Lane, L. R., 11 Eq. 216; 40 L. J., Ch. 41. Feek v. Gumeii, supra. (z) Western Bank of Scotland v. Addie, L. R., 1 Sc. App. 158, 166, 167. Uoutds- uorth V. City of Glasgow Bank, 6 App. Cas. 317. (rt) Cullen V. Thompson, 4 Macq. H. L. C. 441 ; 6 L. T., N. S. 870. Seo Wood's Railway Law, 110—120. (A) Peek v. Gurncy, L. R., 6 H. L. 377 ; 43 L. J., Ch. 19. A director who has not expressly or tacitly authorized the fraud will not be liable for the fraud of co-directors. Cargill v. Bower, 10 Ch. D. 502 ; 47 L. J., Ch. 649. ^(•■^"t '«iij\.i»H»r^7-4w^r^^— ^-rf»¥^ '-•T^'Bb T/wT^wi^i, I ' «^'-"i'-" CilAl'. XII.] TlIK WKONG. I i\ V. Addie, lloutds- 6 App. H. See 741 Bustained actual pecuniary damage in consequence thereof (r), and that tlie statements were false, not highly coloured merely (s v. Tiickci; 13 Q. B. D. 562. (e) Venezuela Sail. Co. v. Kiscfi, L. R., 2 H. L. 99, in which case it was held that the statement of the capital of the company as 500,000/., omitting the fact that 60,000/. would have to be paid for the concession, was fraudulent; and that the tenns " available capital of the company" meant capital, exclusive of any borrowing powers. See, also, Ross V. Estates Investment Co., L. E.., 3 Eq. 122. (/) Soas V. Estates Investment Co., supra. {) that tho contracts to be disclosed must in some way affect tho internal or external affairs of the company, including in that expression its property and prospects, the management of its affairs, rnd dealings with its shares, and were not limited to such as were entered into by the company or by its promoters, directors, or trustees as such. On appeal tho court was divided. Bramwell, L. J., held (y) that those contracto are meant which affect the company, which put some obligation on it, whether with or without some benefit attached. («) L. R., 8 C. P. 328 ; 42 L. J., C. P. 136. (o) 1 Ch. D. 182 ; 45 L. J., Ch. 83. (jb) 2 C. P. D. 469; 46 L. J., C. P 636. (q) 2 C. P. D. 491. • ▼^■■■L ^pfmvuw CHAP. XII.] TIIK HKMKDY. 781 743 and thaf, tlio section does not extend to every contract which would assist a person in detenuining whether he woidd ho a sharo- hoMor. Kelly, C. 13., was of opinion that a contraet to ho within tho provision must have heon made with tho company, if it has been formed, and, if not, with tho promoters, or the directors, or tho trus- tees, representing, or purporting to act on behalf of the future com- pany,andwith tho intent that the company when formed shalloxeoute a corresp(mding contract, and so in effect ratify tho act done by tho promoters or othei* body of persons mentioned before its formation ; also that it must bo such as to impose or to bo intended to impose a burden, or obligation, or a loss, or a liability upon tho company which would affect tho value of tho shares in tho hands of a purchaser. Cockburn, C. J., adopted, and Brett, L. J., adhered to, tho view expressed by the latter judge in (tuirr^s Case. In fiulliran V. Mitcalfe (r), Baggallay and Thosiger, L.J J., adopted tho wider view of tho moaning of the section, while Bramwell, L. J., adhered to the opinion he had expressed in TirycroHS v. Gratit. Tho enactment is applicable only for tho protection of share- holders in the company, and creates no statutory duty towards bondholders of tho company or others, for breach of which an action on the statute will lie {h). A promoter who intentionally issues a prospectus without in- serting tho contracts required to bo specified is guilty of " know- ingly issuing " within tho meaning of the section, although he omits them under the bond Jide belief that it is unnecessary to specify them (t). Tho remedy given by the statute is a remedy by action against the person making the omission. The shareholder is not entitled to have his name removed from the list of share- holders («<). Fraud — Money obtained. — If one man has obtained money from another through the medium of imposition or deceit, such money is, in contemplation of law, not the money of the wrong- doer, but of the injured person, whose title to it cannot be destroyed by the fraudulent dispossession {x). Thus money may be recovered back which has been paid under the following circumstances : where a married man, pretending to be single, marries a lady, and, under colour of such pretended marriage, gets possession of her estates and receives the rents {y) ; (r) 5 C. P. D. 465 ; 49 L. J., C. P. 816. («) Cornell v. Eay, L. E., 8 C. P. 328; 42 L. J., C. P. 136. (t) Twycrou v. Grant, 2 C. P. D. 469; 46 L. J., C. P. 626. («) Goier''a case, 1 Ch. D. 182 ; 45 L. J., Ch. 83, dissentiente, Brett, L. J. {x) Keate v. Jlarding, 6 Exch. 349 ; 20 L. J., Ex. 260. Chowne v. Baylii, 31 Beav. 361 ; 31 L. J., Ch. 767. (y) Eai»er v. Wallit, Salk. 28. 782 KFlAUn. '. 1 ■■¥ [chap. XII. 744 rnifl where a man claimB and reoeivofl ronts or money under a false or protondod authority (s). Fraud — linui'dii'' —Action for (famnf/o/i. — Tf flpcoial damages Imve boon surttaincd hy reason of tho nuHropresontation and deceit,, they may ho recovered (n). If a Beller makes a fraudulent representation to a huyer to induce him to buy, and tho buyer acts upon it as if it wore true, the seller must eompci.o.vte him for all tho diroot injurious conse- quences that naturally follow from his actiuj? on the representation. Thus, where a cattlo-dealor sold to tho i)lnintiff a cow, and fraudu- lently represented that it was free from infectious disease, when ho know that it was not, and tho plaintiff placed tho cow with flvo others which caught tho disease and died, it was lield that tho plaintifY was entitled to recover as damages the value of all tho cows(r/). Where a person has been induced, by false accounts of the transactions and profits of a joint-stock company, to buy shares therein, and give for them a sum far boyond their real value, tho measure of damages is the difference between tho actual value of the shares at the time of tho purchase, and the fictitious valuo impa'-^ed to them by the false representation (h). Tho plaintiff is entit) >.i to recover the amount he paid for tho sbarns, if they are in iwx worthless, although at some time or other after he pur- chased them they may have had a factitious value, from which, however, he derived no benefit (c). Rcmedm — Specific perforniftnce. — Where a false representation is made by one man to induce another to enter into a contract, and the person making the representation is no party to the con- tract, the court will compel the latter to make good his assertion as far as possible. Tho principle of equity that, whore a person by misrepresentation draws another into a contract, such person shall be compelled, if possible, to make good the representation, applies not merely to cases where the statements were known to be false by those who made them, but to cases where statements, false in fact, were made by persons who believed them to be true, if in the due discharge of their duty they ought to have known, or if they had formerly known and ought to have remembered, the fact which negatives the representation (d). The principle is this, that a representation made by one party for the purpose of influ- encing the conduct of another, and acted on by him, will, in U) Eobton V. Haton, 1 T. R. 62. Dupm V. Keeling, 4 C. & P. 102. (o) MulMt V. Maton, L. R., 1 C. P. 669 ; 35 L. J., C. P. 299. (b) Davidson v. TuUoch, 3 Macq. H. L. C. 7o3. (c) Twyerou v. Grant, 2 C. P. D. 469 : 46 L. J., C. P. 626. (rf) Puhford V. Jiie/iardi, 17 Beav. 94. mi CHAP. XII.] Tifp, wnoNo-nnFR. 788 746 general, bo sufTiciont to entitlo him to tlio nssistanco of tho oourt for tho purpose ot realizing BU(!h roproHontation (*). Jinncf/ifn — Kttoppcl. — Where ono jx^rson hy his woriU or con- duct wilfully indiicos iinothe: to heliovo in tho oxistenco of a cortiiin Htato of things, and iudueeH him to act on that belief, or to nltor his own previous position, tho former is oonoludod from averring against the latter a didoront stato of things as existing nt the same time (/). " By tho term * wilfully,'" observes Tarko, IJ., " wo nuist understand, if not that tho party represents that to bo true whicih ho knows to bo untrue, at least that ho means his representation to bo acted upon, and that it is acted upon accordingly; and, if, whatever a man's real intention may bo, he 80 conducts himself that a reasonable man would take tho ropro- Bentation to bo true, and boliovo that it was meant that ho should act upon it, and ho did act upon it as true, tho party making tho representation would bo equally precluded from contesting its truth" (r/). Where an action was brought for the conversion of a policy of insurance, and tlio plaintiff proved that he had given instructions to the defendant to effect a policy for him, and gave in evidence a letter from the defendant to tho plaintiff stating that ho had effected the policy, Lord Mansfield refused to allow tho defendant to contradict his own representation, and show that no policy had been offectod, and hold him liable as an insurer for tho am'^uu't iliat would have been recoverable by tho plaintiff on tho policy if it had been duly effected (A). Whenever, also, a man has led others into tho belief of a certain state of facts by conduct of culpable neglect, calculated to havo that result, and they have acted on that belief to their prejudice, he will not be heard afterwards, as against such persons, to show that that state of facts did not exist. In short, a man is not per- mitted, or at liberty, to charge the consequences of his own fault on others, and complain of that which ho has himself brought about (/) ; but the neglocf. must be in the transaction itself, and be the proximate cause of the injury sustained, and must not be the neglect of some duty owing to third persons, with whom thoso seeking to set up the estoppel are not privy (A) ; and the party ■who claims the benefit of this doctrine of estoppel, must show (c) Per Lord Cottenham, Hammersley V. lie Bid, 12 CI. & F. 62, n. Thomson V. Simpson, L. R., 9 Eq. 506. {/) I'iik'ird V. Sears, C Ad. & E. 474. Tiffffott V. Stratton, 1 De G., F. & G. 33 ; 29 L. J., Cb. 9. M'Cance v. London and North Western JlaiL Co., 3 H- & 0. 343 ; 34 L. J., Ex. 39. (y) Freeman v. Cooke, Exoh. 633. Maine* v. East India Co., 11 Moore, P. C. 67. (/i) Harding v, Carter, Park on Insur* anco, 6. (i) Swan v. Xorth British Australian Co., 7 H. & N. 603 ; 2 H. & C. 175 ; 31 L. J., Ex. 436 ; 32 L. J., Ex. 273. (A) Blackburn, J., Swan v. North British Australian Co., 2 H. & C. 175 ; 32 L. J., Ex. 273. 784 FRAUD. fCHAP. XII. 3 1 it 746 that he has acted in the transaction in which he was deceived with ordinary caution (/). A company, hy entering the name of a shareholder on their register under a forged or invalid transfer, represent that the person so entered is entitled to transfer the sharos to a third person, and are estopped from denying it ; and, if the rerl holder's name is restored to the register, such third person is entitled to sue the company, and to recover the value of the shares at the time they first refused to recognise him as a shareholder, with interest (m). LiabiUty of the principal for the fraud of his agent. — The prin- cipal is, of course, responsihle for any fraud of the agent which he has expressly authorized. He is also responsible when he has adopted and taken the benefit of the fraudulent act with know- ledge of the fraud (h). "Where fraud has been committed, and a third person is concerned who was ignorant of the fraud, such third person is innocent of the fraud only so long as he does not insist upon deriving any benefit from it ; but, when once he takes the benefit, he becomes a party to the fraud " (o). The principal is also liable to third persons for the frauds, deceits, concealments, and misrepresentations of his agent committed in the course of his employment and for the principal's benefit, though no express command or privity by the principal be proved (//). Thus, a trustee who employs a solicitor to invest the money of the cestui que trust, is responsible, if the solicitor fraudu- lently fabricates a surrender of copyholds by which the cestui que trust incuKj loss(5'). But, as a general rule, the principal is not liable for the personal fraud of the agent not in any way partici- pated in by the principal and from which he has derived no benefit; for such fraud can hardly be within the scope of the agent's employment (r). Where a banking co-partnership, under the 7 Geo. 4, c. 46, were in the habit of receiving deposits of money from their customers, and allowing interest on the deposit, and the manager of the bank received a deposit of money from a {;) Erie, C. J., Exparte Strati, 7 C. B., N. S. 400; SOL. J., C. P. 118. («i) In re Jiahm and San tramisco Rail. Co., L. E,., 3 Q. B. 684 ; 37 L. J., Q. B. 176. Hart v. Froiitino and linlhia Gold Mining Co., L. R., 6 Ex. Ill ; 39 Li. J., Ex. 93. See In re London and Provincial Telegraph Co., L. R., 9 Eq. 653 ; 39 L. J., Ch. 419. («) Udell V. Atherton, 7 H. & N. 181 ; 30 L. J., Ex. 337. Barry v. Croskey, 2 Johns. & H. 21. New Brimstvick and Canada Rail. Co. v. Conybeare, 9 H. L. C. 711; 31 L. J., Ch. 297. Swire v. Francis, 3 App. Caa. 106; 47 L. J., P. C. 18. (o) Wood, \.-G.,ScholeJUid\. Templer, 1 Johns. 163 ; 28 L. J., Ch. 452. {p) Bartviek v. Englith Joint Stock Bank, L. R., 2 Ex. 269 ; 36 L. J., Ex. 147. Mackay v. Commercial Bank of Xeto Brunstvick, L. R., 5 P. C. 394 ; 43 L. J., P. C. 31. Weir v. Bell, L. R., 3 Ex. D. 238 ; 47 L. J., Ex. 704. {(?) Bostock V. Flayer, L. R., 1 Eq. 26. Sutton V. Wilders, L. R., 12 Eq. 373. (r) Swift V. Jewsbury, L. R., 9 Q. B. 301 ; 43 L, J., Q. B. 56. IFeir v. BelK 3 Ex. D. 238 ; 47 L. J., Ex. 704. ^-^^re■T.■lT?r»7^s^-»^5^pr:™^™«™^J^'W^W«?»•B^ XII. CHAP. XII.] THE v'RONO-DOEK. t85 747 lady, and gave her a deposit receipt, and at a sul)soquont period represented to her that a higher rate of interest miglit be obtained for Ldr money if she purchased some houses on which the bank had a mortgage, and paid off the mortgage, and the lady accord- ingly brought her deposit receipts to the bank, and drew out her money, and handed it over to the manager to be applied in the way indicated by him, but the latter absconded with tlxe money, it was held that the bank was responsible for the loss, as the manager had all along b"°n mtrusted with the money as their agent (s). But where one of several partners in a bank induced a customer to draw her money out of the bank and lend it to his own son, on the security of the son's note of hand and his (the partner's) own guarantee, and the partner and his son both became insolvent, and the securities were worthless, it was held that the banking firm was not responsible for the money, as the investment was a private transaction between the customer and the individual partner, who was avowedly acting in the matter on his own private account, and not on behalf of the bank (/). So, also, a shipowner is not responsible for tlie fraud of the captain in signing bills of lading without having received any goods on board (») ; nor a wharfinger for a false receipt given by his agent, representing that goods have been received at the wharf, when no such goods have been received (j'). Ecsponsibi/iti/ — Joint-stock companies. — The sliareholders of a joint-stock company cannot be made individually responsible in damages in an action for deceit, for adopting and authorizing the publication of a false and fraudulent report respecting the pecuniary state and condition of the company, unless it is proved that the report has been signed by them, and was false to their knowledge at the time they attached their signatures (o it (>/). Where directors have s'^-ned false and fraudulent reports of the state and circumstances of a joint-stock company, such directors, and not the comjjany, are the proper parties to be sued for the 'lamages resulting from the misrepresentation. No body of shareholders can authorize directors to put forward fraudulent representations and false accounts of the transactions of the company, so as to render the company at large responsible for the fraud. That is a course which no body of shareholders could sanction against a single dissentient, or against a single absent shareholder (s). (*) Thompson v. Bell, 10 Exch. 10; 23 L. J., Ex. 321. {<) Bishop V. Countess of Jersey, 2 Drew. 143 ; 23 L, J., Ch. 483. («) Grant v. Xorway, 10 C. B. 688. (x) Coleman \ Jiiches, 16 C. B. 104 ; 24 L. J., C. P. 126. A. {;/) Barry v. Croskey, 2 Johns. & H. 27. (;:) U'ealern Bank of Scotland v. Addie, L. R., 1 So. App. 158. HouUsworth v. City of Glasgow Bank, 6 App. Cas. 312. See however Mackay v. Commercial Bank of Xew Brunswick, L. R., 6 P. C. 394 ; 43L. J., P. C. 31. 3e ''TT'" wBUfw^V^ T%»i?'IT'VT'.'T'-", '?•■•■■ ■*f (TTT'»7"=i m FRAITD. [rTiAP. xn. 748 LiabUify of the agent. — If an agent obtains money in the name cf his principal by fraud or deceit, he cannot shelter himself from responsibility on the ground that he is an agent, and has paid the money over to his principal. If an agent sells goods with full knowledge that he has no right to sell, and conceals that fact from the buyer, he is liable to the latter for tlio deceit, although before action brought he has paid over the price {a) . So, where a solicitor brought an action, and recovered a sum of money on th? retainer of a man who professed to act under a power of attorney from the party really entitled, but which power ui atl .■ ^y was forged, and an action was brought against the solicitor ior the recovery of the money, it was held that the fact of his having paid it over to his false employer constituted no answer to the action (b). Fraud by infants. — An infant is not liable to an action for a fraudulent representation or a breach of warranty (c), where a contract made by means of the misrepresentation, or a sale effected through the false warranty, is substantially the cause of action. Thus, he is not responsible for falsely affirming goods to be his owr goods, and that he had a right to sell them, and thereby inducing the plaintiff to purchase them {d). Nor is he responsible for a false and fraudulent representation that he was of full age, whereby the plaintiff was induced to contract with liim ; for, if Buch an action were maintainable, all the pleas of r ^moy would be taken away, as such affirmations are in every cont.r j. Fraud by married uotnen. — No action was maintuinuf?' ^ gainst a married woman or her husband for a false and fraudulent repre- sentation by the married woman that she was a feme sole, whereby she induced the plaintiff to make a contract »vith her which he could not enforce by reason of her being married (/) : or that the signa- ture to a bill of exchange was her husband's signature, whereby the plaintiff was induced to advance money on the bill {g) ; because the tort was connected with the contract, and a married woman could not bind herself or her husband by contract ; but now by sect. 1, sub-sect. 3, of the Married "Women's Property Act, 1882, she can bind her separate estate by contract, and as she can make a binding contract she is liable for a false representation inducing the contract. (a) Peto V. Blades, 5 Taunt. 657. (A) RMon V. Eaton, 1 T. E. 62. {e) Uowlett V. llasueil, 4 Camp. 118. Oreen v. Greenbank, 2 Marsh. 485. (d) Grove v. Ncvill, 1 Keb. 778. {f) Johnson v. Pye, 1 Sid. 258 ; 1 Lev. 169; 1 Keb. 913. Liverpool Adelphi Loan Association v. Fairhurst, 9 Exch. 430. BartUtt v. Wells, 1 B. & S. 836 ; 31 L. J., Q. B. 57. Price v. ILeuctt, 8 Fxch. 146. Stikeman v. Dawson, 1 De G. &Sin. 113. (/■) Liverpool Adelphi Loan Association V. Fairhurst, 9 Exch. 429; 23 L. J., Ex. 164. (.: ir' ■■ 790 STATUTOUY COMPENSATION. [ciIAl*. XIII. 762 is tLj result of negligenoo, an action for damagoa must bo brought, and the matter is not within the cognizance of the statutory tribunal appointed for settling the amount of statutory compensa- tion (/■). Injuries niahUMtKj a right to statutn, ij compensation — Com- pulsory purchase of land— Land ^'^ injuriously affected." — Where land has been taken under the provisions of the Lands Clauses Consoli- dation Act (8 & 9 Vict. c. 18), the claimant, the land-owner, is entitled to compensation not only for the land actually taken, but also in respect of the residue of his land being "injuriously affected " (see sects. 63, 08) by the execution of the works, although the injury may be of such a nature that an action for damages would not have been maintainable in respect of it ; for it has been said, that where the owner is turned out of his property by a com- pany under compulsory powers of purchase, the company is bound to compensate him for all the loss occasioned by the expulsion, as in trespass for expulsion (/), but this doctrine is not to be extended ; and at all events, where the portion of land taken is separated from that alleged to be " affected " by land belonging to another person than the claimant, there is no right to compensation («i). A rail- way company authorized to construct a line of railway under a public street is not bound to give notice to treat or pay compensa- tion to the owner of the land adjoining the street in respect of any part of the soil of such public street ; and a cul de sac dedicated to the public is for this purpose in the same position as a public street (»). Injuries giving a right to statutory compensation — Compulsory jmrchase of buildings. — The 92nd section of the Lands Clauses Act, 8 & 9 Vict. 0. 18, provides that no person shall be required to sell to the promoters " a part only of any house or other building or manufactory," if such person is willing to sell the whole (o). All fixtures, whether they are tenant's or landlord's fixtures, form part of the premises which the company may be required to value and take(/j). Where a manufactory was partly worked by water- power supplied by a reservoir, which in its turn was supplied by a (/) Clothier \. Webster, 12 C. B., N. S. 79U ; :U L. J., C. P. 310. V'hitehome V. J>/:owe.i, 10 C. B., N. S. 705; 30 L. J., C. P. SOo. ataiiiton v. Woolnjeh, 2'i Eeav. 233 ; 26 L. J., Ch. 300. Coats V. C/dience Itiiil. Co., 1 Euss. & M. 181. (/) JiM V. Hull J)oek Co., 9 Q. B. 457. lit re Stockport, ^'C. Rail. Co., 33 L. J., Q. B. 251. Jhike of Jhtccleueh v. Metropolitan Hoard of Works, L. R., 3 Ex. 307 ; o Ex. 221 ; 5 H. L. 418 ; 41 L. J., Ex. 137. Holt V. Gas Light ^ Coke Co., L. R., 7 Q. B. 728 ; 41 L. J., Q. B. 351. Ripley v. Great Northern Rail. Co., L. R., 10 Ch. 435. (m) Rey. V. Etsex, 17 Q. B. D. 447 ; 55 L. J., Q. B. 313. (/() Soiieh V. Hast London Rail. Co., L. K., 16 Eq. 108; 42 L. J., Ch. 477. (o) Giles V. L.ondon, Chatham, ^c. Rail. Co., 1 Drew. & S. 406 ; 30 L. J., Ch. C03. Richards v. Swansea Tram- tea ys Co., 9 Ch. D. 425. In this coun- try a comi)any ia not required to take more lands than are required for its purposes ; but in the estimation of the damages, not only the value of the land taken, but also the injury to that not taken, is included. Wood on Rail- way Law, Chap. XIII. {p) Gibson v. Llammcrsmith Rail. Co., •Z Drew. & S. 603 ; 32 L. J., Ch, 337. i:i!ii:: CHAP. XIII.] BUILDINGS TAKEN FOU VVBUV I'U1{1'0SES. 791 goit, into which water was turned from a natural stream at some 753 distance from the manufactory, and at the point where the goit commenced there was a weir, with sliuttles to regulate the supply of water to the goit, and a mill-houso for the residence of a man to see to the shuttles, and the railway company proposed to take the weir, shuttles, mill-house, and part of the goit, it was held that thoy must take the manufactory also (q). So a vacant piece of land in front of a public-house, not separated by any fence from ^:ho street, which has been alwaj's treated as passing to the lessee of the public-house under a demise thereof, and forms the only means of approach for vehicles coming to the house, is part of the " house " within the meaning of the section (r). And where there was a paddock which opened by a door in one comer into an enclosure of house and garden, it was held that the paddock was part of the house (.s). But, although the company may be com- pelled to take whatever is thus necessary for the convenient or profitable occupation of the house or manufactory, they cannot be compelled to take what is necessary only for the personal use or convenience of the owner for the time being. Where, therefore, the plaintiff, the proprietor of a house and six acres of land on one side of a road, bought several acres of land on the other side, upon which he kept cows and horses requisite for his family and establishment, which was a largo one, and built, or found built thereon, a cottage, Avhich he used for the residence of his grooms, it was held that the last-named land was not part of the " house " within tbo meaning of the section (t). It makes no difference that the grounds are used partly for ornament and partly for business purposes, e.g., growing plants, &c., for sale, if the company propose to take part of that which is used for ornament and can fairly be considered as part of the house as a resi- dence (m) . Injuries giving a right to atatutory compensation— Comjmhory purc/iase of mines. — It is provided by the Railways Clauses Con- solidation Act that a railway company is not to be entitled to the mines under land which it purchases, but that those mines are to be treated as excepted out of the conveyance to the railway com- pany, unless they are specifically and expressly included. If, however, the owner, lessee, or occupier of any mines lying under the railway is desirous of working them, he must give the directors notice thirty days before commencing to do so. On the receipt of (>i) Furnisav. Midland Jiail.Co.,L.'R., («) Barnes v. Sotithsca Rail. Co., 27 6Eq. 473. Ch.D. 536. (r) Mar»on v. London, Chatham, S[C. (t) Steele v. Midland Rail. Co., L. R., Rait. Co., L. R., 6 Eq. 101 ; 37 L. J., 1 Ch. 275. „...,„ ., pi, jQo * (u) Salter \. Metropolitan DistnH Rail. ^ ' ' Co., i. R., 9 Eq. 432 ; 39 L. J., Ch. 667, ?S 1 'i IF ■I' : I J Pi 1 1 H M I I ! , ml i 1 792 STATUTORY C'OMPKNSATION. [cilAl'. XIII. 754 the notice the directors may cause the mines to be inspected ; and, if it appears to tliem that the working of the mines is likely to damage the works of the railway, and if the company are willing to make compensation for the mines to the owner, lessee, or occupier, he cannot work the mines. If the company and the owner, lessee, or occupier cannot agree as to the amount of the compensation, it must be settled as in other cases of disputed compensation (x). The word " mines " in sect. 77 of the Act includes minerals got by open workings, and, therefore, a bed of clay may be dug and worked by the landowner after conveyance of the land to the com- pany, unless the company are willing to make compensation (//). A railway company having already acquired surface lands may subsequently purchase, either compulsorily or by agreement, the mines under those lands, notwithstanding sect. 77 and the follow- ing sections of the Act (z). The railway company are not bound to any fixed period, after receiving notice from the mine owner, within which f.hey must give a counter notice. They can stop the working of the mine at any time thereafter that they fear danger to the line, by a notice of their willingness to pay compensation for the minerals which they desire to be left standing (a). If a railway company has pur- chased the surface without the minerals, the owner has the right to work the mine, even to the letting down of the surface, provided the working is according to the usual way in the district (b). The railway company is under no obligation to compensate any person until there is some one who has a right to work, and who is prepared to Avork, the mines. When that person gives the notice of his intention to work the mines, the directors are to come to an agreement or settlement with that person, according to what his rights may be. If his rights are to take away the coal and exhaust it entirely, and if he has a tenure the length of which will enable him to take it away and exhaust it entirely, the directors are bound to compensate him to an extent equal to the whole value of the minerals. But, if he cannot take away the whole, or if the extent of his tenure is not such as would enable him to take away the whole, the directors will have to compensate him to the extent of his interest. In the last case the reversioner will also be entitled to compensation in respect of his interest, but only on the footing that tie compensation to be paid to the (x) 8 & 9 Vict. c. 20, 8. 78. (y) Midland Hail. Co. v. Haunchwood lirick Co., 20 Ch. D. 652; 51 L. J., Ch. 778. (i) Errington v. Metropolitan District Bail. Co., 19 Ch. D. 659 ; 61 L. J., Ch. 306. («) Dixon V. Caledonian and Glasgow and tS. W. Rail. Cos., 6 App. Cas. 820. (*) rountmy v. Clauton, 11 Q. B. D. 820 ; 62 L. J., Ch. 66'. i " .T^"- « ■■7^j((-n»"^i^»'i ■ ■puj.pi|iiiu^^W«UM CHAl'. XIII.J INJURY WllKlJi: NO LAND TAKICN. 703 after 765 lessee nnd reversioner together is not to exceed the whole value of the minerals ; and, if the lessee has given the notice and received his share of the total compensation payublo by the railway company, the reversioner cannot give a notice and claim to work the coal, but will only be entitled to his share of such total com- pensation (r). ^iijnrics (jh'iiKj a riijht to atatatori/ compenmfion — rroprrfi/ injured — Where no la ml han been tohvu. — Where no land has been compulsorily taken from the plaintiff under statutory powers, but the injury complained of has arisen from something done on land which has not been taken from the claimant, in order to found a claim for compensation, there must bo an injury and damage, not temporary but permanent, peculiarly affecting the house or land itself, in which the person claiming compensation has an interest (^/). Where, by the construction of works, there is a physical inter- ference with any right, public or private, which the owners or occupiers of property are by law entitled to make use of, in con- nection with such property, and which right gives an additional market value to such property, apart from the uses to which any particular owner or occupier might put it, there is a title to com- pensation, if, by reason of such interference, the property, as a property, is lessened in value {d). Compensation, therefore, must be paid for the loss of any natural right or easement belonging to land, such as the right to the flow of a stream, a right of way, oj; the right to light. In cases of railway compensations, it has been held that the occupier of a house and shop adjoining a railway is entitled to the statutory compensation for damage sustained by him in con- sequence of the dust and dirt from the railway works having pene- trated his shop and damaged his goods {e). Injuries giving a right to statuton/ compensation — Interference uith easements. — ^A railway company cannot, under sect. 16 of the Eailway Clauses Act, permanently divert the course of a private river, unless it be necessary for the construction of the line : a mere saving of expense to the company is no justification (/). Where the company have power to divert a portion of a brook only, compensation cannot be claimed for the loss of the stream, but (c) Smith V. Great Western Hail. Co., 3 App. Cas. 165 ; 47 L. J., Ch. 97. (rf) Metropolitan Board of Wurks v. McCarthy, L. R., 7 H. L 243 ; 43 L. J., C. P. 385. In thia country there can be no recovery for damages resulting from the construction of a railway, unless some portion of the plaintiff's land was actually taken for the con- struction of the road. 2 Wood's Rail- way Law, Chap. XIV. {e) Knock v. Metropolitan Itail. Co., L. R., 4 C. P. 131 ; 38 L. J., C. P. 78. I^asl ij- West India Docks v. Gattke, 3 Mac. & G. 155; 20 L. J., Ch. 17. (/) Piigh V. Golden Vallty Hail. Co., 15 Ch. D. 330 ; 49 L. J., Ch. 721. w > mif iiifM!m.wtimiui>.mfi iiP9|^«>?. , 704 STATUTORY COMrKNSATION. [c'HAP. XIII. only BO far as tho divcrBion of the quantity token injuriously airocts 756 the plaintiff's land {(j). But, where tho company liave power to divert llio whole stream, and have given notice of their intention BO to do, thoy must make compensation at once for the whole value of the interest oi the claimant in the stream, and are not entitled merely to compensate him from time to time according to tho quantity actually taken (//). So, if a private way of tho land- owner has been obstructed, or his enjoyment of it rendered less convenient by reason of its being crossed by a railroad (/), or tho light coming to his liouso has been impeded (/•), a case for the statutory compensation is made out. A house was divided into a front and a back block. Tho tenants of tho back block had to pass through a hall and up some stairs. A railway company in the exercise of their powers took down the front block, and removed the hall, and thereby lessened the value of the back block : it was held that tho access through tho hall was not a way of necessity, but was a continuous and apparent easement which passed under tho demise of the back block, and that an interference with this easement gave rise to a valid claim for compensation {I). Injitnes giving a right to statufori/ compciimtion — Interference uith public rights. — The landowner will also be entitled to compen- sation where his property has been depreciated in value for all puri)0se8, and not merely for some special pui-pose only, by tlie interference of the company with some public right, as, for instance, if the means of access to his house or land from the highway has been rendered less convenient from the highway being raised or lowered (in) ; or if the house has been permanently depreciated in value from the highway being narrowed («), or diverted (o), or stopped up(/)). Where a local board of health gave notice to the owner of a house abutting on a street to level and pave it, and, in default of the owner, they did the work them- selves, and, by the alteration so caused in the level of the street, the access to the house was rendered diflScult and dangerous, it was {g) Btishv. Trowbridge V'uterivorks Co., L. R., 19 Eq. 291 ; 10 Ch. 459 ; 44 L. J., Ch. C46. (/() Stuue V. Mayor, <$•<•., of Yeovil, 2 C. P. D. 99; 47 L. J., C. P. 137. Before an entire stream can be taken, the company must proceed to have the amount of compensation assetiscd, and paid or deposited, or security given, in the mode prescribed by the statute : and the court will by injunction restrain them from diverting the stream, unless they have complied with the statutory requirements {Verrand v. Mayor, SjC., of JUndford, 21 Bcav. 412). (i) Glover v. North Staffordthirc Rail. Co., 16 Q. B. 912. Moore v. Great South i- Western Rail. Co., 10 Ir. C. L. Ecp. 46. {k) Eagle v. Charing Cross Rail. Co., L. R., 2 C. P. 038 ; 30 L. J., C. P. 297. (/) Ford V. Metropolitan Rail. Co., 17 Q. B. D. 12 ; 55 L. J., Q. B. 296. (w) Chamberlain v. If'cst-End of Lon- don, 4-e., Rail. Co., 2 B. & 8. 005, 617 ; 32 L. J., Q. B. 173. Reg. v. St. Luke's, L. K., 6 Q. B. 672 ; 7 Q. B. 148 ; 41 L. J., Q. B. 81. {«) Jleekett v. Midland Rail. Co., L. R., 3 0. P. 82; 37 L. J., C. P. 11. (o) Caledonian Rail. Co. y. Walker's Tnis/cfs. 7 App. Caa 259. (p) ll'adham v. N. E. Rail. Co., 14 Q. B. D. 747 ; 16 Q. B. D. 227. I CHAl*. XIII.] NO COMrKNSATlON. 796 as, for Ir. C. L. 757 liold that tho owner was oiititlcd to coinpeuHation (7). Whoro theplaiiitiH was tho h«ssoo of a hou«o in cIobo proximity to n public draw-dock, which ()[ioncd into tlio Thames, and of wliieh, by reason of his proximity, his use for tlio purpoHos of his business was very constant, and, by reason of tlie destruction of tho dock, whicli was required for a i)ublio undertaking, tho phiintifl's premises were permanently diminished iu value, it was held that tho plaintiff was entitled to compensation (r). When sfa/iituri/ coinpfiitufilioii atiiiiol be cJainml — Si/ctirc of Htalutv. — Where no compensation is given by tho statute, that alTorda a reason, though not a conclusive one, for thinking that tho intention of tlio legislature was that tho thing complained of should only be done if it could be done without injury to others, and not that it should bo done at all events (h) . When stufiiloi'i/ coinpeiimttion etninot be claimed — Injni'ij not (U'tioiiuhh' at common hue, — Whero tho injury would not have formed a ground of action against an ordinary proprietor, if done by him, such injury cannot bo made a ground for compensation under the statute [t). Whero, therefore, tho New Iliver Company, iu tho exercise of its statutory powers, constructed some under- ground works on their own land v hich drew off tho water from the plaintiff's well, it was held that the plaintiff was not entitled to compensation under the statute, as tho company, in drawing off the water from the well, had not infringed any right of the plain- tiff, or done anything which would have rendered them liable to an action at common law, independently of tho statute (»). A similar decision has been made under the Public Health Act (11 & 12 Vict. c. G3), whero tho local board of health constructed u sewer, which caus( i tho plaintiff's houses, which, though erected ou old foundations, had within twenty years been built of a much more substantial character, to crack (x). So, where the tenant of a public-house claimed compensation for tho loss of profits he had incurred by reason of a railway company having, under statutory powers, purchased and pulled down tho adjoining houses, it was held that he was not entitled to compensation ; for, if any private person had purchased and pulled down the adjoining property, no (y) Reg. v. JFallagei/ Local Board, L. K., 4 Q. B. 351 ; 38 L. J., Q. U. 217. ()•) MitropoUtan Board of Works v. M'Carl/ii/, L. R., 7 H. L. 243 ; 43 L. J., C. P. 385. («) Hammersmith Bail. Co. v. Brand, L. R., 4 H. L. C. 171. Mctropuhtun Asylum District v. Jlill, App. Cas. 193 ; 50 L. J., Q. B. 353. (<) Bidet V. Metropolitan Bail. Co., L. R., 2 ILL. 175; 3G L. J., Q. B. 205. City of Glasgow Union Bail. Co. v. Hunter, L." R., 2 Sc. App. 78. Seo ante, pp. 11, 35. («) New Biver Co. v. Johnson, 2 El. & El. 435 ; 29 L. J., M. C. 93. Beg. v. Metropolitan Board, i?f., 3 B. & 8. 710 ; 32 L. J., Q. B. 105. (x) Hall V. Mayor of Bristol, L. R., 2 C. P. 322; 36 L. J., C. P. 110. U- i'-; 786 STATirroKY COMI'KNHATIO.N. [cilAI'. XIII. c I I'M 5f! '■"y '!■:■: 758 ait Ion would havo lain against him (//) ; and, wliero a puliHo turnpike road is crossed by a railway, and no spocial damage liaa boon sustained tlioroby, and no injury or inconvonicnco, diirnrcnt in kind, although it may bo greater in dogroo, has boon suffered by a complaining party than that which ih common to all the (iuccn's subjects passing along such public highway, there is no ground for statutory compensation, for no action for damages would be maintainable (s). W/ien sfafnfoi'i/ rompciisnfion rrtiniol be claimctl — LitHifn ajfcctid vol coufiniioKH irif/i /niu/n takvu. — Whore ^ho lands alleged to bo " injuriously affected" are separated fr he land taken by other land belonging to a person other than ./iaimant, no claim for ooniponsation can be sustained {ti). When Htdtutovji compvnuatlon ciDinot he vlaiiiicil — ])niii(i(/e fo fradr. — There nre, however, many cases in which, all hough there Avoidd be a right to damages against an individtuil, there is neither a right of action nor a right to componFation agiunnt a company acting under the provisions of the liands Clauses Acts. A railway company, authorized to construct works on its own land, may lawfully do acts which no private proprietor could havo done without being liablb to an action ; and, although the railway company is bound in many cases to make compensation to the adjoining owners, yet, whereas the right to compensatioji can only orise when an individual, in the place of the company, would have been liable to an action, the converse does not hold good. A mere personal inconvenience, or obstruction, or a damage occasioned to a man's trade or the goodwill of his business, will not be a puflficient ground for compensation, although of such a nature that it might, but for the Act of Parliament which authorizes the doing of the thing occasioning the injury, have been the subject of an action against the person occasioning it (b). "Where a public body, in exercise of an Act of Parliament, lowered the roadway of a street, it was held that the occupier of a house in the street was not entitled to be compensated for the indirect injury to his trade, resulting from the diversion of traffic caused by the authorized act of lowering the roadway (c). So, also, if a highway has been narrowed and premises abutting thereon have been rendered less suitable for shops or a public-house, no compensation will bo Ilk i'i^'^;'i' (y) lifff. V. Vaiighmi, L. E., 4 Q. B. 190 ; 38 L. J., M. C. 49. {z) Caledonian Hail. Co. v. Ogilvy, 2 Maoq. So. Ap. 230. Riekel v. Metropolitan Bail. Co., L. R., 2 H. L. 176 ; 36 L. J., Q. B. 205. See, however, Fritz v. Hobaon, 14 Ch. D. 642; 49 L. J., Ch. 321. London and North Western Rail, Co. v. Smith, 1 Mac. & G. 210. (rt) See Ittg. v. Essex, ante, p. 752. [It) Metropolitan Hoard of ICorhs v. M'Carth;/, L. R., 7 H. L. 243 ; 43 L. J., C. r. 386. Caledonian Rail. Co. v. ll'alker^s Trustees, 7 App. Cas. 269. {c) Itigg V. Corporation of London, L. R., 16 Eq. 376. vr. xiii. CHAP, xni.] NO COMPKNSATION'. 797 a pul)lio ingo li'is Foreiit in rod l>y a (iuocn'H oinul for 'ould be H ofjh'tid I'd to bo by othor laim for ? to frddc. ro would neither a company L railway iiid, may avo dono I railway m to tho can only )uld have I damage , will not a nature /rizes the lubjeot of a public adway of trcot was his trade, uthorized has been lercd less will bo p. 7.52. lyvrkH V. J; 43 L. J., ail. Co. V. 259. London, L. 759 payable {d), unloss tho narrowing of tho road sensibly inter- feres with the light and air coming to a house, or pormanenlly dopro- eiatos it in value for all purposes, so that it is wortli Iohs to lot as a house, and not with reference to any particular trade {r). And where the injury is sulRciont to substantially lesson tho value of the property the owner is entitled to compensation for injury done during the execution of tho works {/). When nf (if II fori/ comjwiisdfiuii aniiiot l>e vlnimcd — Claim in case of abandonment, — Where the company's Act provides that in case of abandonment t.io deposit shall be applicable towards compensating owners whose property is injured by tlio commencement, construc- tion, or abandonment of tho railway, a landlord cannot as a ride recover on account of any collateral obligation entered into by the company, such as a covenant to put up fences {ij) ; but he can recover where the company has entered into an obligation, the breach of which is necessarily involved in tho abandonment of tho railway and inseparable from it, such as a covenant to build a railway station (//). When sfatiifori/ compensation cannot f)e claimed — Damar/c oeca- nioned hi/ icorhiiKj the vailiaiij. — Ho, again, whore tho injury is occasioned, not by tho construction, but by tho working of the railway, tho land is not injuriously affected within tho meaning of the Acts, and there is no right to compensation (/). Thus, in the case of injury to adjoining houses by the vibration caused by trains running in tho ordinary manner, without negligence, after the line is opened for traflic, or by the noise and smoke of the trains, although the right of action is taken away, there are no provisions either in the Lands Clauses or llailway Clauses Acts under which a person whose house is so injured can recover com- pensation (/i). So, where a railway company, under the authority of their Act, constructed across a river, half a mile above an ancient ferry, a railway-bridge and a foot-bridge, and, the foot- bridge being used by persons going to the railway station and other places, the traffic across the ferry fell off and the ferry was given up, it was held that the injury having been occasioned, not by the construction biit by the working of the railway, the ferry had not been injuriously affected within the Lands Clauses Act (rf) E. V. London Dock Co., 6 Ad. &. E. 163. (e) Ante, p. 757. {/) Ford V. Metropolitan Rail. Co., ante, p. 696, dissenting from observa- tions of Lord Chelmsford iu liicket v. Metropolitan Rail. Co. (g) In re Ruthin and Cerrig Railicay Act, 32 Ch. D. 438. (A) /J. per Cotton and Lindley.L.JJ., diss. Lopes, L. J. (i) Caledonian Rail. Co. v. Walker's Trustees, 7 App. Cas. 259. Reg. v. Fssex, 17 Q. B. D. 454. See Wood's Kailway Law, Chap. XIV. (/.) Brand v. Hammersmith Rail. Co., L. R., 1 Q. B. 130 ; 2 ibid. 223 ; 4 H. L. 171 ; 38 L. J., Q. B. 265. City of Glas- gow Union Rail. Co. v. Hunter, L. R., 2 H. L. So. 78. See London and North Western Rail. Co. v. BradUij, 3 Mao. & G. 336 ; 6 Rail. Cas. 556. 1 ros STATUTORY COMPENSATION. [cHAP. XIII. m\ m n y i\ ?' I llM^' 1' i i 760 or the Eailway Clauses Act, and the owner was not entitled to compensation (/). Statutory compcmntion — How obtained — Notice of the claim. — Every owner and occupier whose land has been taken by a piibli(^ company for public purposes under statutory powers, or whose land has been injuriously affected by the execution of works of a public nature authorized by statute, must give notice in writing to the railway or other company, declaring whether he desires a settle- ment by arbitration or by the verdict of a jury, and stating in such notice the nature of his interest in the lands in respect of which he claims compensation, and the amount claimed by him, /. e., such particulars of his estate or interest as will enable the com- pany to form a proper judgment respecting the claim (»»). If he deaires an arbitration, and gives the requisite notice, and the com- pensation claimed is not paid, or agreed to be paid, he will be entitled to have the amount of the compensation settled by arbi- tration pursuant to the provisions of the statute («). If, on the other hand, he desires to have the amount of compensation settled by the verdict of a jury, and gives the requisite notice, and the amount claimed is not paid, or agreed to be paid, the railway company are bound, within twenty-one days after the receipt of the notice, to direct the sheriff to summon a jury for settling the amount of compensation in the manner provided by the statute, and in default thereof the company are liable to pay to the party injured the amount of compensation claimed, and the same may be recovered by action in any of the superior courts (o). Where the owner of land taken by a railway company gave notic of his desire to have the amount of compensation settled by a jury, and,, before the expiration of the twenty-one days limited by that section for the company to issue their warrant to the sheriff to summon a jury, the owner gave a second notice of his desire to have the question settled by a special jury under sect. 64, which fixes no time for the issuing of the warrant, it was held that the company were bound to issue their warrant for the special jury within twenty-one days after the receipt of the first notice or pay the compensation claimed {p). How obtained — Assessment of damages. — The face of the claimant being entitled to the compensation he seeks is a condition precedent to his right to avail himself of the machinery provided by the (/) Hopkins V. Great Northern Hail. Co., 2 Q. B. D. 224 ; 46 L. J., Q. B. 266. (m) Heeley v. Thames Valley Rail. Co., 34 L. J., Q. B. 65. Cameron v. Charing Cress Rail. Co., 19 C. B., N. S. 764 ; 33 L. J., C. P. 313. In this country Bpocial provision for compensation is made in each State, either by general statute or in the Act authcriziu^, the taking. Generally, either commis- sioners are appointed to appraise or a jury to assess is provided for. See 2 Wood's Railway Law, 832— 8 ''-7. («) 8 & 9 Vict. c. 18. ss. 25—37 ; see 46 & 47 Vict. c. 15. io) 8 & 9 Vict. c. 18, 8. 68. Ip) frfyit V. Abcrdare Rail. To. 6 C. B., N. S. 359; 28 L. J., C. P. 271. p. XIII. entitled ^laim. — I pvibli?' • wliose rks of a iting to a settle- in Buch )f whicli im, i. c, ;lie com- , If he the com- will be by arbi- ', on the n settled iice, and ) railway eceipt of tling the B statute, he party ame may Whero 0" of his ■.rt » (?. - Twr!7?y^*Wrr'»0TWTYrW7W'»"<«V?W^WT^''^'^^ iiry, and, it Bection summon have the fixes no company y within pay the claimant »recedent i by the commiB- praise or a for. See 6— 37 ; see ^'o.,6C. B., Ill- CHAP. XIII.] TITK HKMKDY. ro9 761 statute ; and it is not competent to the sheriff's jury or arbi- trator to determine the right, which it is for the court to decide upon afterwards, but only the amoimt (7). If the claimant has no title to compensation, the whole proceedings before the arbitrator or a ju-y are coram noii Jitilice {r), of whidi the company are entitled to avail themselves in answer to an action on the award (s). Under the powers of the Public Health Act, 1848 {f), a local board made a sewer, and in so doing cut a trench through the claimant's land, and the local board contended that no damage had been thereby done to the claimant, but the claimant con- tended that he had sustained damage, and was entitled to com- pensation, and it was held that this clearly was a dispute as to the amount of compensation to be settled by arbitration, and that, if the arbitrator found the damage nominal or infin'';esimally small, he might find the amount of compensation to be nil{u). But, when there is a dispute as to whether the act complained of was done by the local board, or as to some matter of fact which would, if found for the local board, show that there was no liability to make compensation, then the dispute is not within the jurisdiction of the arbitrator. Neither the jury nor an arbitrator has any jurisdiction to in- quu'e into collateral matters, creating a head of damage distinct from the damage flowing from the exercise of the statutory powers, unless the parties mutually consent to refer such matters to them for their decision (.r) ; and in an action on the award the arbitrator may be examined, to prove what was the subject- matter into which he was inquiring, and upon which his judgment was founded, but not as to the motives which induced him to arrive at the particular sum awarded (//). Where the value of the {q) Reg. V. London and North Western Rail. Co., 3 Ei. & Bl. 405. Read v. Victoria Station arid FimUco Rail. Co., 1 H. & C. 826 ; 32 L. J., Sx. 170. Hor- rucks V. Metropolitan Rail. Co., 4 B. & S. 315; 32 L. J., Q. B. 367. Reg. v. Metropolitan Commissioners of Seivers, 1 El. & Bl. 702. Netvbold v. Metropolitan Rail. Co., 14 C. B., N. S. 405. Chap- man V. Monmouth Rail. ^-c. Co., 11 Exch. 267 ; 27 L. J., Ex. 97. liarber V. Nottingham ^ Grantham Rail. Co. 15 C. B., N. S. 726 ; 33 L. J., C. P. 193. ^.VJI>!W;«^f>ir^W). A mandamus will go to an arbitrator, commanding him to give compensation in respect of lands being injuriously affooted by the formation of a railway, or the construction of public works, executed under statutory authority {c) ; and, if after a railway has been made, and compensation given, fresh damage has been sus- tained from the execution of the railway works, the question whether the railway company is bound to make compensation in respect of this subsequent damage may bo determined on a claim for a mandamus (d). Injunction to prevent iinnecessari/ injury from the execution of statutory powers. — The statutory right to compensation given by Act of Parliament to persons sustaining injury from the exercise of statutory powers, decs not abrogate the regulating and re- straining jurisdiction of the court; for nothing would be moro pernicious than to leave the large and ample powers so frequently conferred by Act of Parliament free from all control. The powers conferred by the Lands Clauses Acts in derogation of individual rights must be exercised with moderation and discretion, and with a reasonable regard to the rights of other persons, and not in a careless or vexatious way ; and, when the company can construct their works without injury to private rights, they are, in general, bound to do so. Thus, whore a railway company, in executing works authorized by their statutory powers, took insufEcient pre- cautions to ensure the safety of an adjoining house, the court granted an injunction to restrain the further negligent exercise of their powers, and an inquiry as to damage already done (e). So, where a railway company for the construction of their works erected a mortar-mill on part of their land unnecessarily close to the place of business of the plaintiff, and caused a nuisance by the noise and vibration from the mill, the court granted an injunc- tion (/). So, where a railway company, in the exercise of their statutory powers, commenced the bmlding of a bridge across a mill-race in such a way as to diminish the full force of the current and lessen the working power of the mill, the Lord Chancellor by injunction prevented the erection of any bridge over the stream with arches of less dimensions than those recommended in the report of a particular engineer {y). Here it was shown that the :...J (ft) Reg. V. Commisiioners of Woods and Forests, 15 Q. B. 774. (c) Keg. y. Mynd, 9 L. T. R., N. S. 27. (rf) Reg. V. Aire and Calder Navigation Co., 30 L. J., Q. B. 337. R- v. Leeds mid Selby Rail. Co., 3 Ad. & E. 690. (e) Jiifcoe v. Great Eastern Rail. Co., L. R., 16 Eq. 636. (/■) Ihiwic/c V. £ast London Rail. Co., L. K, 20 Eq. 644 ; 44 L. J., Ch. 602. {a) Coals V. Clarence Rail. Co., I Huse. &M. 181. CHAP. XIII.] THE KEMEDY. 807 769 bridge was altogothor wrongly oonstnictod, and the work negligently and unskilfully done ; but, whore there is no proof of negligence, and the accruing injury arises naturally and neces- sarily from the doing of what is authorized to be done, the court cannot interfere, but must remit the injured party to the statutory compensation for the damage, where that is provided {h). But the company are not necessarily confined to any particular modo of executing their works, provided they act fmii^ Jidc and upon good advice, and so as not unnecessarily to interfere with the landlord's convenience (/). Where a public body requires part of lands or buildings for the purposes of their undertaking, they may do so without taking the whole ; and they cannot take the whole when they do not bond Jiilc require it and the owner only wishes to sell part (/.). Injunction to prevent tnisnse of land acquired under statutory authority . — Acts of Parliament compelling landowners to part with portions of their property for purposes considered beneficial to the public, are regarded as contracts made by the legislature on behalf of all persons interested under them ; and the purposes for which the land is taken are of the essence of the contract, so thAt the landowner may obtain an injunction to restrain the company from taking the land for another and different purpose (/), or from devoting it to such purpose, if they have already taken it(H/). " The principle is this, that when persons embark in great under- takings, for the accomplishment of which those engaged in tliera have received authority from the legislature to take compulsorily the lands of others, making to the latter proper compensation, the persons so authorized cannot be allowed to exercise the powers conferred on them for any collateral object " (»). But, although this is so with regard to Acts of Parliament authorizing a com- pany of adventurers, for their own profit, to take compulsorily the lands of others, the case is different where the legislature has entrusted an existing public body, such as tlio corporation of a city, with authority to take lands compulsorily for the purpose of public improvements, an^^ )t for gain ; and in such case a more liberal construction as to i -poses for which the land is taken lail. Co., tail. Co., 602. 1 BuBIl'. (A) StainioH v. Metropolitan Board, 23 Beav. 232 ; 26 L. J., Ch. 300. liiddulph V. St. George's Vcstnj, 33 L. J., Ch. 411. (i) Wilkinson v. Hull Rail. Co., 20 Ch. D. 323. Lynch \. Commissioners of Sewers, infra. (k) Gard v. Commissioners of Seicrrs, 28 Ch. D. 486; 54 L. J., Ch. 698. Teiiliere v. St. Mary Abbotts, 30 Ch. D. 642 ; 66 L. J., Ch. 23. Lynch v. Com- misHoners of Sewert, 32 Ch. D. 72 ; 55 L. J., Ch. 409. (/) Flower v. London, Brighton, and South Coast Rail. Co., 2 Dr. & S. 330 ; 34 L. J., Ch. 540. (;h) Rostock v. North Staffordshire Rail. Co., 3 Sm. & G. 291 ; 4 El. & Bl. 798. See Carington v. Ifi/eombe Rail. Co., L. R., 2 Eq. 825 ; 3 Ch. 377 ; 37 L. J., Ch. 213. («) Lord Cranworth, C, Galloway v. Corporation of London, post, p. 770. u 808 STATITOKY COMrENSATION. [cilAl'. XIII. I ■» i 1 770 will prevail («) ; but thoy must still, of course, comply with the provisiouB entitling thorn to avail themselves of their compulsory powers (/>). Nor does the same strict construction prevail where lond is tukon, not conipulsorily under ii statute, hut in pursuance of an option reserved hy ngreoment infer pftrfin {>/). If nny imhlio body authorized to enter land and construct works in the execution of statutory powers, exceed the authority conferred upon thorn, and do acts uftra n'rcH, or octs which, though colourably under their powers, are not really authorized by such powers, the court will by injunction restrain their proceedings (;•), and confino them within tho limits of their jurisdiction (.s) ; " other- wise the result may be that, after your property has been taken and destroyed, after your house has been pidled down and a railway substituted in its place, you may have tho satisfaction of discovering that the railway company were wrong, and that a pecuniary com- pensation is tho only satisfaction you can receive for the injury " (/). Thus, where a local board of health withdrew their opposition to a railway bill, on the insertion of a clause that the bridges within their district were to have a certain gradient, and tho company could not make the bridges of such a gradient without encroaching on adjoining lands, against which the adjoining proprietor obtained an injunction, and tho company consequently made the bridges of a steeper gradient, the court granted a mandatory injunction to the company to alter tho bridges (»). So, whenever public bodies, acting in the exercise of statutory powers, have failed to comply with any condition imposed by statute for the protection of the public, the court will, as we have seen, by injunction prevent the exercise of the statutory authority, until the condition precedent has been strictly fulfilled (.r). Thus, it will restrain a railway company from using land for wliioh, and the injury to it, the compensation assessed under tho Lands (o) Galloway v. Corporation of Loudon, L. R., 1 H. L. 34. Quinton v. Corpora^ Hon ofJIristol, L. E., 17 Eq. 524. (p) Thomas v. Dan; L. R., 2 Ch. 1 ; 36 L. J., Ch. 201. See Oaid v. Com- missioners of Sewers, 28 Ch. D. 486. (7) JIutt V. Impninl Gas Co., L. R., 2 Ch. 158. See Cnriiigton v. V'ljcombe Hail. Co., ante, j). 709. (»■) See Att.-Gin. v. FAi/, S;c. Hail. Co., L. R., 6 Eq. 106; 4 Ch. 194; 38 L. J., Ch. 258, as to making a moro convenient road. («) Tinkler v. Wandnicorth Iiistrict Hoard, 2 Do G. & J. 273 ; 27 L. J., Ch. 342. As to contracts nllra vires, sco Taylor v. Chichester and Midhurst Hail. Co., 4 H. & C. 409 ; L. R., 2 Ex. 366 ; 4 H. L. 628 ; 39 L. J., Ex. 217. If tho shareholders havo ratified the act, sec Phosphate of Lime Co. v. Green, L. R., 7 C. P. 43. {t) Lun Navigation Co. v. North Mid- land Hail. Co., 1 Rail. C. 154. {11) Att.-Gen. v. Mid-Kent Hail. Co., L. R., 3 Ch. 100. (x) Gibson v. Jfammersmith Hail. Co., 2 Drew. & S. 603 ; 32 L. J., Ch. 337. Cosens v. liognor Hail. Co., L. R., 1 Ch. 594. See Kent Coast Hail. Co. v. London, Chatham, S/c. Hail. Co., L. R., 3 Ch. 656. The company will also be liable in trespass, if they havo taken the plain- tiff's land, without performing tho statutory conditions. Cranicell v. Mayor, ic of Londott, L. R., 6 Ex. 284 ; 39 L. J., Ex. 193. CHAP. Xlll.] HALK OF HUl'EKFLUOUS LAND. HOD 771 Clausofl A(!t liiiB not boon paid, although tho railway has boon opened for public use* (//). ]Jut, in cases where tho elFect of Buch an injunction would bo to make tho land utwless to both parties, an injunction will bo rofusud and a receiver appointed instead (3) ; nor will an injunction be granted to proven! the running of trains over tho land until its sale, whieh has been ordered by tho court (rt). Tho court ImH ul«o, it soenis, jurisdiction to restrain an opplication to I'arliamont (o enable a company to abandon tho formation of certain linos, and tho statutable contracts that they have made thereunder, or to restrain an improper application to Parliament for a private Act, though such a jurisdiction can hardly over bo exercised (^). "You cannot restrain a man from going to I'arlioment on public grounds ; . . . but, if he is going on in violation of a jjlain contract, which is personal to himself, with which the public interests have nothing whatever to do, you cannot, under the pretence that he is going to I'arliament, refuse the relief which, if there were no question about Parliament, this court would be bound to give " (<■). Sale of supcrJluoiiH land — liight of pre-emption. — Tho I'JTth section of the Lands Clauses Consolidation Act {d) provides that within tho prescribed period, or, if no period is prescribed, within ten years after the expiration of tho tirao limited by the special Act for the completion of the works, tho promoters of tho under- taking shall absolutely sell {e) and dispose of all superfluous lands, and in default thereof such lands will at the expiration of such period vest in and become the property of tho owners of the land adjoining thereto, in proportion to the extent of their lands respec- tively adjoining tho same. This section does not refer to the case of land becoming superfluous by reason of tho railway being abandoned or given up {d), or to land bought for extraordinary i (y) Walter v. Ware, ^c. Rail. Co., L. K., 1 Eq. 195. Field v. Carnarvon and Llanberiii Rail. Co., L. R., 6 Eq. 190; 37 L. J., Ch. 176. -SY. Germans iEarl of) V. Crystal Falace Rail. Co., L. I., 11 Eq. 668. Stretton v. Great Western Rail. Co., L. R., 6 Ch. 751 ; 40 L. J., Ch. 50. Tho vendor, however, has no lien for tho costs of the arbitra- tion : Ferrers (Earl) v. Staffurd and Uttoxeter Rail. Co., L. R., 13 Eq. 524 ; 41 L. J., Ch. 3G2. [z) Pelt V. Northampton and Banbury Rail. Co., L. R., 2 Ch. 100. Munns v. Jsle of Wight Rail. Co., L. R., 8 Eq. 663 ; 5 Ch. 414 ; 39 L. J., Ch. 622. (a) Lycett v. Stafford and Uttoxeter Rail. Co., L. R., 13 Eq. 261 ; 41 L. J., Ch. 474. (A) Steele v. North Metropolitan Rail. Co., L. R., 2 Ch. 237 ; 36 L. J., Ch. 640. In re London, Chatham, i^c. Rail. Co., Fx parte Hartridye, L. R., 5 Ch. 671. ((■) Per Bacon, V.-C, Telford v. Metropolitan Jlomd of Wurks, L. R., 13 Eq. 594; 41 L. J., Ch. 589. [d) 8 & 9 Vict. c. 18. («■) I.e., reserving' no interest. See London if' South Wextern Rail. Co. v. Gomin, 20 Ch. D. 562; 51 L. J., Ch. 530. But they may attach conditions or restrictions such as nrdinary vendors use for their own benefit. In re Iliyyins' Coutrael, 21 Ch. D. 96; 61 L. J., Ch. 772. l)f.HMU.»l>M.»li'-«l, 810 STATUTORY COMl'KNHATION. [fliAl'. Xlll. ii i ' 1^4 772 puq^ofOB, undor Bcet. 12 of tho Act (/). Ijand which is ro- quirod for tho making of acconimodatioti works which tho company arc compoUivhlo to nxiiko is not supprfhious land (). Where the owner of property injured by the act of another bona fide supposes that ho has a right to give the person injuring his property into custody, and there is a fair colour for the pro- ceeding, he is entitled to notice of action, though he was altogether mistaken in the assertion of his rights, and cannot justify the trespass under the statute {q). The protection afforded by the statute is not confined strictly to the owner of the property iiijured, ^>ut is extended to all persons who had a loud fide belief, founded on some grounds, that they filled the character mentioned in the stutute, and acted under that belief (;•) . If the plaintiff was found in the act of committing a malicious trespass, and the defendant had reasonable ground for believing that he had authority from the owner of tlie property to interfere, and take or give the plaintiff into custody, the defendant will be entitled to notice of action (s). But, as the statute only authorizes the arrest of per- sons " found committing an offence within the statute," the defendant must, if the plaintiff was not taken flagrante delicto, show that a malicious trespass had been committed : that the plaintiff was on the spot ; and that there was reasonable ground for believing that the mischief was still going on ; and that the plaintiff was the author or instigator of it {t). To whom to be given — Justices of the peace. — By the 11 & 12 f I ' t & E. 777. R., 6 (m) See the 24 & 26 Vict. c. 96, s. 103. (>i) Itobotsy. Orchard, 2 H. & C. 769; 33 L. J., Ex. 65. («) Downing V. Cupel, L. R., 2 C. P. 461 ; 36 L. J., M. 0. 97. {p) Griflith V. Taylor, 2 C. P. D. 194 ; 46 L. J., C. P. 15. (q) Beechey v. Sides, 9 B. & C. 809. Norwood V. Pitt, 6 H. & N. 801 ; 29 L. J., Ex. 127. ()•) Hughes v. Jiiickland, 16 M & W. 346. Horn v. Thornborough, 3 Exoh. 849. Chamberlain y. King, L. R., 6C. P. 474; 40 L. J., C. P. 273. U) Kine V. Evershed, 10 Q. B. 150. \t) Cann v. Ctipperlon, 10 Ad. & E. 588. liallinger v. Ferrie, 1 M. & W. 631. See Chamberlain v. Iving, supra. iiiPi.p. jnvjmi ifiiimiiii!! 810 NOTICE OF ACTION, [CIIAP. XIV. lit f c tfiM I < i i 'If' ^i;?^^F^ 778 Vict. 0. 44, 8. 0, it is enacted, that no action shall be com- menced against aiiy justice of the peace for anything done by him in the execution of his office, until one calendar month at least after a notice in writing of such intended action shall have been delivered to him, or left at his usual place of abode, by the party intending to commence such action, or by his attorney or agent ; in which notice the cause of action, and the court in which the same is in- tended to be brought, shall be clearly and explicitly stated, and upon the back thereof shall be indorsed the name and place of abode of the party intending to sue, and also of the attorney or agent, when the notice is served by an attorney or agent. Statutory clauses for the protection of magistrates in the exe- cution of the duties of their office, appear always to have been con- strued on the principle that, where the magistrate, with some colour of reason and bom Jide, believes that he is acting in pursuance of his lawful authority, he is entitled to protection, although he may have proceeded illegally or exceeded his jurisdiction (») ; and, where he acts in his magisterial capacity maliciously, and without bona fides, he is still entitled to the statutory protective preliminaries to an action, and to an opportunity of tendering amends. A magis- trate may act maliciously, and yet may have reasonable and probable cause for his acts. So he may be in the execution ot his duty, although he may act maliciously ; and in all cases where the substance of the complaint is that he has abused hi& power as a magistrate, he is entitled to notice of action (j-). The question as to whether the magistrate was acting in the execution of his office, is a question at the trial for the judge, and not for determi- nation by a jury {x). Wherever the magistrate has authority to act upon the subject- matter of the complaint brought before him, he must be considered to have acted by virtue of his office, altliough the place where the offence was committed was not within his jurisdiction (//). In a case where one magistrate acted alone in a matter which required the concurrence of two, it was held that he was acting in execution of his office, and was entitled to notice of action {z) . But to be entitled to the protection, the party claiming it must be actually o justice, accidentally committing an error, and not doing a wrongful act for his own benefit («). To uhom to be given — Constables. — Notice of action must be (m) Hazeldine v. Grove, 3 Q. B. 1006. Lawrenmn v. Hill, 10 Jr. Com. Law Rep. 504. (x) Kirby v. Simpson, 10 Excli. 3.58 ; 23 L. J., M. C. 166. (y) Prestidge v. Woodman, 1 B. & C. 12; 2D. &R. 45. {z) Welter v. Toke, 9 East, 3G3. [a) Morgan v. Palmer, 2 B. & C. 729 ; 4 D. & R. 283. Briaga v. Evelyn, 2 H. Bl. 114. T^ CHAP. XIV.] WHEN TO BE GIVEN. 817 779 given to special constables appointed under the 1 & 2 Will. 4, 0. 41 (/>), to metropolitan police constables (f), and to the county- police {(I). To whom to he given — Revenue officers and tax collectors. — Notice of action also is required to be given in respect of things done by toll-collectors on turnpike roads acting in pursuance of the General Turnpike Act (), If a toll or tax, though not legally payable, is demanded bona fide by a collector, who intends to act rightly, and has fair and reasonable groimds for believing that he has a right to demand the money, the collector s entitled to the statutory protection, and must have notice of action (/). But, if a revenue- officer, toll or tax-collector, improperly, and without colour of right, extorts money by vu'tue of his office, and in plain and manifest abuse of the statute under which he acts, he will then lose the statutory protection, and will not bo entitled to any notice of action. If he makes an improper seizure of goods, and then takes money as a bribe to deliver them up again, there is no statutory protection (>«). If he makes a wholly unauthorized charge, and is guilty of manifest extortion under a threat of legal proceedings, or the pressure of a distress («), he cannot shelter himself under the provisions of the statute. To tvhom to he given — Registrars and haiUffs of coimtij courts. — By the 9 & 10 Vict. o. 95, s. 138, notice of action, and of the cause thereof, is required to be given to all persons acting in pur- suance of that Act, one month at least before the commencement of the action. To tchoni to he given — Contractors, 8fc. under local hoards of health. — Notice of action is required to be given by the Public Health Act, 1875 (o), in any action for damage against any local authority, or any member or officer, or person acting in his aid. lust be B. & C. Ife C. 729 ; \y», 2 H. (h) Sect. 19, ante, p. 720. \c) 2 & 3 Vict. c. 71, 8. 53. Ante, p. 720, note. (rf) Ante, p. 720. (e) 3 Geo. 4, c. 126, h. 143. (/ ) Waterhouse v. Keen, 4 B. & C. 200 ; 6 D. & R. 267. (g) Oreetiwry v. Murd, 4 T. II. 653 ; and 39 & 40 Vict. c. 36, 8. 268. (A) 43 & 4t Vict. c. 19, s. 20. (i) 6 & 6 Wm. 4, c. 20, 8. 19. Thomas V. miliams, 1 D. & L. 624 ; 13 L. J., Ex. 87. (A) Daniel \. Wilaon, 5 T. R. 1. {/) Watei-house\. Keen, 4 B. & C. 211 ; D. & R. 257. («i) Ircing v. Wilson, 4 T. R. 486. («) Umphelby v. McLean, 1 B. & Aid. 42. (o) 38 & 39 Vict. c. 55, s. 264. In action for injunction no notice i8 neces- sary, see Flower v. Low Leyton, post, p. 782. 3a i • 1 f ! r : < .pi \ *f7«»77'*SV -T ■:' ITPI' r^'^r*^ !i Wi 4 ! ! J t i '. 818 NOTICE OF ACTION [chap. XIV. 780 for anything done nnder tlie provisions of tlie Act. A con- tractor who contracts with a local board of health for the digging of drains and wells and making excavations, is a person acting under the direction of the board within the 11 & 12 Vict, c. G3, s. 139 (repealed), and is entitled to notice of action for digging a hole in a public thoroughfare, and leaving it unguarded and without a light, although the board may not be liable for the contractor's act(7>). So a contractor is entitled to notice of action under the Metropolis Local Management Amendment Act (25 & 26 Vict. c. 102), who, in enlarging a sewer, under a contract with the Metropolitan Board of Works, has dammed it up, although ho has been guilty of negligence in not pumping away the sewage water which had accumulated, and which in consequence flowed into the plaintiff's house (17). But, where the injury is caused by the negligence of his servant, in leaving his cart unattended in the public streets, and the horse runs away and causes damage, ho is not entitled to notice {>•) . Nor is a person who receives notice to drain his house under the 106th section of the 25 & 26 Vict. c. 102, and who in so doing commits a trespass by laying the drain-pipe in the land of another, entitled to notice (s). To ic/ioin to be given — Suvvcyors (duI persons acting in execution of the Iliglmaij ^c^s.— The Highway Act (o & 6 Will. 4, c. 50, s. 109) requires notice of action to be given for anything done in pursu- ance of the Act. Where, therefore, a surveyor of highways loft an obstruction of gravel and sand in a highway, and had notice to remove it, and failed so to do, it was held that he was entitled to notice of action {t) ; and, where a highway board, with their sur- veyor, trespassed upon private grounds, and broke down a private gate in the assertion of a supposed right of way Avhich had no existence, it was held that they were entitled to notice of action. *' The defendants," observes Lord Denman, " might believe that they were acting in execution of the power to remove obstructions in public roads without coming to a very irrational conclusion. The argument against it is, indeed, founded on a specific clause, which prescribes a different course of proceeding to this end ; but we are not prepared to hold that officers of this description are bound to argue on a comparison of clauses in a long Act, and to decide correctly " («<). Wherever, therefore, a surveyor is acting bona fide in his public capacity as surveyor, he is entitled to notice of action (*). {p) Newton v. Ellis, 5 El. & Bl. 115 ; 24 L. J., Q. B. 337. (?) Fouhum V. Thirst, L. R., 2 C. P. 449 ; 36 L. J., 0. P. 225. (r) Whatman v. Fearson, L. R., 3 0. P. 422. («) Domt V. Slater, 38 L. J., Q. B 159. {t) Davis V. Curling, 8 Q. B. 292. [u) Smith V. Hopper, 9 Q. B. 1014. [x] Hardivick v. Moss, 7 H. & N. 136 ; 31 L. J., Ex. 207. . XIV. ^ oon- ring of under B. 139 a bole vitliout ractor's ier the 6 Vict, itli tlie ugh he sewage ! flowed used hy d in the gre, ho ia lotice to t. 0. 102, :ain-pipe ?cution of 0, s. 109) [n pursu- vays left notice to ititled to ;heir sur- a private had no ,f action. [ieve that itructions inclusion, c clause, lend; hut (tion are •t, and to is acting to notice CHAP. XIV.] WHEN TO BE GIVEN. 811) w 781 A person acting as surveyor under an appointment in fact, though an informal and illegal one, is, nevertheless, entitled to notice of action, if he was acting in what he did in the boud fide belief that he had been properly appointed (//) ; and so is a sur- veyor who has received payment under an informal assessment, made apparently under a repealed Act, but who hoiiu fide intended to act according to the duties of his office, and in pursuance of the statute authorizing him in that behalf (s). To xchom to he (jicen — Corporafioiifi and coinpanics. — The right to notice of action has been extended by numerous Acts of Parliament to all sorts of trading corporations, joint-stock companies, and associations called into existence by statute for a variety of local and private purposes, and purposes of gain, so that, whenever an action of tort is brought against a company or association which is incorporated or regulated by statute, or derives its powers from some special Act of Parliament, or against the ofRcers of any such company or association, it will, in general, be necessary to give notice of action. This will be found to bo the case in actions against many of the gas companies or their officers for things done by them under the powers or in pursuance of their several Acts of incorporation, also against certain railway companies (a), when there has been an omission of some duty imposed upon the com- pany by the Act, such as the non-repair of fences, or the charging or levying excessive tolls under the powers of their Act of incor- poration (b) ; but, when the action is brought against them for a breach of their duty as common carriers, no notice of action is requisite (c). Neither the Lands Clauses nor the Companies Clauses Con- solidation Acts contain any section requii'ing notice of action to be given to companies in respect of things done by them under the authority of those statutes ; but sect. 141 of the Companies Clauses Act (8 & 9 Vict. c. 16), and sect. 135 of the Lands Clauses Act (8 & 9 Vict. 0. 18), entitle the company to a verdict, if before action they tender sufficient amends. In what kind of actions. — Notice of action must be given in cases of non-feasance, where the person, having imdertaken to act in pursuance of some statute, has failed to do what he ought to have done, as well as in cases of misfeasance, where he has acted negligently or wrongfully in the execution of the Act {d). Where J., Q. B 292. IB. 1014. I. &N.136; (y) Hui/hes v. Buckland, 15 M. & W. 355 (r) Selmea v. Judge, L. R., 6 Q. B. 724 ; 40 L. J., Q. B. 287. (a) Carpue v. London and Brighton Rail. Co., 5 Q. B. 747. (A) Kent v. Great Western Rail. Co., 3 C. B. 725. (f) Palmer v. Grand Junction Rail. Co., 4 M. & W. 766. Garton v. Great Western Rail. Co., El. Bl. & El. 837, 846. (rf) Joule V. Taylor, 7 Exch. 58 ; 21 L. J., Ex. 31. Davis v. Curling, 8 Q. B. 286. Newton v. Ellis, 5 El. & Bl. 115; 3q2 820 NOTICE or ACTIOX [chap. XIV. ^ n 782 the principal oliject of tho action is an injunction to restrain an immediate injury, it is not necessary to give notice of action, even although damages are claimed by way of subsidiary relief (c). Nor is nny notice of action required, where the action is brought, not for a tort or a ijuasi tort, but for tho breach of a specific contract (./') . Where an Act of Parliament ((j) provided that no action or proceeding should be commenced against the Metropolitan Board of Works till after notice, and that " every such action and proceeding should bo brought and commenced within six months next after the accrual of tho cause of action or ground of claim or demand, and not afterwards," it was held that these words referred to some hostile claim against the board, and not to a claim of arbitration for damage to buildings caused by the works of the board {/i). Time for (jicing the notice. — By the 5 & 6 Vict. c. 97, s. 4, it is enacted that, in all cases where notice of action is required to bo given, such notice shall be given one calendar month at least before any action shall be commenced, and such notice shall be sufficient, any Act to the contrary thereof notwithstanding. The general rule is that, where time for a particular period is allowed to a person to do any act, the day from which the computation is to be made is to be reckoned exclusively ; and, whenever a certain space of time is given to a person to do some act, which space of time is included between two other acts to be done by another person, "both the days of doing those acts ought," observes Alderson, B., " to be excluded, in order to insure to him the whole of that space of time. Thus, where a month's notice of action is required to be given to a justice of the peace before an action can be commenced against him, and the justice is to have the whole of that month for tendering amends, both the day of the giving of the notice and the day of the tendering amends are to be ex- cluded from the computation of the time : for, wherever the Act of Parliament allows a party an intervening period of a month, within which to deliberate whether he will tender amends or not, 24 L. J., Q. B. 337. Wihon v. Mayor, i-c. of Halifax, L. R., 3 Ex. 1 14 ; 37 L. J., Ex. 44. JolUff'c V. Wallasey Local Board, L. R., 9 C. P. 62 ; 43 L. J., C. P. 4 1 . In Ireland it has been held that words spoken while acting in pursuance of statutes, are as much within their protection as acta done, and, conse- quently, that in an action for slander tho defendant in such a case is entitled to notice of action. Murray v. M'iSwiney, It. Rep., 9 C. L. 545. ((') Flower v. local Board of Low Ley ton, 5 Ch. D. 347 ; 46 L. J., Ch. 621. AH.- Gen. V. Hackney Local Board, L. R., 20 Eq. 626; 44 L. J., Ch. 545. (/) Wightman, J., Lavis v. Curling, 8 Q. B. 293. Fletcher v. Oreenwell, 4 Dowl. P. C. 166. Dalies v. Mayor, ^-c. of Swansea, 8 Exch. 808 ; 22 L. J., Ex. 297. {g) 25 & 26 Vict. c. 102, s. 106. (A) Belany v. Metropolitan Board of Works, L. R., 2 C. P. 632 ; 3 C. P. Ill ; 37 L. J., C. P. 59. si 1 I'. XIV. restrain action, 3lief (c). )rougbt, specific ction or a Board ion and months claim or referred claim of Ls of the s. 4, it is •ed to bo at least shall he ng. The s allowed iitation is a certain space of y another observes he whole action is [iction can the whole he giving to be ex- r the Act a month, ds or not, tfLowZeyton, I. C21. Att.- ,-d, L. R., 20 I. is V. Curling, U rem well, 4 V. Mai/or, ■S;c. 22 L. J., Ex. 8. 106. tan Hoard of 3C. P. Ill; CHAP. XIV.] now TO HK OIVKN. 821 783 unless you exclude both tlio first and the last day, you do not give him a whole month for that purpose "(/). A person wlio intends to sue a justice of the peace for an act done by liim in a matter respecting which lie had no jurisdiction, need not wait for the quashing of the conviction or order of com- mitment before giving tlie notice of action. Tlie notice of action may be given as soon as the wrongful act lias been committed, though the action itself cannot be commenced until after the con- viction or commitment has been quashed (A-). If in the case of a conviction the magistrate receives notice of action before the con- viction is quashed, he may at his peril rely upon the validity of the conviction, and abstain from tendering amends ; but, if he does so, and the conviction is quashed, the action may be com- menced against him one calendar month after service of the notice (k). Form of the notice. — The notice of action should set forth the substantial ground of complaint, and should specify the time and place of the commission of the grievance (/), and should state positively that an action will be brought {in) . If the notice con- tains a reference to a wrong statute, the wrong reference may bo rejected, as a reference to the statute requiring notice to be given is not an essential part of the notice (») ; but the court in which the action is brought, if stated at all, should bo correctly stated, particularly if several notices of action have been served (o). It is not necessary in the notice to name all the persons meant to be made parties to the action, nor to express whether it is intended to be brought against several persons jointly, or against one person only ( p) ; but every plaintiff wlio sues must give notice of action, and every defendant must receive notice. Notice on behalf of two complaining parties, one of them being dead, was held not to support an action brought by the survivor ((?). It is quite suffi- cient, if the notice affords plain and substantial irformation of the cause of action ; it is not necessary to describe in specific words precisely how the injury took place ; nor is it in all cases material to state precisely where the cause of injury arose {r). When the statute requires the name and place of abode of the solicitor of the (i) Alderson, B., Yuuiig v. lliggon, 6 M. & W. 54. [k) Jfai/loclv. Sparh', 1 El. & B1.471 ; 22 L. J., M. C. 67. (/) Vreese v. Jcrdehi, 4 Q. B. 58.5. Martins v. Vpc/ur, 3 Q. B. 662. Taglor V. y,ii/ield, 3 El. & Bl. 725 ; 23 L. J., M. C. 169. Jones v. NichoUs, 13 M. &W. 361. (»i) Manon V. liirkenhead Improvement Commissioners, 6 H. & N. 72 ; 29 L. J., Ex. 406. (n) Maegregor v. Galsworthy, 1 C. & K. 8. (o) Elstob V. ll'right, 3 C. & K. 35. (p) liax V. Jones, 5 Vr. 168. (y) rUkington v. Itileii, 3 Exch. 741. (»•) Jones V. Bird, 6 B. & Aid. 837 ; 1 D. cS: R. 503. Smith v. West Derby local Hoard, 3 C. P. D. 423; 47 L. J., C. P. 607. |r [■ (frwi II iJ ,iai|iwi| I [t -!■■ Ht2 NOTICK OF ACTION, [chap. XIV. 784 party giving the notice to be indorsed on the notice, any material error or misstatement calculated to mislead will invalidate the notice ; but, if the information given is sufRciently specific and BufHciently accurate to enable the defendant to avail himself of the privileges nnd advantages tliat the Act intended to confer upon him, it will bo sufficient ; and it is for the defendant to show that tlu) error or miRstatomont, or insufficient description in the notice, has deprived liim of the opportunity of taking advantage of the statute (s). The christian name of the solicitor need not be written out at full leii^'H (/) ; nor need his private rosidenoo be specified; for the place n\ . ere a solicitor abides for the purpose of carrying on his business is his place of abode within the meaning of the statute. " Either will do, the place of residence or the place of business" (»). Care must be taken to address the notice to the right parties, and to serve it in the proper quarter (/•). In actions against justices, the nat\iro of the cause of action, or of the complaint or grievance, should bo explicitly stated on the face of the notice, so as to show whether the plaintiff proceeds against the magistrate for an act done by him maliciously and without reasonable and probable cause, in tlie execution of his duty as a justice, with respect to some matter within liis jurisdic- tion, within the first section of the 11 & 12 Vict. c. 44, or for an act done by him in a matter over wliich ho bad no jurisdiction, or respecting which he had exceeded his jurisdiction, within the second section of that statute. If the notice fails clearly and explicitly to point out the nature of the cause of action, so as to show whether it is governed by the first or the second section of the statute, it will be a bad notice (.r). "But tlie notice," justly observes Abbott, 0. J., "ought not to be construed with great strictness, its object being merely to iuform the defendant sub- stantially of the ground of complaint, but not of the mode or manner in which the injury has been sustained" (//). The time and place of the doing the act complained of ought also to be stated in the notice. " I do not go so far," observes Lord Den- man, "as to say that a party will always be strictly bound to prove the time and place which he names in his notice ; but I think the words of the statute require that a time and place for the occurrence should be named " (s). Tender of amcndu be/ore action. — The statutes requiring notice of action to be given further provide that the action shall not be («) Oabom v. Goiigh, 3 B. & P. 554. (<) James v. Suijt, 4 B. & C. 681. (k) Jloberts v. Williamt, 2 C. M. & E. 661 ; 4 Dowl. P. C. 486. (i) Hider v. Dorrell, 1 Taunt. 384. (j) Taylor \. Ncsficld, 3 El. & Bl. 724 ; 23 L. J., M. C. 169. (y) Prickett v. Gratrex, 8 Q. B. 1020. Jacklin v. Fytehe, 14 M. & W. 387. (z) Martin* v. Upcher, 3 Q. B. 668. m9 p. XIV, ice, any validato 3ific and If of tho er upon ow that 3 notice, 3 of tho 3 written pocificd ; carrying a; of tho plaoo of !0 to tho iction, or J on tho proceeds )U8ly and in of his jurisdic- or for an iction, or ithin tho arly and so as to lection of )," justly ith great lant sub- modo or Che time Iso to be ord Don- jound to 36 ; but I place for C'HAr. XIV.] HOW TO m: fiivEx. H'2'6 786 maintainable, and that tho jury shall give a verdict for tho defendant, if there has been a tender of sufficient amends before action («). If Iho plaintiff doos not accoi)t tho tender, but itrcfcrs the chanco of what ho may gain by verdict, he has uo claim to tho amount tendered; and, if tlio verdict goes against him, lie gets nothing {/>). Py tho 11 & 12 Vict. c. 41, s. 11, it is enacted that, after notice of action has been given to a justice, and before tho action shall bo commenced, tho justice to whom such notice shall be given may tender to tho party complaining, or to his attorney or agent, such sum of money as ho may tlu/ik fit, as amends for tho injiu-y com- plained of in such notice ; and, if tho jury at tho trial shall bo of opinion that tho plaintiff is not entitled to damages beyond tho Bum so tendered, then they shall give a verdict for tjie defendant, and tho j)laintiff shall not bo at liberty to elect to be non-suited. Wliether tho preliminary matters rcquireil by statute for tho pro- tection of magistrates have been duly complied with appears to bo a question for tho decision of tho judge at tho trial, and not for determination by a jury (r). (rt) Thin is tho caHo witli tlio LiukIm ClauKOH Act (8 & 9 Vict. c. 18, r. Uft) ; tho Railway ClausoH Act (8 k 9 Vict. c. 20, 8. 139) ; County CourtR Act (9 & 10 "Vict. 0. 90, H. 138) ; I'liblic llcaltli Act (38 & 39 Vict. c. lio, h. 201) ; tho WatcrworkH ClauscN Act (10 it 11 Vict. c. 17, s. 81) ; tlic llurbouis, Docks, and riiTH Clatiscs Act (10 & 11 Viil. c. 27, 8. 91) ; tho Towns Improvement Clauses Act (10 & 11 Vict. c. 31, 8. 209) ; tho Commissioners Clauses Act (10 & 11 Vict. c. 10, s. 103); tho Markets and Fuirs Clauses Act (10 & 11 Vict. c. 14, 8. 61 ; see 38 & 39 Vict. c. 65, ss. 166— 108) ; tlie Towns rolino Clauses Act (10 & 11 Vict, c. 89, s. 72 : SCO 38 & 39 Vict, c. 65, s. 171) ; the Cemeteries Clauses Act (10 & 11 Vict. c. 0"), 8. Gl); the Contajjfious Diseases (Animals) Act, 1878 (11 & 42 Vict. c. 74, 8. ;').';) ; and the E('<'losiasti()werf \il remonstrance of Lord Coleridge in llnxUi/ V. Went Liiiuion Ituil. Co., 17 Q. B. D. 373. The judge may consider the conduct of the party previous to the action, llanut v. Vise, 5 Ex. D. 307. [k) micrens v. Metropolitan District Mail. Co., 29 Ch. D. 60 ; 54 L. J., Ch. 737. I! }■ In. 826 COSTS [chap. XV. 788 to tho successful party, as it is not the province of the court to protect speculation of this kind (/). Conh — Actions for coUisiou. — Whore tho defendant succeeds on the ground that the collision was tho result of inevitable acci- dent, it is tho general rule in the Court of Admiralty to give costs to tho defendant [m). The circumstances of each case will be considered ; and the plaintiff will be ordered to pay tlie costs, if he had no sufficient ground for bringing the action (//), So, in the Admiralty Division, where a defendant pleads several defences, but only succeeds on the ground that the collision was caused by tho negligence of the pilot whom he was compelled by law to employ, it has been the practice to give him no costs ; but, in a case since tho Judicature Acts, the Exchequer Division refused to apply that rule (o). Where both vessels are to blame, tho owners are not entitled to tho costs of any litigation arising out of the collision {p). Costs — Actions triable in the count[f courts. — By the Judicature Act, 1873, s. 07, the provisions contained in tho fifth section of tho County Courts Act, 18G7, are to apply to all actions commenced or pending in the High Court of Jujtice in which any relief is sought which can be given in a county court () J'cllas V. llreslaiiri; L. R., 6 Q. B. 438; 40 L. J., Q. B. 161. (j) Flitlcrs V. Alf'rei/, L. R., 10 C. P. '29 ; 44 L. J., C. P. 73. Sect. 39 does not apply where the action could only have been brought in the county court, as, for instance, under the Employers' Liability Act, s. G. 2{eff. v. Cifi/ of London Court, 14 Q. B. D. 818 ; 54 L. J., Q. B. 330. {ij) Taylor v. C«m, L. E., 4 C. P. 614. By Order LXV. r. 4, the costs of the action follow the event, unless by certi- ficate of tlio judge who tried the case it appears that he was of opinion that the question of costs ought to be referred to tho High Court. The High Court re- tains its power to deal with the costs. Fmnii/ V. Sam/e.", 14 Q. B. D. 6. But where the action is remitted under s. 10 of 30 > 31 Vict. c. 142, the High Court has no jurisdiction over tho costs. Moodi/ V. .S/ra-art, L. R., 6 Ex, 3o. (z) Mflriid V Mai/or, ^-c. of Kcic- castle-on '^nt; J :.'., 5 Q. B. 47; 39 L. J., Q. B. ill. {(i) Jlolborow V. Jotifs, L. R., 4 C. P. 14 ; 38 L T., C. P. 22. (A) Thompson v. Dallas, L. R. 3 Q. B. 359 ; 37 L. J., Q. B. 133. (e) 45 & 46 Vict. c. 67, s. 5. (V) Order LXV. r. 3. («) Legge v. Tucker, 1 H. & N. 500 ; 26 L. J., Ex. 71. Baylis v. Lintott, L R,, 8 0. P. 345 ; 42 L. J., C. P. 119. rs i 1 828 COSTS [chap. XV. m { I'n- ■ « . ;h' !\ 5 .i- 790 On tLo other hand, when the foundation of the action is a wrongful act^ as, for instance, a tort to the right of property, and not a breach of contract, the action is in fact founded on tort (./') . Where a vendor of goods, Avho has delivered them to a earner for carriage to the vendee, exercises his right to stop in traimtu, and requires the carrier to re-deliver the goods, but tlie carrier refuses to do so, and delivers the goods to the consignee, and the vendor brings an action against the earner, the action is founded on tort and not on contract ((/). But, whore goods are delivered to a common carrier, to be ca-'-T'iod, and are lost on the road, the action against tlie common carrier is founded on contract ; for, where an action is brought against a common carrier for breach of the common-law duty to carry safely, the action is founded on contract, and is not an action ex deUcto fo-:' negligence ; and, tlierofore, if the plaintiff docs not recover more than 201., he is not entitled to his costs (//). Where the plnlntiff in the first count of his declaration complained of an assault, and in the second count of slander, and recovered less than the statutable amount on the first count, and failed on the second, it was held that he was entitled to no costs without a cei-tiheato or judge's order (/). Actions tviahlc in counti/ court — C/ai/n vcilnccd hi/ successful counter-claim. — Where the plaintiff proves a claim, and a counter- claim of less u,mount is proved by the defendant, the plaintiff recover^ judgment for the balance only : but it seems his right to costs must be decided v/ith refr^rence to the amount of the claim proved (,/ ) . Actions trialjlc in counti/ court — Ctuini reduced hi/ the return of the goods sued for. — Where, imder the repealed Acts, an aetion was brought in a superior court for the detention of goods exceeding the vplue of 50/., and the goods were returned to, and taken back by, the defendant after action, and the plaintiff went on with the action to recover further damages and his costs, and obtained a verdict for a shilling damages, but the jury foimd that the value of the goods detained exceeded 50/., it was held that the plaintiff was entitled to judgment for his costs, as no plaint would lie in the county court for goods of the value assessed (/.), But, where an action of trover was brought for the detention of a port- manteau of the value of 25/. for a claim of Is. 6^/., and the (/) Bryant v. Htrhert, 3 C. V. D. 389; 47 L. J., C. P. 070. (o) Foil ti fix V. Midlnml Jlaif. C(., 3 Q. B.D. 23; 47 L. J., Q. B. 28. (.'/) FIrmuig v. Manchester and Hhrjlhld lluil. Co., 4 Q. B. D. 81. See, howrvor, Tattan v. Great Western Hail. Co., 2 El. & El. 844 ; 29 L. J., Q. B. 184 ; ami Foulkes V. Metropolitan Dis'ricl Rail. Co., 4CP. D. 267; 5 C. P. D. 157. (i) Smith V. Ilarntr, 3 C. B., N. S. 829. {j) Stooke V. Taijhr ; Dainesy. Brom- leif, post, p. 791. 'Ellis V. J)e Silra, 6 Q. R. D. 521. J.nndv. Campbell, 14 Q. B. D. 821. llduke v. Breur, 14 Q. B. D. 841. Ahrbecker v. Frosf, 17 Q. B. D. COO. ThoHO cases are iiiuoiisistcnt with Staples V. Youna, 2 Ex. D. 324. (k) Leader y". Rhys, 10 C. B., N. S. 369 ; 30 L. J., C. P. 345. " CHAP. XV.] UNDER THE COUNTY COURT ACTS. 8-29 791 portmanteau was delivered up to the plaintifl", and received back by him in court, and the jury then gave a verdict for 40.s'. damages, and the plaintiff failed to take a verdict for the value of the portmanteau, it was held that an order for costs could not be made, as a plaint could have been entered in the county court, and no sufficient reason was shown fur bringing the action in the superior court (/) . Actions friable in coiinti/ court — JUoiici/ paid into court. — When money has been paid into court, not exceeding '20/. or 10/., as the case may be, and the plaintiif aecopts it in satisfaction of tho cause of action, ho cannot got any costs, as he lias not recovered more than the amoimt mentioned in the Act {m) ; but, if the amount recovered in the action, together with the amount paid into court, exceeds the amount mentioned, the plaintiff Avill bo entitled to his costs. Actions triable in county court — Causes referred. — What the legislature meant by the word " ' recover ' was what the plaintiff is to get and put into liis pocket " (/() by moans of the action ; and, therefore, if the action is referred, although by consent, and tho arbitrator awards a sum less than 20/. or 10/., as the case may be, the plaintiff will be deprived of his costs accordingly (o). If the cause is refen-ed compulsorily, the same rule holds, both with regard to the costs of the cause and also the costs of the reference or award, which in such a case form part and parcel of the costs of the cause {p). There is no distinction between causes referred before, and causes referred after, verdict (ry). When the cause has Deen referred therefore, the plaintiff will not obtain his costs, if he does not recover through the instrumentality of the award and the verdict a sum exceeding 10/. or 20/., as the case may be (/■). Where, however, an action is referred by consent, and the costs of the reference are in the discretion of the arbitrator, the plaintiff will be entitled to those costs if the arbitrator so awards, although he recovers less than the statutable amount, and so cannot have the costs of the cause (s). If the reference is of the cause and all matters in difference, and the submission states that the costs are to follow " the event of the reference," and the arbitrator finds, on N. S. (/) Diiiindiilf V. London and Brighton Hail. Co., 11 W. R., Q. B. 72i>. irit/rns V. Cook, 6 C. B., N. S. 784 ; '19 L. J., C P 312 («/) lloiilding V. Ti/ln; 3 B. & S. 472 ; 32 L. J., Q. B. 8.). J'air v. lAUicrap, 1 H. & C. 015 ; 32 L. J., Ex. If 1. Aa to set-otf, S(!C Stuohc v. Tuijhr, 8 Q. B. D. r)()9. lUiincH V. Jiromlc'i, Ex. D. 691. Keule v. CUrk, 4 Ex. U. 288. {n\ Gouens v. Moore, ?> 11. & N. 540. (c) Coarll V. Amman Coll. To.. 6 B. & S. 333; 34 L. J., Q. B. 101. I'lrgmsun V. Jhiiison, 8 Q. B. D. 470. (;;) Jloore v. U'aUon, L. R., 2 C. P. 314 ; 30 L. J., C. P. 122. Ihhcrhon v. tiUrnc, 13 C. B., N. S. 248 : 31 L. J., C. P. 302. But siK) Galalti v. Ifabjkld, 4 Ex. D. 249, 251. (y) Coicr'l V. Amman Coll. Co., supra. {r) .Smil/i V. Ju/yc, 2 II. i: C. 059 ; 33 L. J., Ex. 9. (.•,) Forshaw v. De H'elli; L. R., fi Ex. 300; 40 L. J., Ex. 153. w . "ISkV,, VWl/.!iHf1»B. k ; 830 COSTS [chap. XV. 792 a balance of accounts, less than the statutable amount due to the plaintifF, the plaintiff may nevertheless obtain his costs if the arbitrator so decides; for he cannot be said to "recover" such amount within the meaning of the County Courts Act (/). Actions triable in county court. — The rerfifieate that it appeared to the judge that there Avas sufficient reason for bringing the action in tlie superior court is very much a matter of discretion with the judge. There is no rule to guide him ; but he must form his own opinion from the materials before him at the trial ; and the court will not review his decision where the question is one of damages only (»). "Where, however, an action is bona Jidc brought to try a right, and the right is of sufficient importance to make the action one proper to bo brought in a superior court, the judge ought to certify ; and, if he does not, his decision may be reviewed by the court and reversed if it appears clearly to bo Avrong (.r). A judge may, under this statute, it would seem, certify for costs at any time before taxation (//) ; but the under-sheriff, or presiding officer, on a writ of trial, who has to certify on the Avi-it of inquiry, must do so probably before it is returned {z). Although the plain- tiff may be deprived of costs by the Count}' Courts Act, he is, nevertheless, entitled to levy poundage fees, and expenses of exe- cution, in addition to the sum recovered, costs of execution not being costs of the action («) . Cods — Ifarricd iromen. — By the Married Women's Property Act, 1882, any damages or costs recovered by a married woman shall be her separate property, and any damages or costs recovered against her shall be payable out of her separate property, and not otherwise {b). Costs — In patent cases. — The 31st section of the Patents, Designs, and Trade Marks Act, 1883 (c), empowers the court or a judge, before whom an action is tried, to certify that the validity of the patent came in question ; and if the court or judge so certi- fies, then ill any ^^ubsequent action for inixingement the plaintiff in such action, on obtaining a final order ^i' ''"djrment, shall have his full costs, charge3; and expenses, r.s 'vetween ioJi iter and client. {I) Stevens V. C/ifi/ ,in>i. L. E., C Fx. '2Vi\ 40 L. J., Ex. m. {«) JId'/i V Lewis, 7 H. & N. ...,i ; 31 L. J., Ex. 20. niiiis'lcl' V London. llriglUoh iV- li"'t'- Co., U W. li., Q. B. 729. (i) in ide V. SJieppard, L E., 7 Ex. 71 ; 41 L. J.. ~y.x. 26 fitiachetj v. Lord 0-'t,orne, L. H , 10 0. P. 92 ; 44 L. J., C. P. fi. [il) Martiti, B,, Masonv. T,ic^ ■ 4 II. k N. 53S. hennett v. Thomp ■ , ', EI. 6i Bl. GS3; 25 L. J., Q. B. 37." {.': r. , ,n V. ■„(>., L R.,4 Ex. 140; 38 L .! . 1 ; v . 9( (rt) Ai.i'.gi >'. Jesiop, L. R., 2 C, P. 12; 30 L. J., O. P. 03. {b\ 45 & A( V i ',. c. 75, B. 1_, tiub-s (2). Wliore i\v ]'ii>,'..:iad aii'3 wife are suod in respect, oi (jjbts coiitr- • ;1 or wrongs committed iiy the wife beiorc marriage, nud the husbaiid is fmnd iioi to \k) liable, lio will have tlio costs of li'j defcDco, and if he is liabla there will be a joint judgment a^^iinst tL..- husband nud wife. Sec sect. 16. M 46 & 47 Viet. c. 67. 'm CHAP. XV.] AGAINST PUBLIC OFriCEKS. H61 793 unless the court or judge shall certify that ho ought not to have such full costs. Costs in the superior courts in actions ayainxt justices. — By the 11 & 12 Vict. c. 44, s. 14, it is enacted that, if the plaintift", iu an action against a justice of the peace for anytliing done by him in the execution of his office, recovers a verdict, or tlie defendant allows judgment to pass against him by default, the plaintiff shall bo entitled to costs as if the Act liad not been passed ; or if, in such case, it bo stated in tlio declaration, or in the summons and particulars in a county court action, that the act complained of was done maliciously and without reasonable or probable cause, the plaintiff, if he recover a verdict for any damages, or if the defendant allow judgment to pass iigainst him by default, shall be entitled to his full costs of suit, to bo taxed as between attorney and client {d) ; and that in every action against a justice of the peace for anything done by him in the execution of his office, the defendant, if he obtain judgment upon verdict, or otherwise, shall in all cases be entitled i o his full costs in that behalf, to be taxed as between attorney and client. The 24 Geo. 2, c. 44, s. 0, enacts that the constable or officer executing a justice's wari'ant sliall, in a certain event, be sued only in conjunction with the justice or justices who issued tlio warrant, and that the jury on proof of the warrant shall find for the constable (c) ; and as regards the costs it is enacted that, if the verdict be given against the justice, the plaintiff shall recover his costs, to be taxed so as to include the costs the plaintiff is liable to pay to the defendant for whom such verdict shall be found. In actions at/ainst constdlilcs and officers, and j)artics acting or intending to act in the execution of statutori/ jmccrs, such as thoso contained in the 1 & 2 Will. 4, c. 41, the plaintiff, though he obtains a verdict, cannot (sect. 19) recover any costs from the de- fendant, unless the judge before whom the trial takes jilace certifies his approbation of the action and of the verdict ; and, generally, when p.n action is brought against a constable or a police-officer, or against private individuals, for anything done m pursuance of an Act of I'arlianient, or with the bond fide intention of executing the provisions of some particular statute, and a verdict passes for the defendant, or the plaintiff becomea nonsuit or discontinues the action after issue joined, or if, upon demurier or otherwise, judg- ment is given against the plaintiff, the defendant is entitled to recover his fuU costs as between solicitor and client, and has the like remedy for the same as any defendant has in ordinary cases. i Hi hi >V ■• i'. '. [d] See the exception in sect. 13, anU; {e) Ante, p. 710. p. 080. %: 1 li m2 COSTS [CIIAP. XV. "»< "(1- n f ' I! I 794 Til act ions /or th iin/s done in supposed pursuance of the Act for the protection of properti/ from malicious injuries. — By the 71st section of the 24 & 25 Vict. c. 07, it is enacted that, though a verdict shall be given for the plaintiff in an action against any person for anything done in pursuance of the Act, such plaintiff shall not have costs against the defendant, unless the judge before Avhom the trial shall be shall certify his approbation of the action. If, therefore, the judge does not at the trial give a certificate of approbation in conformity with the statute, the defendant is entitled to a snggestion of the fact on the record, in order to deprive the plaintiff of costs which ho would otherwise recover (./'). Repeal of divers statutes cnabliny plaintijTs in certain actions to recover double costs. — liy the 5 & 6 Vict. c. 97, s. 1, it is enacted, that so much of any clause or enactment in any local and personal Act, or in any Act of a local or personal nature, whereby it is enacted tliat either double or treble costs, or any other than the usual costs between party and party, may bo recovered, shall be repealed, and in lieu thereof the usual costs between party and party may bo recovered and no more ; and (sect. 2) that so miich of ony enactment in any public Act, not local or personal, whereby it is enacted that either double or treble costs, or any other than the usual costs between party and party, may be recovered, shall be repealed, and instead of such costs the party sliall receive such full and reasonable indemnity as to all costs, charges, and expenses incurred in and about any action or other legal proceeding as shall be taxed by the proper officer in that behalf. In compensation cases (y). — A]^ offer of compensation by a railway company to a pcl'Huli wllimo land has been injuriously nff('(^|(M| by the i'on»truclion of a railway, nmst be made at least leii (lilj'H licl'oro the holding of the inquisition of damages, in order to throw \lpon tho party seeking compensation, and not obtaining more than the sum offered, the burthen of paying liis own costs (//). There is nothing, however, to prevent the company from subse- quently making a larger offer, provided they make it in time ; and, if the aggregate of the sums recovered by the claimant docs not (f) SWiiooil V Pitl, h 11". & N. 801 ; 28 L, J., Ex. 212 ; decided under the 41st NOotioD of the ivjiealed Act, 7 «& H Geti. 4, c. 30. (9) Under the 8 Vict. c. 18, s. 52, the costM of uny ineiuiry, and under the 32 & 33 Vict. c. 18, s. 1, the costs of any iirbitratiou as to compensation under the Lands Clauses Act, may be taxed by a uiuster ; but the Act oidy refers to arbi- trations pure and simple under the Lands 1'U\180S A(^t, and not to cases where other matters are iuvolved. BuitUon v. MclropoIUan Hoard of Works, L. R., 5 Q. B. 333; 39 I,. .T.,'Q. B. 165. Whero tlie costs are settled by a master, the court has no jurisdiction to revii'W hi.s taxation. Owen v. Loudon ^' Xorth Western Hail. Co., L. R.. 3 Q. B. h{ ; 37 L. J., Q. B. 35. Saiidbach Pharitij Tnis- tics V. Xorth Staffordshire Jtail. (\>., 3 Q. B. I). 1; 47 L. J., Q. 11. 10. (/() Metropolitan Hail. Co. v. Tiirnham, 14 C. B., N. S. 212; 32 L. J. 249. M. C. TTPT"^ i«ii|ii»i>niniin;,inpnip^,i.t^jni, ii.iJMWi"i>ii^f^^ CHAP. XV.] IN COMI'KNHATION CASKS. 83:{ 796 exceed the aggregate of the sums so ofTered by the company, ho will not bo entitled to liis costs (/). AVlioro the company give the claimant notice of tlioir intention to issue tlioir warrant for sum- moning a jury, and make an offer of the sum they are willing to give, and tlio claimant tlien gives notice of his desire to have the compensation settled by arbitration, tlio company may make a fresh offer; and such offer is made in time, if made at the time tliat notice is given of the appointment of the arbitrator (,/). ]3ut an offer made after both the arbitrators have been appointed is too late(/.). Tlie offer must be unconditional. An offer of one sum for compensation and costs is, tlicreforo, bad (/). In tlio case of a landowner, whoso land has been severed, demanding a com- munication to be made, and the company profoiTing to take to the land as being of less value than the oxpenso of making the communication, the Act makes no provision as to costs («/). A person whoso lands are injuriously aff(>ctcd, and who recovers by the verdict of a jury under sect. * l <(iual Co., L. R., 7 Q. B. 770; 41 L. J., (J. B. 31fi. (/,) (ildl/ V. A'oilli r.iistillt Itcl'tl. Co., 1 Q. B. I). GOG; 45 L. J., Q. B. 818. (/) BaUx V. MHropoiitan Hoard of Works, L. 11., 1 Q, B. 337; 35 L. J., Q. B. ini. (m'^ cMi V. .Mid-ll'fdts llnU. Co., L, U., I Q. B. ;M2; 35 L. J., Q. B. 117. (ii) South Eddvrn RuiL Co. v. llichard- son, 15 G. B. 810; 21 L. J., C. 1'. 122. ((/) Cassctlv. (Ireat Iff item lin'd. Co., 11 Q. B. D. 315 ; 52 L. J., Q. B. 346. ! J L. II., 5 05. Whcro iiistpr, tho ii'W his ,\- Xorth .B. 5» ; 37 nritii Trii.i- ail. Co., 3 10. . Turn ham, J., M. C. ;*j A. 3n nfT V': '' 1 1 ' ' « r' [ » |: ' • I 1 ' 'i ) 1 V !.'■ i? i ;,u,wn|i» ,w, iif I ygi^ii «iMf «*ii^i|||WJl.ii'. v,i|f ,imJH||Uir<^n*f7«r' mjiMSiimmfiiii^iw^w «r^wwWl^i^i»i!^l!Wipw»pwr IF Iff GENERAL INDEX. Note. — T/io paging refers to the black type [288], which is that of the English Edition. 3h 2 imr\ I' if] i.ftl i! i:f'^!ff ffli iiii il 1 f f rii ( i ' , iiw j l^ ■HJ M H|j ^ ^ I 'j-!i f INDEX. NOTE. -The pnging refers to Uie^ l>lnck type [288], which is that of the English Edition. ABANDONMENT, of ^)o88e.sHi(m of land, 202 oxtingui>limont of Horvitiidos by, .'),J1 right of way, ;J52 right to water, .'1.52 right to liglit, .'$.).'} of land compTilMorily tiikcii, 7J!i AJJATJOMENT of nuisaneoH, 48, 7], 3!)G upon coiimiouH, y!>7 arising from tho oxoreiso in excoss of liniitod riglits, 397 AimoAD, torts coiumittod, 1 ',].') custody of children born, (iO.'j ABSCONDING PERSONS, arrest of, 158 ABUSE, when actionable, 16'J ABUSE OF CIVIL PROCESS, 29 ABUSE OF LICENCE, 397 ACCESS, to Louse over neighbour's land, 300 to highway, 441, 614 of parent to child, 599 after adultery, 602 ACCESS OP LIGHT, 298, 331, 379. Sec Lionr. ACCESSION, title to goods and chattels by, 447 ACCIDENT, injuries occasioned by, 17, 18, 22 assault by, 140 inevitable, in collisions, 632 ACCORD AND SATISFACTION, discharge by, 52 ACKNOWLEDGMENT barring the operation of the Statutes of Limitation, 267 »i ll (' • '■t' ■r J IMAGE EVALUATION TEST TARGET (MT--3) 1.0 I.I ■as 120- K2.5 ■i^ 122 12.2 S[ U£ 1 20 Uli 1.25 lllll 1.4 1.6 inr^ '/ Photographic Sdmoes Carporalion 33 mST MAIN STRUT WiBSTn,N.Y. 145tn (71«)t73-4S03 li-.^' rrr 838 INDEX. mt.. t I I . ACQUIESCENCE, 311, 312, 385 in intoiTuption, 334 precl''ding relief by injunction, 92, 393 ignorant, 394 ACQUISITION, of title to land, 261, 269 of servitudes, 298 by prescription, 319 by custom, 340 ACT OF BANKRUPTCY, transfers constituting an, 253 to trustees for creditors, 253 of all a debtor's x)roperty, 253 fraudulent preferences, 253, 256 Si ml Is 1 ,-. I* I'tv ACT OF PLAINTIFF, justification of tort by, 51 ACTION, malicious and unfounded, 29 in the name of a pauper, 29 remedy by, 72, 385 suspension of, 76 joinder of plaintiflFs in, 76 parties jointly interested, 76 husband and wife, 77 damages recoverable, 78. See Damaues. specific delivery, 88 injunction, SO. See Injunction. for damage from riot, 1 27 for injuries to person, 163 limitation of, 262. See Limitation. for trespass, 385 for nuisaace, 388 for waste, 421 transfer of title by recovery of judgment, 481 for conversion, 509 for injuries to patent right, 572 for injuries to trade-mark, 580 under Lord Campbell's Act, 604 for a falso return, 650 against justices, 679 against Local Government officers, 727 for fraud, 744 notice of. See Notice of Action. ACTOB, disturbance of performance, 7 procuring breach of contract by, 9 ADJACENT OWNER, 305, 331, 758 ADJUDICATION in bankruptcy, annulment of, 246 ■"^ INDEX. ADMINISTRATOR, title of, to goods of tho intestate, 481 rights of, 57 continuing injuries, 59 liabilities of, 60 ADULTERY, right of action for, 591 tho damages, 593 application of, 594 ADVOCATES, statements by, when privileged, 182 AFFIDAVIT, privileged, 198 in bills of sale, 465 AFFRAY, 145 AFTER-ACQUIRED PROPERTY, transfer of, by bankruptcy, 245 by bill of sale, 459 AGE OF DISCRETION, 595 AGENT. Sec Princii-al. liability of, for his own acts, 98, 746 in actions for defamation, 218 for malicious prosecution, 231 transfer of goods >ty, 473 sales, 474 pledges, 474 documents of title, 476 intrusting, 476 application of the Act, 478 revocation of authority, 479 reputed ownership of goods in possession of, 495 restraining, by injunction, 515 conversion of goods by, 518 fraud by, 748 AGRICULTURAL HOLDINGS ACT, 1883.. 528, 532 AIR. See Light. right to, 298, 306, 353 ALIEN, under Lord Campbell's Act, 606 ALLOTMENTS, 345 AMBASSADORS, torts committed by, 1 36 AMENDS, tender of, 401, 784 ANCHORAGE DUES, 437 8;JD ■ im {«■ .'I ■If! Mr 840 INDEX. 4 t li ! Hi i ( II Ml ANCIENT LIGHTS. &ec Lights. ANIMALS, DOMESTIC. Sec Cattle. liability of the owner for trespasses Ly, 48, 128 tresimsses from defect of fences, 12'J trespasses by dogs. 48, l!51. Sec Doas. damage feasant. Sea Damage Feasant. sale of impoimded, 401. injuries to, 508 ANIMALS FER.^ NA TURA<:, damage done by, l;J2 rights of property iii, G, 541. game, 541 fish, 542 ANIMALS. FEROCIOUS, liability of keepers of, 1 ^2 the scienter, 134 ANNULMENT of adjudication in bankruptcy, 24' APOLOGY in actions for defamation, 213 and payment into court, 213 in mitigation of damages, 210 APPARENT EASEMENTS, 301 APPENDANT. Sec Commox. APPRENTICE, con-ection of, 145 APPURTENANT. See Commox. ARBITRATOR, 652 one party dying before award, 59 AREA, unfenced, 621, 622 ARMS, right of property in grants of, 535 ARREST, malicious, 31 what constitutes, 147 arrest of the wrong person, 151 justification of, 151 in execution of warrant of justices, 151 without warrant, 151 reasonable and probable cause, 152 for a misdemeanor, 153 to preserve thepeace, 154 what is a breach of the peace, 155 under the Larceny Act, 156 for malicious injuries to property, 156 of persons committing indictable offences in the night time, 158 1^' IN'DKX. 841 B night ARREST — continued. justification oi—continueil. of persons disttirbinf,^ divino sorvico, 158 iSnlj^^'r"'"^ '"^"'^ ^"""-"'"^ -t« of ruUic of fugitives, 158 under the Merchant Shipping Act 158 by soivants of railway companies, ' 1 1 8, 1 1 9 158 by order of a judge, 159 , 1 1 J, lo8 malicious arrest, IGO under Ikukruptcy Act, 1 883 . . 1 Co ol recruits and deserters, 1 ()2 of dangerous lunatics, 1G2 of a principal by his bail, 10-} remedy for, 1 G\i damages recoverable, 103 too remote, lC-1 mitigation of, 1G5 breaking in to make, 383 in execution of process, 700 of the wrong person, 701 of the right person under a wrong name 701 nicumbihty of wrongful, 702 of jn-ivileged person, 702 payment of the debt, 703 certificate of payment, 703 escape, 704 under void or irregular process, 705 ART, criticism of works of, 202 ARTICLES OF THE PEACE, malicious exhibition of, 232 ARTIFICIAL STREAM, 272. 328. AV Watercourse. ASSAULT, 4 continuing injury from, 56, 80 by servants of corporation, 108, 119 by husband on wife, 124 what constitutes, 138 battery, 139 maiming and wounding, 139 unintentional, 140 by consent, 140 justification of, 47, 140 self-defence, 47, 86, 140 defence of the possession of property, 48, 141 spring guns and man-traps, 143 defence of third persons, 144 moderate correction by jmrents, &c., 48, 145 to preserve the peace, 145 discharge of, 145 hearing and dismissal by justices, 145 remedy for, 163 damages recoverable, 1C3 too remote, 164 mitigation of, 83, 165 I 1 :/ i 1 ^ ii HI ill J ^1, >' 1 " y «i 842 INDEX. II f If ' f ■: ^ lit Iff?: ASSESSMENT OF VALUE, of goods detained, 89 where all or part has been returned after action, 89 ASSIGNMENT, of copyright, 548 of patent, 568 of trade marks, 579 for benefit of creditors, 40*2 ATTORNEY. See Solicitou. AUCTIONEER, has special property in goods, 520 disturbance of market rights by, 545 BAIL, ari'est of the principal by hif, 163 BAILEES, transfer of goods in the hands of, 473 reputed ownership of goods in the possession of, 494 rights of innocent, 502 involuntary, 505 conversion by, what is, 505 rights of, in goods bailed, 520 BAn.IFF, extortion by, 99 responsibility of the sheriff for the acts of, 709 execution by special, 711 responsibility of the execution creditor, 712 of the County Court. See County Court Officers. BAILOR, 506 rights of, against third persons, 521 constructive possession of, 522 BALLOON, 128 BANK NOTE, conversion of, 512, 536 BANKRUPT, trading without knowledge of trustee, 245 BANKRUPTCY, falsely signing certificate of, 33 discharge by, 64 of the person injured, 64 transfer of the bankrupt's wife's choses in action, 65 of the wrong-doer, 66 of infant, 122 of married woman, 123 malicious proceedings in, 232 transfer of rights of property by, 239 onerous property, 239 leaseholds, 239 dealings with the bankrupt without notice, 242 after-acquired property, 245 annulment of adjudication, 246 INDEX. 843 89 action, 65 BANKEUPTCY-co«//«„eY/. voidable truiisfora, 21 G fraudulent transfi^rs, 217 absence of valuation, 248 inaderiuato in-icp, 218 transfer of possession. 249 voluntary transfer, 249 void against creditors, 249 avoidance by subsequent purchasers, 2oO transtors void against trustees in, 2o2 transfers constituting an act of, 2.'i3 transfers to trustees for creditors 253 transfers of all a debtor's property, 253 fraudulent preferences, 253, 25G of purchases of chattel, 455 of an execution debtor, 482, 699 reputed ownership, 483 to what applicable, 484 possession of the bankrupt, 484 commencement of the bankruptcy, 480 the reputation, 487 things on(!e owned by the bankrupt, 488 things sold by the bankrupt, 490 registered bill of sale, 492 things never owned by the bankrupt, 492 possession by manufacturers, workmen and depositaries, 494 possession by factors, 495 possession by trustees, 496 possession by a husband of the wife's property, injunction to prevent third person from dealing with fraudu- lently assigned property, 515 of a partner, 526 ^yrits of execution, 686 liability of messenger of Comt, 722 BANKRUPTCY ACT, 1883. .239, 252, 482 et sea. arrest under, 160 BANKS OF STREAMS. See Riparian Owner. negligent construction of, 45 title to, 439, 443 BARE LICENSEE, injuries to, 315 BARRISTERS, statements by, when privileged, 182 defamation of, 174 opinion of, no defence iu malicious prosecution, 227 BATTERY. -See Assault. BEGGARS, arrest of, 157 BELLS, nuisance from, 368 right to ring church, 435, 437 3 l2 11 li m if m 1 844 INDEX. :hr* '* I s < 1 !i'. f^ ■ ' ; ij ^ ' i • ' ■ r. , 'f ^•1 -•"?' '( 1 1 i V' ':! .;» 1' 1^! 4 '«i ,1 ■«i ! BIGAMY, 33 an actionable wrong, 737 BILL OF EXCHANGE, damages for the conversion of, 512 riglit of property in, 536 forgery of, 538 what is a holder of, 539 what is a party to, 540 when negotiated, 540 rights and powers of holder, 541 BILL OF LADING, transfer by, 471 BILL OF SALE, when an act of bankruptcy, 254 transfer by, 450 construction of, 456 after-acquired property, 450 registration of, 400 what is a bill of sale, 401 what are personal chattels, 403 the inventory, 403 the attestation, 404 mode of registration, 404 the affidavit, 405 description of the grantor and witnesses, 405 renewal of, 407 rectification of, 468 evasion of, 408 priority of, 408 non-registration, effect of, 469 possession of the grantor, 469 ajiparent possession, 409 seizm-e, 470 reputed ownership, 492 fixtures and trade machinery under, 530 crops under, 459, 532 BILLS AND NOTES, conversion of, 512 BIRDS, right to wild, 541 BISHOP, neglecting his office, 14 defamatory communications to, 190 restrained from committing waste, 422 mandamus to, 640 BOAED OF TRADE, granting licence to use a patent, 569 BONA FIDE COMMUNICATIONS, privilege of, 184 I Go INDEX. BOOKS, cojjyright in, 517 transfer of, 5 IS infriiifroniont of, 51!) liniitntion of actions, ")ol plot of novel, ').)1 IJOUNDAltY FENCES, title to, 443 (litt'lios nml hodgos, ■{{,') trees and bushes in, 445 liREACII OF TEAOE, 155 151?EWERS, right to recover casks, 523 13RTCK KILN, claim of occupier to dig clay, '.VIO nuisance from, 3(57 injunction to stop, 302 BRIDGES, injuring ferry by building, 54 I surveyors of county, lia])ilities of, 731 evidence of dedication of county, (){)7 BUILDER. .See CoxTUACToit. responsible for negligence, 105 BUILDING. See House. BULLS, liability of the keepers of ferocious, 133 the seienter, 135 BUSHES, title to, in boundary fences, 445 840 CABDRIVER, 102 CAIRNS' ACT, 395 CAMPBELL'S ACT, G04 CANALS, grant of right of passage on, 290 negligent management of, 19, 34, 37, 315, 626 user of water of, 330 rights in, 346 injunction to prevent fouling, 392 excavations under, 430 management of bridges over, 626 title to the banks of, 443 CARICATURE, liabilities of possessor of, 210 CARRIAGE, breaking down through maker's negligence, 20 injury to person entering wrongfully, 24 S ' J '1', 1 ( J 84n INDEX. It CAERI AGE— rcH fin uid. nogligcnt nmnnp'iuont of, 2fi, 100 liability of the ownor, 101 liability of tho borrower, 102 CAEEIEE, 13, 16 oxcessivo clmrgo by, 32 CATTLE, liability of owners for trespasses by, 103, 128 trespasses from defect of fences, 129, 297, 316 injuries by ferocious, 132 tho scienter, 134 injured on level crossing, 11, 318 nuisance from noise of, 36 right to water, 292 by custom, 3 10 nuisance from elauglitering, 365 diseased, straying, 130 dajnaye feasant, 398. See Damage Feasant. falling down shafts, 429 restoration of stolen, 451 injured by defective state of market, 546 injured by dogs, 131 CATTLE-GATE, 287 CELLAR, injury to, 379 CELLAR FLAR, injuries from, 25, 43, 619 projecting, 612, 613 CERTIFICATE, of dismissal of summons for assault, 146 CERTIFICATE OF CHARACTER, altering, 39 CEIiriORARI, 765 CESTUI QUE TRUST, ^rc- Tkustee. CHAMPERTY, 29 CHANCEL. title to, 434 CHANDELIER, negligently hung, 20 CHAPEL, right to a private, 435 CHARACTER, of servants privileged, 193, 194 evidence of bad, in cases of malicious prosecution, 225, 230 in cases of defamation, 215 CHARGE SHEET, signing, 150 CHATTEL. See Goods. m-^ INDEX. 847 25, 230 CHEQUE, gift of, '141) right of property in, 53(1 CHILDEEN, right to chastise, 48, 14.5 aecidcnts to, 25, 13 on railways, 2(>, 025 property of, in constructivo possowsion of parent, 522 personal injiirios to, 583 enticing away, 584 custody of infant, 505 right of the fatlier, 5!)5 control of the court, 597 rights of tho niothor, 598 riglit of access, 599 after judicial separation or dissolution of niarriago, 600 of Ikiti.'-h suhjocts l)(jrn abroad, G03 of foreigners in this country, 003 general p(»w('r of court to appoint guardian, 004 action under Lord Camiibeirs Act for beuolit of un- born, GOG CHIMNEYS, 357, 374, 385 access of air to, 298 licence to use, 312, nuisance from, 376. See Smoke. CHURCH, title to, 434 CHURCHWAEDENS, 48, 157, 435, 436, 543, C45, 646 CHUECH-YABD, title to, 434, 644 CISTERN, leaking, 369 CLAY, claim of, by prescription, 320 by custom, 343 CLERGYMEN, refusal to administer sacrament, 14 celebrating divine service, 157 defamation of, 1 74 defamation by, 177 statements by, when privileged, 1 80 statements respecting, when privileged, 1 90 reviews and criticisms of their sermons, when privileged, 202 mandamus to, to bury a pauper, €43 to institute, 046 CLERK, wrongfully extorting fees, 98 mandamus to admit, 646 CLERK OF THE PEACE, communications by, privileged, 188 CLERK OF THE WORKS, liability of, 117 m^ TT 8tM 'J INDKX. n .,., V ! 14 CL0TTIK8, rifjht to dry, on TicijiflpjOMr'H land, 202 titl(( t(», by liiriiij; aiul sorvico, o 13 CLun, COAL, damiif^os for exclusion from, 17(> » liconco to (Wn, 200, 127 rifj^litH of coityhol.lor to, .'Ml (laniagos for jjotting, ^87. i;x. H4{) COMPANY, liability of. 117 fidcifrii coiinimiics, 12! for (Icfainiitioii, 1 '_'(), 'J IS for malicious proHocutiou, 12'), 2ill oinittiiif^ to r('(;ist(r, 121 maliciouMly ])ics('ii(iii^: iictitioii to wind iq), 2;}3 falMO rciu'osfiitatioiis as to tli(< credit of, 7;J!) l»y (liroctorH and oil ccrs, 7.'i!) deceit i'lil i)rosi)ectii«CH and rejiorts, 7.'J'J iion-linliility of the coiiipany for, 717 notice of action, 7H1 (JOMrENSATKlN for iniprovcmonts on farm. .'332 COIMPETITION, ill trade, fair, not actionable, 8 COMrULSOPtY I'lLUTAtiJO, in Ireland, 27 in cases of colli.sion, 0.12 COMPULSORY PT'IlCIIAbiv AVr Statutory Compensatiox. CONCEALEJ) EPAUI), in ac(|ui.sition of titio by occupation, 261) CONFLICT OF L'lOHTS, jjenernlly, 17 negligence, 20 malice, 27 CONSEQUENTLVL DA^kLVGE, 10, 11, -If. CONSPIRACY, (i, 7, 8 CONSTABLES, liability of, 1 20 duties of, 71(5 exemption from liability for acts done in obedience to a warrant, 71() exceeding antliority, 71!) statutory protection of, 711) notice of action, 778 costs, 793 arr(>st bj', 1 5 1 in execution of Avarrant, 151 without warrant, 1.31 reasonable and probable cause, 152. /iSfe Arrest. CONSTRUCTIVE NOTICE of easements, 301, 302 CONSTRUCTIVE POSSESSION of goods and chattels, 522 CONTEMPT, commitment for, by judges of the superior courts, 159, 653 by judges of inferior courts of record, 655 under Bankruptcy Act, 1883. . 160 a nrrr '^f^fP II" 8o0 INDEX. I. I Ill I*' m II-; ^■ CONTINUING INJURIES, \vhat are, 32 recovery of judgment in, 56 not discharged by doiith, 59 kinds of, trespass, 361, 406 nuisance, 36-i damages for, 390 CONTINUOUS EASEMENTS, 308, 355 CONTRACT, distinction between tort and broach of, 1, 789 •with bankrupt without notice, 242 procurement of broach of, 9 torts founded on, 15, 16 of sale, 454, 455 as to religious education of children, invalid, 595 CONTRACTOR, negligence of, cmjiloyer not liable for, 103 in tho caso of trustees and commissioners of public ■works, 720 liability of, 730 notice of action to, 779 CONTRIBUTION, none between joint tort-feasors, 96 CONTRIBUTORY NEGLIGENCE. See Negligence. CONVENTIONAL SERVITUDES. See Servitudes. CONVERSION, of goods and chattels, 499 wrongful destruction, 501 disposal of, by purchasers ivithout title, 502 by innocent bri"u<|ii»iy( 806 INDMX. h'l u '"'■^ DEFAMATION— «>«//« (/^f/. comimmications absoliitoly jirivilogod, IHl proeoodings in ('(nirts of juHticc, 181 stiiteiuents l»y udvocatoa iu tho conduct of a cause, 1 82 by witness, 4, 182 by party in person, 183 by judii^cs and magistrates, 183 coniniiinications priv)lege(l when not made maliciously, 184 extent of tho privilege, 1 8(i privileged charges of felony, 187 petitions to tho (iueon, Parliament, or ofRcors of state, r(^specting tho conduct of magistrates and olficors, 187 statements by public officers in discharge of a public duty, 188 communicationsfrom clergymen to their parishioners, 189 statements respecting elorgj'men to tho bishop, 190 conmmnicationsbetween relatives respectinga person proposing marriage, 190 communications between friends to prevent an in- jury, 191 communications by persons having a pecuniary in- terest in tho matter of tlio communication, 192 disclosures made bond fide in tho course of an in- vestigation set on foot by the plaintiff, 193 communications resiiecting the characters of servants, 193 between subscribers to charities, 194 comments in excess of the privilege, 196 reckless and inconsiderate comnumications, 197 communications addressed by mistake to the wrong person, 186, 197 reports of trials, 197 ex jiarfc statements and preliminary proceed- ings, 198 reports of proceedings in Parliament, 199 reports of proceedings at public meetings, vestry meetings, &c., 200 revieAVS and criticisms, 201 of sermons and clergymen, 202 of the public character of public men, 203 of matters of public and national importance, 203 by one tradesman of the goods of another, 204 malice in fact, 205 interpretation and application of the words used, 206 evidence of surrounding circumstances, 207 proof of subsequent libels, 208 the judge's direction to the jury, 208 application of the libel to the plaintiff, 209 what is a publication, 209 publication in newspapers, 211 singing libellous songs, 212 justification, 212 truth of the charge, 212 discharge, 213 payment of money into court, 213 INDEX. 857 DEFAMATION— roH/m»rf/. romodios, 214 remedy by nction, 214 not triable in county court, 788 (lamngGs roeovorable, 214 damnf,'CH tix) remote, 40 mitigntion of dnmnges, 215 libels by the- plaintiff on the defendant, 216 offers of ai)ology, 210 inadequacy of damages, 217 injunction, 217 who responsible for, 217 subsequent pxiblishers, 217 joint libellers, 218 principal and agent, 218 corporations, 218 evidence of malice, 220 slander of title, 258 DEFENCE, of person or property, 47 assault in, of one's self, 47, 140 of the possession of property, 47, 141 spring guns and man traps, 143 of third persons, 144 justification of trespass under self, 383 DELIVERY. See Spscifio Deliyi:uy. DEMAND AND REFUSAL, evidence of a conversion, 502 what sufficient, 503 qualified refusal, 504 goods not in the defendant's possession, 505 claim of lien, 505 goods in the hands of public officers, servants, and bailees, 505 DESCENT, title by, 269 DESCRIPTION of parties to bill of sale, 4 GO DESERTERS, arrest of, 162 DESERTION of wife by husband, rights of wife, 237 DESIGNS, copyright in, 558 DESTRUCTION of chattels amounts to conversion, 501 DETENTION of goods and chattels, 89, 507 of persons. See False Imprisonment. A. 3k I i; I' i 858 DETINUE, 89 INDEX. DEVIATION from right of way, 294 from public highway, 294, G37 DIGGING, injuring right of support by, 389, 427, 429 right of, 289, 349. See Excavation. (lamnges foi", 387 under railways and canalu, 430 DILAPIDATIONS, ecclesiastical, 418 DIEECTOES, exceeding scope of authority, 121 false representations by, 739 deceitful prospectus and reports, 739 who liable for, 747 DISABILITIES, Busiior.ding the operation of the Statute of Limitations, 368 of the Prescription Act, 337 DISCHARGE OF TOETS, waiver, 52 accord and satisfaction, 52 judgment recovered, 54 continuing injuries, 56 double remedy, 57 death, 57 of the person injured, 58 continuing injuries, 59 of the wrong-doer, 60 marriage, 62 of a woman injured, 62 of a female wrong-doer, 63 bankruptcy, 64 of the person injured, 64 transfer of the bankrupt's wife's choses in action, 65 of the wrong-doer, 66 Statute of Limitations, 66 commencement of the period of limitation, 68 in the case of fraud, 69 extension of period in certain cases, 69 things done under local and personal statutes, 69 under Municipal Corporations Act, 1 882 . . 70 of an assault, 145 hearing and dismissal by justices, 145 of libel, payment into court, 213 DISCLAIMEE by trustee in bankruptcy, 239 DISCONTINUOUS EASEMENTS, 308 \ I ".) WIW '«' ^•IfS^ «3K™it-«K^., Ml I II iiuwiRifipRDPpi^ij .11 i.««pi;i|i i,|n jjpB y IMUpri J'W'ff ' s INDEX. DISEASE, imi)uting contagious, 192 DISEASED ANIMALS, straying, 130 DISSEISIN and ro-ontrv, 406 DISSOLUTION OF MARRIAGE, rights of wife after, 237 custody of cliildrou after, GOO DISTRESS, 72 injunction to prevent vexatious, 391 damage feasant, 398 on lands adjoining liigliways, 399 what may be distrained, 400 tender of amends, 401 sale of the distress, 402 duties of pound-keepers, 403 wrongful, 33 replevin, 515 goods distrained under a justice's warrant, 517 damages, 517 DISTURBANCE of market, 545 of ferry, 544 of public performance, 87 of public meetings, 155 of divine service, 157 DISUSE of right of way, 352 of right of water, 352 of right to light and air, 353 DITCHES, title to, 445 adjoining highway, 612 DIVINE SERVICE, arrest of persons disturbing, 157 DIVISION OF HIGHWAY, 314 DIVISION OF RIGHTS in land, 403 in chattels, 519 DOCKS, negligent management of, 315 DOCUMENTS, right of property in, 536 mandamus to give up public, 644 aK2 6S0 860 INDEX. If DOCU^fENTS OF TITLE, transfor of goods hy (lAivi^ry of, -iT'i ripflit of property in, 5.'].') by fuctorH, 17 4 sales, 474 pledgt'H, ni wlmt are dooumonts of title, 470 intruHtiiifi^, 170 iipjdicatiou of the Act, 478 revocation of authority, 479 DOGS, injuries hy trespassing', 48, 72, 131, 508 worrying sheep, 131, 49!), HOH chasing trespassing animals with, 41)!) damages for shooting, 511 injuries by ferocious, 132 the scienter, 134 distress damage feasant, 400 DOG-SrEARS, 144, 509 DOMESTIC ANIMALS, liability of the owner for trespasses by, 128 trespasses from defect of fences, 129 trespasses by dogs, 131 DOMESTIC RELATIONS, rights arising out of, 10, 582 of a master, 682. See Master. of a husband, 590. See Husband. of a parent, 595. See Parent. of the family, 604. See Fasiily. DOMINANT TENEMENT, destruction of, 357 DONATIO MORTIS CAUSA, title to goods and chattels by, 448 DOORS, sheriff breaking outer, G88 inner, 689 DOUBLE COSTS, repeal of statutes giving, 794 DOUBLE DAMAGES, assessment of, 85 DRAINAGE, rights of, 273, 274, 302, 328, 330 of mines, 330 DRAINS, nuisance from non-repair of, 364, 375 deepening, 296 l«f,HIIIHH.WfliHH»""i. " • >Wi»»|i.»i«il«w™P|W',H»l'- " ■^ 1 INDKX. DRAMA, constructed from novol, 5')1, 5.').') DRAMATIC COArrOHlTIONS, copyriglit in, 5.')2 iufringcniont of, 554 DRIVER, i(l»*ntifi('fttinn of pasHcngor witli, 2(i liability for injury to gratuitous passenger, MO sol EARTH, daniagos for taking, 300 EASEMENTS, kinds of, 292 right of way, 2'J2 di'viations, cx/rd riaiii, 21)1 repair of ways, 2'J 1 right of water, 2t)G repair of watercourses, 29() right to a fence, 290 sea-walls, 297 right to light, 298 right to air, 298 right to freedom from noise, 298 acquisition of, 298 express grant, 299 reservation, 299 distinction between reservation of land and reservation of casement, 300 implied grant or reservation, 301 rights of water, 302 rights of way, 303 way of necessit_y, 303 right of supjiort, 304 mutual support of adjoining houses, 305 right to light, 300 revival when cxtingiiislied by unity of ownorsliii), 308 licences, 309 liabilities of the licensor, 313 negligent management of docks and wharfs, 31G of canals, 316 of gates across tramway's, 31G of railway stations, 3 1 7 prescription, 319 the Prescription Act, 322 application of the Act, 324 rights of way, 327 rights of water, 328 right of support, 331 adjoining houses, 331 802 INDEX. *■■. E\8EUENT8— continued. prcHcriptioii— roM/Z/iMffr/. tho rru8nt, 331 ixTHonH iiiulcr (liMiihiMty, 337 laiidH (lomimul for lifo or yours, 338 custom, 310 iMiiiKiriiil ciiHtoms, 312 statute, 31. "5 nllotiuonts under luclosuro Aetn, 345 riffhts of navip;ation companies, 31(5 railway foncew, 31G transfer of, 317" oxtinguishnient of, 3oO. by release, 350. by abandonment, 351 of riglit of way, 352 of riglit to water, 352 of riglit to ligbt, 35.3 by unity of ovnership, 353 by destruction of tho dominant tenement, 356 by encroachment, 357 alterations in •windows, 358 by non-performanco of conditions annexed to tho grant, 359 of -ways of necessity, 359 statutory intorforenco with, compensation for, 765 EAVES, discharging water from, 292, 330, 407 on highway, C21 ECCLESIASTICAL CORPORATIONS, Statute of Limitations affecting, 269 ECCLESIASTICAL DILAPIDATIONS, 418 EDITORS OF NEWSPAPERS, privilege of, 197 — 204 ELEEMOSYNARY CORPORATIONS, Statute of Limitations affecting, 269 EMBANKMENT, 44. See Railway Company. EMPLOYERS' LIABILITY ACT, 110 what is a workman, 112, 115 what is a defect, 1 1 2 compensation, 113 IM>KX. EMrLOYERS' LTABU.ITY ACT-roM//«««/. notic'o of injury, 11. J, lir) trial in County Court, 111 roM )vh1 by ccrtioriiri, 1 11 contract out of, Ijindinj^ ropronontiitivo, 00.5 ENCROACnMENT, oxtinguiHhmcnt of scrvitufles hy, 3.')7 alterations in windows, 3,')8 ENGINE, si)ark8 from, 373 ENTICING AWAY Borviints, .'583 tlio damages, 584 cliildron, .'»84 uuirriod women, 591 tho damages, 591 ENTRY, remedy by, 48, 49, 395. forcible. See Fouciiile Extry. divesting possession, 267 for purposes of repair, 295, 290, 380 to retake boasts, 380 to retake goods, 383 to obtain possession, 381 by legal process, 382 by licence, 384 re-entry, 406 action by reversioner for, 408 EQUITABLE WASTE, •what is, 416 ESCAPE, liability of tlio shoriflF for, 704 ESTOPPEL, title to goods by, 480 in case of fraudulent representations, 745 ESTOVERS, common of, 288 EXCAVATION, 278, 389, 427, 429 negligent, 305, 379 adjoining railways, 305 under railways, 430 under watercourse, 429 trespass by lateral, 430 adjoining highways, 621 EXCESSIVE DAMAGES, 85, 230 EXCESSIVE EXERCISE OF LIMITED RIGHTS, 397 803 :^J t ? 864 INDEX. EXECUTION, malifiously issuing, 30 title to goods seized in, 481 in case of bankruptcy, 2-14, 482 EXECUTOE, rights of, 58, 522 continuing injuries, CO liabilities of, 61 tie sun fort, 481 EXEMPLAEY DAMAGES, generally, 81 against a sheriff, 709 EXPLOSIVES, injuiy from, 374 EXPULSION OF TRESPASSER, 381 EXTINGUISHMENT of natural rights, 280 of servitudes, 308, 350 by release, 350 by abandonment, 351 right of way, 352 right to water 352 right to light, 353 by unity of ownership, 353 by destruction of the dominant tenement, 356 by encroachment, 357 alterations in windows, 358 by non-performance of conditions annexed to the grant, 359 of ways of necessity, 359 of highways, G14 EXTORTION, money obtained by, 32, 33, 98, 161 by the sheriff, 707 treble damages for, 709 FACTORS, transfer of goods by, 473 sales, 474 pledges, 474 documents of title, 476 intrusting, 476 application of the Act, 478 revocation of authority, 479 reputed ownership of goods in the pocsession of, 495 FACTORS ACTS, 474 FAGGOT VOTES, 257 FAIR, right to hold, 340 INDEX. 805 grant, FALSE IMPRISONMENT, whut constitutes, 147 arrest of tho wrong person, 151 justification of, 151 arrest in execution of warrants of justices, 151 arrest without warrant, 1 5 1 reasoiuible and probable cause, 152 arrest for a misdemeanour, 15.'] aiTOst to preserve tlie peace, 154 what is a broach of tlio peace, 155 arrest under the Larceny Act, 15G arrest for mahcious injuries to property, 15G arrest of persons committing indictable offences in tho night, 157 arrest of persons disturbing divine service, 157 arrest of vagi-ants and persons found committing acts of public indecency, 158 aii'ost of fugitives, 158 arrest under the Merchant Shipping Act, 158 arrest by servants of railway companies, 159 arrest by order of a judge, 159 malicious arrest, KiO arrest of recruits and deserters, 102 imprisonment of dangerous lunatics, 162 arrest of a principal by his bail, 103 remedy for, 163 damages recoverable, 163 too remote, 104 mitigation of, 165 FALSE PRETENCES, 32, 33, 743 FALSE REPRESENTATION, what actionable, 9, 732 expression of opinion or belief, 732 knowledge of tho falseliood, 732 unintentional deception, 734 motive of the defendant, 735 to third persons, 736 forgery, 736 to bring about a marriage, 737 by the parties, 737 by relations, 737 as to the credit of third persons, 738 of copartnerships and companies, 739 by directors and oflicors, 739 in prospectuses and reports, 739 money obtained by, 32, 743 remedy for, 744 action for damages, 744 specitic performance, 744 estoppel, 745 who responsible for, 746 principal for his agent, 746 1'oint -stock companies, 747 lability of the agent, 748 infants, 748 married women, 748 866 INDEX. h ■' ^; II. If FALSE EETUE^, to writ of mandamus, 650 FALSE STATEMENTS, not defamatory, when actionable, 4, 180 FAMILY, assault in defence of, justified, 47, 144 FAMILY EIGHTS, under Lord Campbell's Act, 604 damages recoverable, 605 action foi* benefit of children, 606 death of an olien, 606 FATHER. See Parent. right of, to the custody of infant child, 595 control of the court, 597 after judicial separation or dissolution of marriage, 600 of British subjects born abroad, 603 of foreigners in this country, 603 FEES, right to, 581 FELLOW SERVANTS. See Master. FELONY, charges of, when privileged, 187 how justified, 212 false charges, 220 bond fide belief, 224 FEME COVERTE. See Husband ; Wife. FENCE, defective, 129, 389, 400 right to a, 292, 296, 354 sea-walls, 297 acquisition by prescription, 331 by Railway Acts, 346 wire, 363 on common, 397 to wells, shafts, &c., 429 to excavations adjoining highway, 621, 622 boimdary, title to, 443 ditches and hedges, 445 trees and bushes in, 445 FEROCIOUS ANIMALS, liability of keepers of, 132 the scienter, 134 FERRY, 103 right to, 543 disturbance of, 544 compensation for, 759 FICTITIOUS TRANSFERS, what are, 257 INDEX. 867 je, 600 FINDING, title to goods and chattels by, 446, 498, 510 FIEE, damage from, 370 from railways, 37, 373 from nogligouco of servants, 373 adjoining highway, 621 rights of rovorsionor, 408 FIEE PLUGS. See AVateu Company. FIREWOEKS, injuries from, 19, 42. See Explosives. FISH, rights of property in, 542 FISHERMAN, disturbance of, 8 FISHERY, rights of, 50, 74, 282, 287, 291, 322, 341 several fishery, 291 common of iishe.y, 291 in navigable rivers, 291, 616 in non-navigable rivers, 291, 616 in tidal rivers, 291, 616 by custom, 341 FISHING WEIR. See Weir. FIXTURES, 48 in bankruptcy cases, 490 what are, 526 transfer of, 529 injuries to, 531 damages, 531 FLAGSTONE, laying down, 295 FLATS, right of support in, 433 FLOOD, in mines, 369, 432 FLOORS, ownership of separate, 369. 433 overloading, 434 FOLD COURSE, 287 FOOT PASSENGER, rights to highway, 614, 627 FORCE, money obtained by, 32 If WW!",f IIMIWf ''•'^"-"l JJifM- iiltlSJippp*'?*)' '*V)fi!W»,l 'Fg 868 INDEX. FORCIBLE ENTRY, 48, 381, 382 FOREIGN COUNTRIES, torts committed in, 1 35 FOREIGN SHIPS, death of aliens on board, under Lord Campbell's Act, 606 collisions with, 634 FOREIGNERS, custody of children of, 603 FORESHORE, 12, 297, 341, 438 FORGE, nuisance from, 368 FORGERY, of bill of exchange, 538 cheating by, actionable, 7, 736 FOULING STREAM, right of, 328, 353, 378, 388 injunction to prevent, 392 FOX-HUNTING, no public right oi, 12, 95 FRANCHISE, of market, 544 FRAUD, avoidance of sale by, 456 bailment by, 507 in wrongly naming articles for sale, 574 requisites of, 732 false representation or concealment, 732 expression of opinion or belief, 732 knowledge of the falsehood, 733 c" nstructive fraud, 733 unintentional deception, 734 fraudulent intention, 734 motive of the defendant, 735 representations to third persons, 736 cheating by forgery, 736 false representations to bring about a marriage, 737 by one of the parties, 737 by relatives, 737 false representations as to the credit of a third person, 738 of co-partnerships and companies, 739 by directors and officers, 739 deceitful prospectuses and reports, 739 money obtained by, 743 remedies for, 744 action for damages, 744 specific performance, 744 estoppel, 745 who responsible for, 746 principal and agent, 746 \ INDEX. 869 FE AUD — con tin tied. who responsible for — continued. joiut stock compauies, 717 liability of the agent, 7-18 infants, 718 married women, 748 commencement of the period of limitation in the case of con- cealed, 09, 269 FEAUDULENT TEEFEEENCE, 251, 2oG FEAUDULENT EEMOVAL OF GOODS, 219 FEAUDULENT TEANSFERS, avoidance of, 247, 249 FEEE FISHEEY, 291 FEEE WAEEEN, rights of, 290 FEEEHOLD OFFICES, mandamus to restore to, 04 8 FEIENDS, communications between, when privilogod, 191 FEONTAGEE, liability of, 298 FEOST, water-pipes damaged by, 23 water spilt in streets f izen, 45 FUGITIVES, arrest of, 158 FUNEEAL EXPENSES, not recoverable under Lord Campbell's Act, 606 FUENITUEE, in bankruptcy oases, 492, 495 constructive possession of, 523 i GAME. See Sporting. disturbance of, 6 overstocking land with, 132, 290 rights of shooting, 290 under Inclosure Acts, 345 dead, falling on land of neighbour, 383 injured by trespassing dogs, 509 right of property in, 541 GANGWAY, insufficient, 315 GA0LEE8, liabilities of, 721 ff f"^ ■ 4Wl^|i4..VWV.'IV'W.^>')iW*W*W(j8 sold by the bankrupt, 490 registered bill of lale, 492 goods never owned by the bankrupt, 492 possession by manufacturers, workmen, and de- positarieg, 494 possession by factors, 495 S72 INDKX. n I GOODS AND CnATTET.S— ro«////,//Y/. ropxitod ownorship of goods novor ownoil by tlio bank- rui)t — continiifd. possuHHion by tnistt'cs, liXJ l)osH()S8ioii ])y husband of wifo'w property, 407 injurioH to, 498 slander of title, 2!i8 trespass, 498 conversion, 499 wrongful destruction, .001 disposal of, l)y purclinsers without title, 502 by innocent bailees, 502 demand and refusal, 502 ■what sufficient, 503 qualified refusal, 504 goods not in the defendant's possession, 505 claim of lien, 505 goods in the hands of public officers, servants, and bailees, 505 by railway companies, 507 detention, 507 injuries to animals, 508 remedies for injuries to, 509 damoges, 509 for the conversion of bills and notes, 512 where the goods have been returned, 5 1 3 in the nature of intei'est, 513 special, 513 seizures under the Customs Acts, 514 injunction, 514 replevin, 515 chattels disti-aincd under a warrant of justices, 517 damages, 517 recaption, 517 who responsible for injuries to, 518 joint conversion, 518 conversion by an agent or sei-vant, 518 conversion by married women, 519 division of rights of property in, in respect of quantity, 519 special property, 520 reversionary interest, 520 possession, 521 constructive, 522 damages for injury to, 523 joint-tenants and tenants in common, 524 in particular cases, 625 fixtures, 525 growing crops, 531 ships, 533 grants of arms, 535 title-deeds and leases, 535 documents and securities for money, 536 letters, 536 bills, notes, and cheques, 536 animals ycr3.'i GRATING in highway, G2() GREENS, rights on, 340 GROUSE, property in, 541 GROWING CROPS, rights of property in, 404, 531 GUARDIAN for nurture, 597 appointed by mother, 597 appointed by Court, 604 GUN, carelessly leaving loaded, 42, 43 spring, 143 GUNPOWDER, damage from, 374 873 HABEAS CORPUS, writ of, 680 HARBOURING servants, 583 the damages, 584 children, 584 married women, 591 the damages, 591 HARE, property in, 541 HATCH in a stream, 292 HAY. -y^c Crops. A. S7-4 INDEX. ^'1 If? II IIAYIIICK, flro cauHod by ill-mado, 372 falling on liorao, 389 HEDGES, titlo to, 445 trees and bushes in, 445 HERONS, rights to, 542 niOIIWAYS, tunnelling under, 21 animals tethered in, 2G railways running nlongHido, 30, 37 erecting booths in, 49 cattle straying on, 130 liability to fenco of porsons diverting, 31 I animals trespassing on land adjoining, 399 access to, 441 title to the soil of, 440 waste land odjoining, 442 creation of, G07 dedication, (507 animus dedicandi, G08 who mav dedicate, 61 1 limitodj Gil in 1 aspect of time, G13 highway of necessity, G13 use of, G14 by the public, CI 4 by adjoining owners, 614 extinction of, G14 injuries to, 616 obstruction, 10, 11, 24, 616 by statute, 35 removal of, 636 deviation, 294, 637 other nuisances to, 618 from neglect of statutory duties, 623 neglect of railway coirpanies to erect and main- tain ^iridgos over, 623 negligent management of railway gates placed across, 624 collisions in, 627 surveyors of, liabilitj' of, 731 notice of action to, 779 HIEERS, rights of, 521 HORSES. See Riding. running away, 19, 23, 25, 100, 109, 628 unskilful management of, 25 Easser-by whipping, 43 icking, 109 biting, 128 straying, 130, 389 distress damage feasant of, 4C0 sale of stolen, 451 left unguarded in highway, 627 A ^ INDKX. H7r^ id maiu- placed t HOUSE, alteration hy tonant, 3!) turning troHpassor out of, 111 trospassoH, ItHO injuries to, 3M7 on common, .TJ7 poHsession of key, 40(5 wanto in not maintaining, 41 H right of adjacent Hiii)i)()rt for, .'}().'), 379 acrpisition of, 'Ji)H implied grant or reservation, 301 prcHcription, 331 adjoining Iiouhoh, 331 injurioM to, 379 negligent excavations, 379 right of subjacent support for, 127 injunction to prevent disturbanco of, 429 ownershi[) of Hoparato iloors, 369 right of snpi ort, 433 adjoining liighway, 017, G18 ruinous, 619 statutory compensation for, 7.32 HOUSE BOTE, 289 HOUSE OF COMMONS, privilege of witness before committee of, 183 HUNTING, no riglit to enter on land for purpose of, 12, 95 licence for, 309 HUSBAND, effect of the bankruptcy of, on wife's chases in action, 65 and wife, joinder of, in action, 77, 122 liability of, for his wife's torts, 122, 123 transfer to, of wife's rights of property, 234 immovables, 234, 235 movables, 235, 236 fruits of the wife's labour, 236 suing wife for torts, 124 maintenance of wife, 238 reputed ownership of his wife's goods in the possession of 497 conversion by the wife, 519 rights of, 590 personal injuries to the wife, 590 discharge by conviction before justices, 590 enticing away and harbouring the wife, 59ii the damages, 59t adultery, 591 the damages, 593 application of, 594 IDENTIFICATION of a passenger with his driver, 26 IDIOTS, 162 ILLEGITIMATE CHILD, right of mother to custody, 599 3 l2 VW^ ■fif^ya Jiiip || \iffy-jim ■<■ I viiiii lii^r iV. ^•''' 870 INDKX. l! , If I IMPLIED GRANT uf uiiHemuutH, HOI, U()2 I^^PKrS0N^IENT. Sra Auuest ; False Imimusonment. lAirilOVEMENT.S, compousation for, 532 IMPUTATION. See Dekamation. INADEQUACY of price, a fiipn of fraud in transfers, 2JH of damages, 87 in casoH of defamation, 217 INCLOSURE ACTS, 315 INCORPOREAL RIGHTS, right of ferry, 513 disturbance, 54 1 riglit of market, 544 tolls, 545 disturbance, 545 copyriglit. iSt-e Coi-Yuiaiir. patent right. See Patent Right. trade-mark. *SrcTiUDE-MARK. title to fees, 58) INCUMBENT, liable for dilapidation, 418 INDECENCY, arrest of persons found committii.g acts of public, 158 INDEMNITY of trustees and commissioners of public works, 730 INDICTMENT, malicious, is actionable, 220 INEVITABLE ACCIDENT, justification of tort, 50, G32 INFANTS, liability of, 121 for fraud, 748 under Statutes of Limitation, 269 gift by, 448 custody of, 595. See Ciiildben. INFECTIOUS DISEASES, imputing, 192 of cattle, 130 INFERIOR COURTS. See Judicial Officers. INFORMATION, before magistrates, malicious, 220 ^■^r INDHX. 877 INFRINGEMENT OF RIOIITS, ' 7 of i)orHoiial Hocurity, 138 of liborty, 1|7 of ruputation, 10(5 of proporty, 258 ill liiuci, 200 in goodH and chattolH, IDR of copyriffht, A^O of patent, .>7() of trado-niark, HTJ of master, .'5H2 of huHband, /iiX) INJUNCTION, romody by, 90 in caHtm of throntouod injury, Ul effect of luehes and delay, U2 effect of acquiescence, 1)2 in actions for libel, 217 for injuries to land, 390 liow enforced, 393 against local board, 393 to prevent obstruction to right of way, 394 to prevent trespasses, 390 to prevent nuisances, 391 acquiescence, 393 to prevent obstructic-ns to light, 394 rights of tenant and reversioner, 412 to prevent waste, 421 effect of laches, 423 between joint tenants and tenants in common, 426 between mineral and surface-owner, 429 for injuries to goods, .514 by Court of Bankruptcy, 5 IS for infringement of copyright, 551 for infringement of patent-right, 572 for infringement of a trade-mark, 580 against trustees and conmiissioners of jiublic works, 729 to make compensation, 760 to prevent unnecessary injury under statutory powers, 768 to prevent misuse of land, 709 INJUEIE.S. See iNFnixaEMEXT or Eights. to licensee, 313 to trespasser, 314 permanent, 407 INNUENDO, 206—209 INSURANCE, no ground of reduction of damages, 84 INTEREST, judges disqualified by, 653 justices disqualified by, 667 damages in the nature of, 513 INTERESTED PERSONS, privilege of, 192 ??«Hwrwj;i;^WW"w?**H»t»*|.r«-*''!!Wi 880 INDEX. n\ JUDICIAL PEOCEEDINGS, privileged, 181 reports of, 197, 198 JUDICIAL SEPAEATION, rights of wife after, 237 custody of children after, 600 JUEY, province of. in defamation, 208 in malicious prosecution, 222 JUEYliIEN, pri.iloj^. v>i, 183 JUSTICES OF THE PEACE. Sec Judicial Officers. OTTSTIFICATION, plea of, in libel cases, 215 JUSTIFICATION OF TOETS, 47 self-defence, 47, 140, 183, 382 defence of property, 47, 141 defence of third persons, 47, 144 abatement of nuisance, 48, 71, 396 reasonable correction, 48, 144 detention for debt, 48 removing fixtures, 48 preservation of peace, 145 removing obstrn ; ."nus, 48 entry, 48, 380. ■^:-' Fvtry. distraint damntj v.-. r;nt, 48. See Damage Feasant. privilege, 4y. I .1 matters of public in lo ost, 49 truth, 49, 212 reasonable and probable cause, 49, 151 lega' authority, 49, 151, 382 particular statutes, 49 custom, 49 leave and licence, 50, 140, 384 inevitable accident, 50 act of plaintiff himself, f 1 injuries to larid, 380. See Land. !' KEY, possession of, not possession of building, 406 of church, 435 LACHES, in applying for injunction, effect of, 92, 423 LAKE, title to the soil of, 439 LAMP over highway, 620 negligently hung in room, 20 INDEX. 881 LAND, rights of property in, 260 acquisition of, 261 title by occupation, 261 the Statutes of Limitation, 262 occupation by poor relations or servants, 263 by a tenant at will, 263 by a tetant from year to year, 264 wiongful receipt of rent, 26n possession of a co-pareoner, joint tenant or tenant in common, 266 what is a loss of possession, L62 of a younger brother or relation, 266 bond Jide purchasers of trust estates, 266 acknowledgment of title, 267 entry upon land and continual claim, 267 disabilities, 208 concealed fraud, 269 ecclesiastical and eleemosynary corpora- tions, 269 title by descent, 269 title by purchase, 269 servitudes, 270. See Servitudes. transfer of, 234. See Transfer. rigut of support, 277 transfer of natural rights in, 279 extinction of natxLral rights in, 280 injuries to, 258 slander of title, 258 trespass, 360 abuse of a licence, 361 continuing trespass, 361 nuisance, 361 continuing nuisance, 364 non-repair of drains, 364 offensive smells, 365 prescriptive rights to, 367 noise, 367 from water, 368 flooding of mines, 369 from fire, 370 from railways, 373 from negligence of servants, 373 from explosive eubstfinces, 374 liability of the occupier, 374 liability of the landlord, 375 justification of, 381 liberum tenementum, 381 legal process, 382 self-defence, 382 leave and licence, 384 remedy for, 385 by action, 385 damages, 385 wilful and malicious trespasses, 386 trespasses in dwelling-liouBes, 386 T^ ^W!!PP5i?lR«!?!WW^^»iW«?^ iill i: li «82 INDEX. LAND — rights of property in — continued. remedy for injuries to, by action — continued. damages — con tin tied. digging coal, 387 injury to buildings, 387 mesne profits, 388 for nuisances, 388 injunction, 390 to prevent trespasses, 390 to prevent nuisances, 391 against local boards, 393 acquiescence precluding relief, 393 to prevent obstructions to light, 394 by entry, 395 by abatement, 396 of nuisances on commons, 397 of nuisances arising from excessive exercise of limited rights, 397 by distress damage feasant, '>98 on lands adjoining highways, 399 what may be distrained, 4C0 tender of amends, 401 sale of the distress, 402 dtities of poundkeopers, 403 division of, in respect of quantity, 403 the possession, 404 disseisin and re-entry, 406 tenant and reversioner, 407 damages, 411 injunction, 412 waste, 412 as to trees, 414 as to deer, 416 equitable, 416 by trustees, 417 ecclesiastical dilapidations, 418 by copyholders, 420 remedies for waste, 421 damages, 421 injunctiou, 421 effect of laches, 423 joint tenants and tenants in common, 423 ruinous party walls, 425 rights of the survivor, 426 remedies against each other, 426 injunction, 426 in special cases, 426 minerals, 426 support from the subsoil, 427 injunction to restrain disturbance of, 429 unguarded mining shafts, 429 under railways and canals, 430 separate floors in a biulding, 433 church, chancel and churchyard, 434 the seashore and bed of navigable rivers, 437 land adjoining seashore, 438 the bed of rivers and fresh- water lakes, 439 ■^T INDEX. 883 393 , 394 LAND — continued. rights of property in — continued. in special cases — continued. soil of turnpike roads and highways, 440 waste land adjoining, 442 soil of private roads, 442 soil of towing-paths and banks of navigable risers and canals, 443 boundary walls and fences, 443 ditches and hedges, 445 trees and bushes, 445 in boundary fences, 445 compulsory purchase of, 752. See Sxatuxomy Compensa- tion. xercise LANDLOED, liability for nuisance, 375 claim for rent under an execution by the sheriff, G97 by the bailiff of the county court, 714. See Rkver- SIONER. ',429 LANDS CLAUSES ACTS. See Statutory Compensation. LARCENY ACT, arrest under the, 15(5 LEASE, right of property in the document, 535 disclaimer of, on bankruptcy, 239 LEASEHOLDS, transfer of, by bankruptcy, 239 LEAVE AND LICENCE, justification of trespass to laud under, 50, 384 LEGAL PEOCESS, justification of trespass under, 382 LESSEE. See Tenant. LESSOR. See Reversioner. obstructing light, 307 LETTERS, right of property in, 536 used as trade-mark, 577 LETTERS PATENT. See Patent Right. LEVANT AND COUCHANT, 285 LEVEL CROSSINGS, 41, 316, 318, 624 ii ?5-T 884 INDEX. LIBEL, action for, against corporation, 120 distinction between slander and, 1 GO •what is, 168 malice in law, 180 communications absolutely privileged, 181 proceedings in courts of justice, 181 communicationsprivilegedwhennot made maliciously, 1 84 extent of the privilege, 186 petitions to the Queen, Parliament or officers of state, 187 statements by public officers in discharge of their duty, 188 communications from clergj-men to their parish- ioners, 189 statements to the bishop respecting clergymen, 190 communications between relatives respecting a person proposing marriage, 190 communications between friends to prevent an injury, 191 comnmnications by persons having a pecuniary interest in the matter of the communication, 192 disclosures made bond fide in the course of an investigation set on foot by the plaintiff, 1 93 communications respecting the character of ser- vants, 193 communications between subscribers to chari- ties, 194 comments in excess of the privilege, 196 reckless and inconsiderate communications, 197 communications addressed by mistake to the wrong person, 186, 197 reports of trials, 197 ex parte statements and preliminary pro- ceedings, 198 reports of proceedings in Parliament, 199 reports of proceedings at public meetings, vestry meetings, &c., 200 reviews and criticisms, 201 of sennons and clergymen, 202 of the public character of public men, 203 of matters of public and national importsmce, 203 by one tradesman of the goods of another, 204 malice in fact, 205 interpretation and application of the words used, 206 evidence of surrounding circumstances, 207 proof of subsequent libels, 208 of the judge's direction to the jury, 208 application of the libel to the plaintiff, 209 what is a publication, 209 publication in newspapers, 211 justification, 212 truth of the charge, 212 discharge, 213 payment of money into court, 213 ^ INDKX. 88r> LIBEL — continued. remedies, 214 remedy by action, 214 not triable in county court, 788 damages recoverable, 214 damages too remote, 40 mitigation of damages, 2 1 ') libels by tlie plaintiff ou the defendant, 216 offers of apology, 2 1 G inadequacy of damages, 217 injunction, 217 who is responsible for, 217 subsequent publishers, 2 1 7 joint libellers, 218 principal and agent, 218 corporations, 218 evidence of malice, 220 LIBEETY, rights of, 3, 147. See False Impkisonmext. LIB BRUM TENEMENTUM, justification of trespass under, 381 LICENCE, 309 maliciously indorsing cabdriver's, 39 to go upon another's land, 309 rights of the licensee, 350 liabilities of the licensor, 313 negligent management of docks and wharfs, 316 of canals, 3 1 6 of gates across tramways, 316 of railway stations, 317 disturbance of, 378 abuse of, 361 justification of trespass under, 384 to eject, 382 to use a patent, 569 obtained by fraud, 385 whea granted by Board of Trade, 569 LICENSEE, injuries to, 313 of a patent, 569 LIEN, 478, 505, 581 LIGHT, insufficient, at railway station, 317 right to, 11, 298, 409 implied grant or reservation of, 306 acquisition by prescription, 331 effect of unity of possession, 333 enlargement of windows, 334 extinguishment of, 350 abandonment of, 353, 393 loss of, by encroachment, 358 injury to, 379 angle of light, 380, 395 injunction to prevent, 394 V^l?^ 111)11 ijMPjPjijif|pji,'PJ.ii',L*!(J«iJ-ilM!iwi.(»>JP,"ii irumii 886 INDEX. !l y LIMITATION, Statutes of, 66, 67 in case of married woman, 62, 269, 337 commencement of the period of, 68 extension of period in certain cases, 69 in the case of fraud, 69 in respect of things done imder local and personal statutes, 69 under Municipal Corporations Act, 1882. .70 of actions for the recovery of land, 262 what is a loss of possession, 262 occupation by poor relations or servants, 263 by a tenant at will, 263 by tenant from year to year, 264 wrongful receipt of rent, 265 possession of a coparcener, joint tenant, or tenant in common, 266 of a younger brother or relation, 260 occupation by bondjide purchasers of trust estates, 266 acknowledgment of title, 267 entry upon land and continual claim, 267 disabilities, 268 concealed fraud, 07, 269 ecclesiastical and eleemosynary corporations, 269 of actions for infringement of cojiyright, 551 of liability for collisions at sea, 634 of actions against justices, 679 LIMITED EIGHTS, 397 LIVERY, right to, 543 LOCAL AND PERSONAL STATUTES, limitation of actions for things done under, 09, 70 LOCAL BOARDS, injunction to restrain, 393 LOCAL GOVERNMENT OFFICERS, trustees and commissioners of public works, 724 remedy by action against, 727 exemption of, from personal liability, 727 injunction, 729 liability for the acts of contractors, 730 liability of the contractor, 730 indemnity of, 730 surveyors of highways and county bridges, 731 LOCOMOTIVES, 373 LORD CAMPBELL'S ACT, actions under, 604 damages recoverable, 605 for benefit of children, 606 death of an alien, 606 LUNATICS, imprisonment of dangerous, 49, 162 liability for torts, 124 under Statutes of Limitation, 269 vi-^£j^«£i^u^a.-iii i^Qr^in^iMJi. ifU^^v^i INDEX. 8H< MAOHINEEY, dangerous, IIR adjoining higliways, 62 1 •ersonal MAD DOGS, 135 MAGAZINE, copyright in, 548 in title of, 551, 577 lant in 3, 260 MAGISTRATES. See Judicial Officers. statements by, when privileged, 183 reports of procoodingH before, 199 informations before, 220 jurisdiction on their own view, 658 jurisdiction on information or complaint, 659 indictable offences, 659 warrant to apprehend, 659 commitment for trial, 660 summary jurisdiction, 661 ousted by claim of title, 664 justices interested, 667 convictions on bye-laAvs, 669 drawing up convictions, 669 enforcing convictions, 670 warrant of distress, 670 warrant of commitment, 671 after notice of appeal, 671 effect of conviction, 672 search warrant, 672 wrongful acts by, 673 abuse of jurisdiction, '373 absence or excess of jurisdiction, 674 where there is jurisdiction primd facie, 675 wrongful conviction by one justice enforced by another, 676 distress-warrant for poor-rates, 676 conviction affirmed on appeal, 677 exercise of discretionary powers, 677 discharge of, 679 limitation of actions, 679 remedies for, 13, 680 notice of action, 680 damages, 680 habeas corpus, 680 in case of refusal to act, 681 MAINTENANCE, action of, 29 of married woman, 238 of rights of way, 294 of watercourses, 296 of fences, 296 MALICE, generally, 27 in law, 28 ;l < -i-'^'s ^ ^ihl '-'^WwCui^ii^^iV. tSiiSi^ rnr 888 INDEX. Malice — cow //« ued. gonorally — continued. mnliciouR aHsortion of a logal right, 2!) maliciouH and nnfouiulfd actiuiiH, 29 in tlio nanu) of a ])au])cr, 2<.) nialicionsly isHuing cxccntion, .'{() maliciouH prosecution hy court martial, 01 in slander and libol, 180, 185 malico in law, 180 malic'o in fact, 205 in malicious prosecution, 225 of corporations, 231 in trespasses, .')8fi MALICIOUS AEEEST under a judge's order, 160 MALICIOUS INJURIES TO PROrERTY, arrest for, 1 50 costs in action under the Act, 794 MALICIOUS PROSECUTION, action against corporation, 120 what is, 219 the prosecution, 219 indictment, 220 information before magisti-ates, 220 absence of i-easonablo and probable cause, 221 duty of judge, 222 malice, 225 termination of the prosecution, 229 remedies, 229 action for damages, 229 not triable in County Court, 788 damages recoverable, 230 mitigation of damages, 230 who responsible for, 231 prosecution by an agent, 231 corporations, 231 maliciously causing a search-wun-ant to issue, 232 malicious exhibition of articles of the peace, 232 malicious proceedings in bankruptcy, 233 malicious proceedings by court-martial, 31 malicious presentation of winding-up petition, 233 MANDAMUS, remedy by, 638 when granted, 638 where there is another remedy, 640 to judicial officers, 641 rule to justices of the peace, 641 to ministerial officers, 642 to overseers and clergymen to bury a pauper, 643 to give up public documents, 644 to elect public officers, 645 to admit to public offices, 645 to restore to public offices, 646 freehold offices, 648 offices held at will, 649 INOtJC. AHU MANDAMUS— row/.H urd. remedy hy — continued, wlion grawifuX—vontlmml. whoro tht»ro iiro viHitatoriul powers, fi-l!) medical prnctitioiiorH to tlio n'n^iHtor, i J il',-i, 892 INDEX. MINISTERIAL OFFICERS— con' •/»««(/. the high bailiff of the county court. See County Court Officers. constables, 71fi exemption for acts done in obedience to warrants, 716 excess of authority, 719 statutory protection, 719 gaolers, 721 messenger of the Court of Bankruptcy, 722 MINISTERS, petitions to, 188 MISCHIEVOUS ANIMAL. See Animal. MISDEMEANOUR, arrest for a, 153 MISTAKE, trespass by, 18, 20 arrest by, 151 libel by, 186, 197 MITIGATION OF DAMAGES, generally, 83 in assault and false imprisonment, 1 65 in slander and libel, 215 libels by the plaintiff on the defendant, f^l6 offers of apology, 216 in malicious prosecution, 230 in actions for seduction, 589 MIXING CHATTELS, 447 MONEY obtained by force or extortion, 32 obtained by fraud, 743 paid into court, 791 MORTGAGE by trader, an act of bankruptcy, 254 MOTHER, right to appoint guardian, 597 right of, to the custody of infant child, 596, 598 to custody of illegitimate child, 599 right of access, 699 after judicial separation or dissolution of marriage, 600 MOVABLES, rights of property in, 6. See Goods and Chattels. MUSICAL COMPOSITIONS, copyright in, 552 infringement of, 554 NAME, copyright in, 574, 577 m r Court ts, 716 iage, 600 iNDi:x, NATUEAL EIGHTS, to support, 277 transfer of, 279 extinction of, 280 NAVAL 0FFICEE8, liabilities of, 723 NAVIGABLE EIVEES, rights of riparian owners, 275 right to the beds of, 437 right to banks of, 443 access to, 44 1 rights in, 345 right of navigation, 615 right of towing, 616 right of fishing, 291 616 obstructions to, 618 removal of, 405, 637 collisions in, 628 NAVIGATION, improper, 27 NAVIGATION COMPANIES, rights of, 345, 405, 443 NECESSITY, easement by, 301 water, 274 support, 277 way, 303 extinction of, 350, 356, 359 highway of, 613 NEGLIGENCE, injuries occasionsd by, 20 putting libel in wrong envelope, 186 injuries to licensees from, 313 to trespassers from, 314 in managing docks and wharves, 315 canals, 315 gates at level crossings, 315, 318, 624 railway stations, 316 banks to streams, 45 in pulling down houses, 379, 387 in excavating, 379 identification of a passenger with his driver, 26 gross, 21 contributory negligence, 23 under Lord Campbell's Act, 605 collisions, in Bighways, 26, 627 at sea, 628 inevitable accident, 632 compulsory pilotage, 632 with foreign ships, 634 remedies for, 634 limitation of liability, 634 -893 TT^ Wl^f^WP'WW lli :- I la^i'i 894 INDEX. NEGLIGENCE— to« »« f, f i;:' . if 8y« ' ' . ! '■■■.■■ -'■ ' lM)i::X. VAKENT— continued. right to the custody of infant child, 595 control of the court, 597 rights of the mother, 598 right of access, 599 ofter judicial separation or dissolution of marriage, 600 of British subjects born abroad, G03 of foreigners in this country, 603 general powers of court to appoint guardians, 604 PAEISH OFFICEES, tenant to, 265 PAEISH PROPEETY, 543 PAELIAMENT, petitions to, when privileged, 1 87 fictitious creation of votes for, 258 reports of proceedings in, 199 PAEOL AGEEEMENT, extinguishing easement, 350 PAETNEES, 98 PAETY-WALLS, taking down, 24, 106 rights in respect of, 425 title to, 443 ■what are, 444 PASSENGEE. See Eailway Company. identified with di-iver, 26 arrest of, 118 insubordinate, 145 PASTUEAGE, rights of, 287 PATENT-EIGHT, what it is, 559 first inventor, 560 duration, 562 subject-matter of a patent, 562 novelty, 564 utility, 566 the specification, 566 transfer of, 568 licensees, 569 compulsory licences, 569 prolongation of, 569 infringement of, 570 remedies for, 572 injimction, 572 tenants in common of, 573 costs in actions for, 792 ■Ml w^ ige, 600 04 INDEX. 89'J I'AWNBROKEE, stolen property pledged with, 453 rights of, against pawnor, 524 PAYMENT INTO COUET, 791 in cases of defamation, 213 PEACE, assault to preserve the, 145 arrest to pi-eserve the, 154 what is a breach of the, 155 malicious exhibition of articles of, 232 PENNING BAnK WATER, 272, 274, 393 PERSON, injuries to the, 138. (Sec Assault ; False Imprisonment. PERSONAL CHATTELS, what are, within tho Bills of Sale Acts, 463 PERSONAL SECURITY, rights of, 3, 138. (See Assault. PERSONALTY. See Goods. I ■■,( '■ti PETITIONS, to the Queen, &c., when privileged, 187 maliciously presenting winding-up, 233 PEW, title to, 436 PHOTOGRAPHS, common law right to, 546 copyright in, 555 of prints, 557 PICTURES. See Paintings. PIER, injuries to, 22, 439 PIGEONS, damage feasant, 48, 72, 132, 401 shooting matches, 128 PIGS. See Cattle. keeping, 365 V'V': PILES, obstructing navigable river, 618 PILOT, injuries to, 315 $ '' i ti M m iii' ill 900 INDEX. PILOTAGE, compulsory, 632 PIPES, repairing water, 296 appendant to house, 302, 378 PIKACY, sale of ship engaged in, 449 of goods taken by, 449 PLAINTIFFS, joinder of, in an action, 76 f)artie8 jointly interested, 76 lusband and wife, 77 PLATFOEM, of railway station, 318 PLEDGE, of goods by factors, 474 documents of title, 476 intrusting, 476 application of the Act, 478 revocation of authority, 479 by vendor after previous sale, 479 by purchaser, 479 PLOUGH, turning, on neighbour's land, 292 POISONOUS TREES, 363 POLICE CONSTABLE. See Constable. POLICE MAGISTRATE. See Magisteate. POLICY OF INSURANCE, conversion of, 536 POLL, maliciously refusing a, 28 POSSESSION, non-transfer of, a sign of fraud, 249 evidence of seisin, 261 abandonment of, 262 of land, 404 disseisin and re-ontry, 406 of goods, by the grantor of a bill of sale, 469 apparent possession, 469 of bankrupt, what is, 484 title by, 521 constructive, 522 damages for injury to, 523 POST, libel sent by, 211 f INDEX. POST-OFFICE, liability of, 14 POUND, what is a, 401 breach, 512 POUND-KEEPERS, duties of, 403 POWER of revocation in settlement as against creditors, 252 of appointment, not separate property of wife, 498 PRE-EMPTION, right of, of superfluous land, 771 PREFERENCE. See Fraudulent Pueference. PRESCRIPTION, acquisition by, 319 the Prescription Act, 322 application of the Act, 324 rights of way, 327 rigats of water, 328 rights of support, 331 adjoining houses, 331 right to a fence, 331 right to light, 331 effect of unity of possession, 333 enlargement of windows, 334 interruption of enjoyment, 334 {jersons under disability, 337 and demised for life or years, 338 for a nuisance, 367 PRESERVATION OF PEACE. See Peace. PRICE LIST, copyright in, 558 PRINCIPAL. See Agent. arrest by bail, 163 liability of, for the acts of his agent, 96, 746 subsequent ratification, 97 in defamation, 218 in malicious prosecution, 231 in conversion of goods, 518 for fraud, 746 companies, 748 PRINTER, liabilities of, 209 PRIVATE WAY, dedicated to public, 356 right to soil of, 442 901 ~.m^-- 903 INHKX. PRIVILEGE FEOM ARREST, 702 l«i PRIVILEGED COMMUNICATIONS, what arc, 181 cummuiiicationB nbHolutely privileged, 181 proceedingH in courts of justice, 181 statements by advocates, 1 82 by judges and magistrates, 183 by witn<»8s, 182 by party iu person, 183 communications privileged when not made maliciously, 184 extent of the privilege, 186 privileged charges of felony. 187 petitions to the Queen, Parliament, or officers of state, 187 statements by public officers in discharge of their duty, 188 communications from clergymen to their parish- ioners, 189 statements resjiocting clergymen to the bishop, 1 90 communications between relations, 190 communications between friends, 191 to prevent injury, 191 communications between persons having a jieciiniary interest in the matter of the communication, 192 disclosures made bond Jide in the course of an in- vestigation set on foot by the plaintiff, 193 communications between subscribers to charities, 194 communications respecting the character of servants, 193, 194 comments in excess of the privilege, 196 reckless and inconsiderate commiinications, 197 communications addressed by mistake to the wrong per- son, 186, 197 reports of trials, 197 ex parte statements and preliminary proceedings before magistrates, 198 reports of proceedings in Parliament, 199 reports of proceedings at public meetings, vestry meet- ings, &c., 200 reviews and criticisms, 201 of sermons and clergymen, 202 of the public character of public men, 203 of matters of public and national importance, 203 by one tradesman of the goods of another, 204 PRIVY COUNCIL, privilege of petitions to, 183 ;] PROCURING UNLAWFUL ACTS. -S^c Principal ; Agekt. PROFESSIONAL MEN, defamation of, 172 INDKX. 90.'} mOFITS, mesne, 388 from infringement of trade-mark, account decreed, 680 PROFITS A PRKNDRE, 281 kinds of, 283 rights of common, 283 common appendant, 283 common appurtenant, 285 common ol shack, 28.') common ;;Mr cause ihi vicinage, 28(5 common in gross, 286 rights of pasturage, 287 common of turbary, 288 common of estovers, 288 right to get minerals, 289 rights of sporting, 290 free warron, 290 rights of fishery, 291 several fishery, 291 conmion of fishery, 291 acquisition of, 298 express grant, 298 reservation, 299 implied grant or reservation, 301 revival where extinguished by unity of ownership, 308 licences, 309 prescription, 319 the Prescription Act, 322 interruption of enjoyment, 334 persons under disability, 337 lands demised for life or years, 338 custom, 340 • manorial customs, 342 tinbounders in Cornwall, 344 acquisition of, by statute, 345 allotments under Inclosure Acts, 345 transfer of, 347 extinguishment of, 350 by release, 350 by abandonment, 351 by unity of ownership, 353 by destruction of the dominant tenement, 356 by encroachment, 357 by non-performance of conditions annexed to the grant, 359 .t!«l PROJECTIONS from house on highway, 619 PROLONGATION of patent right, 569 PROMISSORY NOTE, damages for the conversion of, 512 right of property in, 536 til V 1)04 INUKX. m ' ^1 . PROPERTY, rights of, 5, 234 kindH of, 234 transfer of, 234 by marriage, 234 iniinuvables, 234 marriage before January Ist, 1883. .234 since January Ist, 1883. .235 moyables, 235 marriago boforo January 1st, 1883. .235 since January Ist, 1883. .230 fruits of the wife's labour, 236 rights of wives after a judicial sejmration, 237 after dissolution of marriage, 237 after desertion, 237 by bankruptcy, 239 onerous property, 239 leaseholds, 239 d(>alings witli tlio bankrupt, without notice, 2-12 after-acquired property, 245 annulment of adjudication, 24(> voidable transfers, 24G fraudulent transfers, 247 absence of valuation, 248 inadequacy of price, 248 transfer of possession, 249 voluntary transfers, 249 void against creditors, 249, 253 void against subsequent purchasers, 250 void against trustees in bankruptcy, 252 transfers constituting an act of bankrui)tcy, 253 transfers to trustees for creditors, 253 transfers of all a debtor's property, 253 fraudulent preferences, 253, 256 fictitious transfers, 257 injuries to, 258 slander of title, 258 in land, 5, 260. See Land ; in goods and chattels, 5, 4 16. in animals /era nattiraiy 6, Natur;k. in a ferry, 543 disturbance of, 544 in a market, 544 tolls, 545 disturbance of, 545 literary and artistic, 546. See Copyrioht in patents, 559. See Patent Eight. in trade-marks, 573. See TaAUE-MAiiKs. in offices, 581 assault in defence of possession of, 141 spring guns and man-traps, 143 PROSECUTION. See Malicious Pkosecution. PROSPECTIVE DAMAGES, generally, 80 under the Lands Clauses Acts, 762 Servitudes. See Goods and Chattels. 541. See Animals Ytsmm m INDEX. 90.i 883.. 231 J83..'i35 1883.. 235 183.. 230 iration, 237 237 t notice, 242 S 250 r, 2.52 )tcy, 253 !53 , 253 D Chattels. tMAL8 Feb^ PROSPECTUS OF COMPANY, deceitful, 739 PROTECTION ORDER, ubtaiuod by wife, 237 PROVOCATION, a mitigation of damages, 165, 210 PUBLIC AFFAIRS, criticism of, 203 PUBLIC DOCUMENTS, mandamus to give up, 588 PUBLIC DUTIES, broach of, 1 2 PUBLIC MEETING, privilege of report of, 200 disturbing, 165 PUBLIC OFFICERS, generally, 13, 125, 638 petitions to, 1 88 criticism of, 203 statements by, when privilegef', 1S3 conversion by, what is, 505 remedy by mandamus for broach of duty by, 038 when granted, 638 when there is another remedy, 040 to judicial officers, 641 to ministerial officers, 042 to overseers or clergymen to bury a pauper, 643 to surrender public documents, 044 to elect public officers, 645 to admit to public offices, 645 to restore to public offices, 646 to freehold offices, 648 offices held at will, 649 when there are visitatorial powers, 649 medical practitioners to the register, 050 conditions precedent to the issue of the writ, 050 actions for false return, 050 judicial officers, 051. See Judicial Officers. ministerial officers, 082. Sec Siiekiff; County Court Officers. general government officers, 120, 722 governors of colonies, 722 military and naval officers, 723 revenue officers, 126, 723 liability for the acts of their subordinates, 724 local government officers, 724 trustees and commissioners of public works, 724 remedy by action against, 727 exemption from personal liability, 727 injunction, 729 liability for the acts of contractors, 730 liability of the contractor, 730 indemnity of, 730 surveyors of highways and county bridges, 731 A. 3n I i i ■rt 906 'S'Wfflps^p^Bwpsr^iwrawrra^^ INDEX. PUBLIC PEEFORMANCE, disturbing, 87 infringement of copyright by, 552, 554 what is, 555 PUBLIC EIGHTS, generally, 10 no right of sea-bathing, 1 2 no right of fox-hunting, 1 2 highways, 607 creation of, 6f/7 dedication, 607 animus dedicandi, 608 who may dedicate, 611 limited, 611 in point of time, 613 highway of necessity, 613 use of, 614 by the public, 614 by adjoining owners, 614 extinction of, 614 navigable rivers, 615 right of navigation, 615 right of towing, 616 right of fishing, 610 injuries to, 616 obstructions in highways, 616 in navigable rivers, 618 other nuisances to highways, 618 from neglect of statutory duties, 623 neglect of railway companies to erect and maintain bridges over, 623 negligent management of railway gates placed across, 624 collisions in highways, 627 at soa, 628 inevitable accident, 632 compulsory pilotage, 632 with foreign ships, 634 remedies for, 634 limitation of liability, 634 removal of obstructions in highways, 636 in navigable rivers, 637 deviation, 637 injuriously affected, compensation for, 756 PUBLIC SINGER, deterred from singing by libel, 46 PUBLIC WOEKS. See Local Government Officers. PUBLIC WOESHIP, disturbing, 157 •^iM^mifMM.i'^^^m^mw!!^^ ■ 623 es to erect and 3 railway gates RS. ^^?PBWBPPT''WSP«*!^PfTOBBPiPP!lfP^ INDEX. 907 PUBLICATION of defamatory words, what is, 209 in newspapers, 211 singing libello.s songs, 212 PUECHASE, title to land b>, 2(;n title to goods and -liattels by, 449 sale in market overt, 449 of stolen goods, 451 right of restitution, 451 private sale, 452 insolvency of the purchaser, 455 void for fraud, 456 PUECH iSEE, ri, 'Lts of, after voluntary transfer, 250 from trustee, 266 insolvency of, 455 transfer of goods by, when purchase incomplete, 479 a conversion, 502 QUAEEY, disturbance of, 7 adjoining highway, 621 EABBITS, injuring crops, 132 burrows, 285 on commons, 397 property in, 541 EAILWAY COMPANIES, excessive charge by, 32 making embankment without proper culverts, 35 liability for malicious prosecution, 231 taking common lands, 378 distress damage feasant by, 401 arrest by servants of, 118, 119, 158 negligent management of stations by, 317 obligation to fence, 346 fire spreading from the railway, 373 conversion by, what is, 507 neglect to erect and maintain bridges across highways, 623 negligent management of railway gates, and crossings, 41, 316, 318, 624 See Statutory Compensation. EAILWAY CEOSSING, 316 EAILWAY STATIONS, negligent management of, 317 3 n2 i Pi 908 INDEX. EAILWAY STOCK, gift of, 449 RAILWAYS, nuisance from, 36 excavations adjoining, 30') under, 430 gates on, 41 RAINWATER. See Eaves. K '1| ^% I RATIFICATION by a principal of the acts of his agent, 97, 231 RATS, 369 REASONABLE AND PROBABLE CAUSE in actions for false imprisonment, 152 for charges of felony, 137 for malicious prosecution, 221 REASONABLE CUSTOM, 340 RECAPTION, remedy by, 517 RECRUITS, detention of, 162 RECTIFICATION of the register of trade-marks, 579 RE-ENTRY after disseisin, 406 REFUSAL, to hold manor court, 14 to deliver up securities, 32 to produce court roll, 33 in cases of conversion. See Demand and Refusal. REGISTRATION of biUs of sale, 460, A^ee Bill of Sale. of ships, 533 of books for copyright, 547 of proprietorship of copyright, 556 of designs, 559 of trade-marks, 576 what can be registered, 576 what cannot be registered, 578 effect of, 578 opposition to, 579 rectification of the register, 579 RELATIVES, communications between, when privileged, 190 possession by, 263, 266 INDEX. 900 A.L. BELEASE, extinguishment of servitudes by, 350 RELIGION of children controlled by parents, 595, 597, 598, 601 EEMAINDERMAN not a person entitled to the reversion under Prescription Act, 339 '■ REMEDY, by abatement, 71, 396 by distress, 72, 398 for injuries to person, 163 to reputation, 214, 229 to land, 385, 403 to chattels, 509 to copyright, 551 to patent, 572 to trade-mark, 580 for collisions at sea, 634 for public nuisances, 636 by removal of obstruction, 636, 637 by deviation, 637 by mandamus. See Mandamus. against county court officers, 714 against local government officers, 727 for fraud, 744 no wrong without, 72 by action, 72 suspension of, 76 joinder of plaintiffs in, 76 parties jointly interested, 77 husband and wife, 77 the damages, 78. See Damages. order for specilio delivery of chattel, 88 assessment of value, 88 wj ere all or part has been delivered x;p after action, 89 injunction, 90. See Injunction. in cases of threatened injury, 91 effect of laches in applying for, 92 effect of acquiescence, 92 REMOTENESS of damage, 40 in assaulr, and false imprisonment, 164 in defamntion, 176 REMOVAL of spurious trade-mark, 581 RENT, wrongful receipt of, 265 claim of landlord for, 697 REPAIR of waj^s, 294 of watercourses, 296 of fences, 296 by tenant in common, 424 ^^HV^fV II'k^ T IkM' ■ . >' PH^'^' 1 . .^k \i S'*> 1;! H '.H i I V I:.' \ i ;.»^^Ml■u^|p^^J,wwl'J!»J^^»JW^»w^|Ji^llm» II Jj nwtf^na ' 910 INDEX. REPETITION of slander, 179, 218 EEPLEVIN, remedy by, 515 chattels distrained under warrants of justices, 517 damages, 517 REPORTS, when privileged, 197 of trials in coui"ts of justice, 197 ex parte statements and preliminary proceedings, 198 of proceedings in parliament, 199 of proceedings at public meetings, &c., 200 REPUTATION, rights of, 4, 166. See Defamation; Malicious Pkosecution. REPUTED OWNERSHIP, what is, 483 to what goods applicable, 484 possession of the bankrupt, 484 commencement of the bankruptcy, 486 the reputation, 487 goods once owned by the bankrupt, 488 goods scM by the bankrupt, 490 rf gistered biU of sale, 492 goods rover owned by the bankrupt, 492 possession by manufacturers, workmen, and depo- sitaries, 494 possession by factors, 495 possession by trustees, 496 possession by a husband of the wife's property, 497 RESCUE, breaking in to, 383 RESERVATION of easements, 299 RETURN, falsf', to writ of mandamus, 650 of writs of execution, 706 false return, 706 of goods sued for, 790 RETURNING OFFICLR, 652 duties of the sheriif as, 684 REVENUE OFFICERS, liabilities of, 723 notice of action to, 779 REVERSIONARY INTEREST in land, 407. See Reversioner. injiL-y to, 407 in goods and chattels, 520 iih ies, 517 proceedings, Peosecution. n, and depo- »roperty, 497 INDKX. 911 REVEESIONEE, what is a, 339 rights of, against a stranger, 407 damages, 411 injunction, 412 rights of, against a tenant, 412 wastt, 412 as to trees, 414 as to doer, 41G equitable, 416 by trustees, 417 remedies for, 421 damages, 421 injunction, 421 effect of laches, 423 REVIEWS, when privileged, 201 ui sermons and clergymen, 203 of the public character of public men, 203 of matters of public and national importance, 203 by one tradesman of the goods of another, 204 REVIVAL, of extinguished servitudes, 308 REVOCATION, of licence, 310 by factor of agent's authority, 479 RIDING, carelessly, 24 over ground of another, 39 RIGHT OF WATER. See Water. RIGHT OF WAY. See Way. RIGHT TO LIGHT AND AIR. See Ligut ; Am. RIGHTS, applicable to civil status only, 3 kinds of, of personal security and liberty, 3, 138, 147 of reputation, 4 of property, 5, 235 in land, 5, 260. See Land. in movables, 6, 412. See Goods and Chattels. in animals yer-' i c , 'If! X li '. '• m u !P 016 INDEX. 8EEVITUDE8— fon/jn«rf/. acquired sorvitudos — continued. acquisition of, 208 express grant, 298 reservation, 299 distinction between reservation of land and reservation of easement, 300 implied grant or reservation, 301 rights of water, 302 rights of way, 303 way of nocossity, 303 rights of support, 304, 305 right to light, 306 revival of extinguished servitudes, 308 licences, 309 liabilities of the licensor, 313 negligent managoraontof docks and wharfs, 316 of canals, 3 1 6 of gates across tramways, 310 of railway stations, 317 prescription, 319 the Prescription Act, 322 ajiplieation of the Act, 324 rights of way, 327 rights of water, 328 right of support, 331 adjoining houses, 331 right to a fence, 331 right to light, 331 oft'ect of unity of possession, 333 enlargement of windows, 334 interruption of enjoyment, 334 persons under disability, 337 lands demised for life or years, 338 custom, 340 manorial customs, 342 tinbounders in Cornwall, 344 statute, 345 allotments under Inclosure Acts, 345 rights of navigation companies, 346 railway fences, 346 transfer of, 347 extinguishment of, 350 by release, 350 by abandonment, 351 of right of way, 352 of right to water, 352 of right to light, 353 by unity of ownership, 353 by destruction of the dominant tenement, 356 by encroachment, 357 alterations in windows, 358 by non-performance of conditions annexed to the grant, 359 of ways of necessity, 359 jfe i land and and wharfs, 316 331 possession, ndows, 334 338 the grant, INDKX. 017 SERVITUDES— coH/««ined after action, 8') SPECIFIC PERFORMANCE of fraudulent representations, 744 SPECIFICATION of letters patent, 5f)() SPEECHES. See Privilkoed Cosimunicatioxs. SPORTING, 282, 300, 309, 386 rights of, 290 free warren, 290 fishing, 291 several fishery, 291 common of fishery, 291 statutory compensation for, 750 SPRING GUNS, illegality of, 113 SPRINGS AND AVELLS. S,, Wateu ; Wells. rights to, 273, 276 SQUIB CASE, 19, 42 STABLE, nuisance from, 368, 408 STALLS, right to erect, 340 in market, 545 on highway, 620 STAMP ACT, in bills of sale cases, 465 STATIONS, 317. .SVf Railway. STATUS, civil, only regarded at law, 3 military, not the subject of rights. 3 STATl IE, creatin^'- a duty, 73 jfiving double or treble damages, 85 acquisition of conventional servitudes by, 345 allocments under Tnclosuro Acts, 345 rights of navigation companies, 346 railway fences, 34 (i STATUTK SESSIONS, 340 A- 3o i!^-^ ■ -• ifqi ppiws^ ■""■-" -^i^^fmn^' 1 ! 922 INDEX. ; -i 1 f .;■, t v.^ • : . STATUTES OP IJMITATION. Sec Limitation-. STATUTOEY COMPENSATION, •what is, 750 injuries g;iving a right to, 752 compulsory purchase of land, 752 of buildings, 752 of Minos, 753 land injuriously affected, 755 interference with easements, 755 wi':h public rights, 75G injuries not giving a right to, 757 not actionable at common law, 757 land not adjoining land taken, 758 damage to trade, 758 in case of abandonment, 759 occasioned by working the railway, 759 how it is obtained, 760 notice of the claim, 7G0 assessment of damages, 760 future damages, 762 subsequent unforeseen damages, 7G3 recovery of the amount, 764 illegal assessment, 7G5 removal by certiorari, 765 mandamus to make compensation, 766 injunction to prevent unnecessary injury, 768 to prevent misuse of land, 769 sale of superfluous land, 771 right of preemption, 771 to tenants, 7 7. "5 costs, 794 STATUTOEY EXEMPTION, from liability for injuries, .'34 nuisances from railways, .36 nuisances from canals, 37 STATUTOEY EIGHTS AND DUTIES, generally, 14 nuisances to highways from neglect of, 623 neglect of railway companies to erect and maintain bridges over, 623 negligent management of railway gates placed across, 624 STEAM EOLLEE, injunction to prevent uce of, 392 STEPPING-STONES, 613 STEPS at railway stations, 318 STOLEN GOODS, sale of, in market overt, 451 right of restitution, 451 **!T«»**lW.t>, *iiMi"i»wi»u I I 1 1 l^lW^W^«fl»WWI!^S«HLJUi lU '>HH",H«W iiiiuu nw iviaijiu Mill 7n^anaimn*^m«!^ ^^ioWTVII!'i'USipiaLI! .VW..i!iW|HBHiqpnJII«UJII|i|U«piipP^l|!^pipi| p INDEX. STONES heaped on highway, 620 STOPPAGE IN TRANSITU, 456, 471 STOEIES OF HOUSE, right of support, 433 STREAM. See Watehcourse. right to a hatcli in, 292 STREET, used as a stabki, 40» vesting in local board, 440 dedication of, 610 SUB-CONTRACTOR, 104 SUBSCRIBERS TO CHARITIES, privilege of communications between, 194 SUBSOIL, 427 SUBTERRANEAN WATER. See Underground Water. SUMMARY JURISDIOIION, 661 ousted by claim of title, 664 justices interested, 607 convictions on bye-laws, 669 drawing ut), 669 enforcing, 670 warrant of commitment, 671 execution of, after notice of appeal, 671 effect of, 672 SUNDAY, arrest by bail on, 163 execution of writs on, 685 SUPERFLUOUS LAND, sale of, 771 right of pre-emption, 771 SUPERIOR COURTS. See Judicial Officers. SUPPORT, natural right of, 277 separate floors in same building, 433 conventional right of, 3, 232 acquisition of, 304 implied grant, 304 prescrii)tion, 331 adjoining hoxises, 305, 331 injuries to, 378 negligent excavations, 278, 305, 379 right of, between owner of surface and minerals, 427 injunction to restrain disturbance of, 429 923 !! I I: 924 ;ndex. SURFACE, rights of ownet of, 426, 429 SURVEYORS, liability of, 14 of liighwaj's, 731 notice of action to, 779 of county bridges, 7.'}! SURVIVOR of joint tenants, rights, 420 SUSPENSION of remedy by action, 7(i TAX-COLLECTORS, notice of action to, 779 TELEGRAM, liboUous, 180 TELEGRAPH CARLE damaged by ship, 032 TENANT AT WILL, 411 occupation by, 203 TENANT RIGHT, 281 TENANTS, wrongfully holding premises, 143 occupation b}', 2')4 to parish officers, 265 rights of, against a stranger, 407 damages, 411 injunction, 412 liabilitios of, to reversioner, 4 1 2 waste, 412 as to trees, 414 as to deer, 410 equitable, 410 remedies for, 421 damages, 421 injunction, 421 effect of laches, 423 jo'nt and in common, 4l'3 ruinous party walls, 425 lights of the survivor, 420 ro: ."dies against each other, 420 injunction, 420 compensation tc, aider the Lands Clauses Act, 773 TENANTS IN COJifMON, of ship, 77 ]i )88escion b}', 260 indl:x. TENANTS IN COUMOT^-coufmue,/. of Innd, 42."} ruinous party walls, 42"> rights of tlin survivor, 42f) remedies ngainsc each f)tlior, 42G injunction, 42() of goods and chattels, ;j24 rights inter .le, .52o of patent right, ")7;5 TENDI'^E OF A^IENDS, 401, 784 THEATRE. Sec At Toii. THREATENED INJURY, 138 injunction in case of, 01 TIDE, unusually high, 215, 207 TIMBER, injuring shouting by cutting, 200 injunction to prevent cutting, ;591 M'aste in, 414, 417 rector cutting, 4 1 ',) remedy, 421 TIMBER YARD, access of light to, 298 TIN BDITNDERS, right of, how acquired, ;}42, 344 TITHES, 351 025 TITLE, / 73 slander of, 2o8 proof of, 201 to laud, acquisition of, 2()I by occupation, 2(J1 wluit is loss of ])ossession, 262 the Statutes of Limitation, 202 occupation by poor relations or servants, 203 by a tenant at -will, 2()3 by tenant from year to year, 204 wrongful receipt of rent, 205 possession of u coparcener, joint tenant, or tenant in common, 200 of a younger brother or relation, 200 occupation by liond fide purchasers of trust estates, 20(5 acknowledgment of title, 207 entry upon laud and continual claim, 207 disabilities, 208 concealed fraud, 20i) ecclesiastical and elecmos\'narv c(n'i)oiations, 209 " 'mw^' V-'i Ik 1 M tiiy \ 4' 926 INDEX. TITLE -£oh//hk«/. to land — continued. by doscout, 269 by purchnsG, 269 to goods, acquisition of, •14() by finding, 146 by accession, 447 by gift, 448 donatio mortis causd, 448 by purchase, 449 sale in market overt, 449 private sale, 452 by bill of sale, 456 by bill of lading, 471 by delivery of documents of title, 472 by sales and pledges by factors, 474 by vendors and purchasers, 479 by estoppel, 480 by death, 481 by recovery of judgmi-nt, 481 by seizure and sale by the sheriff, 481 TITLE DEEDS, right of property in, 535 TITLE OF BOOK, copyright in, 548, 551, 577 TOLLS, liability of landlord taking, 314 right to market, 545 TOMBSTONE, rights to, 435, 436 TORT, definition of, 1 distinction between broach of contract and, 1, 789 constituents of, 1 founded on contract, 15 accident, 17 negligence, 2u malice, 27 continuing injuries, 32 money obtained by force or extortion, 32 discharge of, 52 — 70. See Disciiaugk. justification of, 47 — 51. See JrsTUiCATioN. by infants, 121 by married women, 1 22 by lunatics, 124 by husband on wife, 124 in foreign countries, 135 by ambassadors, 136 by foreign sovereigns, 130 TOET-FEASOES, joint, 94 judgment recovered against one, 94 damages in the case of, 95 no contribution between, 96 ,i-"wtM..'iM\,yr^^'w?fjm*.'if ,, *,'«(wpf , ■ fV' Wf-'^'sKPT*^ -^^^^^^^y^ ■ ■'■'"■: A"«"-.w '-•' '" "H'^ "iWP ^' :^«ye^^Pj™"*. Ji .'.'rt'" w? m^mf^f'T*: * l'' >*'^ HW*m|?T?rT|« INDEX. TOET-FEASOES— roH///j««/. principal and agent, 96 subsequent ratification, 97 liability of tlio agent, 98 master and servant, 99 owners of carriages, 101 borrowers of carriages, 102 ship owners, 102 contractor niid snb-contractor, 103 scope of the oniployniont, 107 liability in the case of fellow-servants, 1 10 Employers' Liability Act, 110 in the case of volunteers, 115 liability of the servant, UG corporations, 117 foreign corporations, 121 infants, 121 married Avomen, 122 lunatics, 124 public officers, 12.5 rioters, damage done by, 126 persons collecting crowds, 128 owners of cattle and domestic animals, 128 trespasses from defect of fences, 129 injuries by intruding dogs, 131 injuries by rabbits ai\d pigeons, 132 keepers of fcrociouH animals, 132 the scifit/cr, 131 in foreign countries, 135 ambassadors, 130 iu actions for defamation, 217 subsequent publishers, 217 joint libellers, 218 principal and agent, 218 corporations, 218 in malicious prosecution, 231 principal and agent, 231 corporations, 231 in injuries to goods, 518 joint conversion, 51 H conversion by an agent or servant, 518 conversion by married Avomen, 519 iu cases of fraud, 7 16 principal and agent, 746 companies, 747 liability of the agent, 748 infants, 748 married women, 748 TOWING, right of, on navigable rivers, 618 T(JWING PATH, right to rei^air, 295 title to the soil of, 443 dedication of, 618 TRACTION ENGINES, 37 927 9'.>8 INDKX. TRADE, iioisomo, .*}()') componsation for (lamago to, 758. TEADK MACIIINERY inulor bill of sale, 530 TEADE MAEKS, 10 goiioral principles, 573 registration of, 570 what i-aii ho rogistored, 570 what cannot bo registered, 578 offoct of, 578 opposition to, 579 rGctification of tho register, 570 assigniucnt of, 57i) iufringeniont of, 570 remodioa for, 580 injunction, 580 account of profits, 580 removal of spurious mark, 581 TRADES UNIONS, intimidation by, 7 TRADES^LEN, defamation of, 172, 204 TRADING, rights of, 7 fair competition not actionable, 8 TRAMWAY, 205, 315 TRANSACTIONS ■with bankrupt without notice, 21 2 TRANSFER, of rights of property, 234 uy marriage, 234 immovables, 234, 235 movables, 235, 230 fruits of tho wife's labour, 23G rights of wives after a judicial separation, 237 after dissolution of marriage, 237 after desertion, 237 by bankruptcy, 05, 239 onerous property, 230 leaseholds, 230 dealings with the bankrupt Avithout notice, 242 after-acquired property, 245 annulment of adjudication, 240 voidable transfers, 240 fraudulent transfers, 247 absence of valuation, 248 inadequacy of price, 248 transfer of possession, 249 -TV.m.-.^T^_jj||r, INDKX. i)'J!) 237 0, 242 TRANSFER— c«;j/mMrr/. of 'igiits of property — continued. voitlablo trnnsfors — cnn/inued. voluntary trnnRfors, 249 void ngaiiiHt creditors, 219, 253 void against subHoquont purcluiHcrH, 250 void against trustooH in bankruptcy, 252 trunsfors constituting nu act of bankruptcy, 25.'J transfers to trustees for creditors, 2513 trunsfors of all a debtor's property, 253 fraudulent preforenios, 253, 25() fictitious transfers, 257 of rights of prop((rty in land, 201. Sec L\nd. of natural servitudes, 279 of conventional servitudes, 347. See Seuvitudes. of goods and eliattels, 44(5. Sec Uoons and Chattels. of iixturos, 529 of ships, 534 of copyright, 548. Sec CoI'YUIGHT. of patout-right, 508 licensees, 5(59 of the right to a trade mark, 579 TRAP, negligent act e(iuivalont to a, 314 tempting animals by, 509 TREBLE DAMAOE8, generally, 85 against a shcrirt" for extortion, 709 TREES. See Tim 1) Kit. grant of, 312 claim by copyholder, 343 by neighbour, 349 by landlord, 386 negligently felling, 39') ovei Hanging, 397, 445 liighway, (521 cutting, 10(5 decaying, 407 injuries to, 408 on towing path, 409 lield in common, 424 riglit to herons building in, 5 12 growing on border of highway, 614 waste as to. 414 title to, 445 in boundary fences, 445 TRESPASS, by hunting, 12, 95 by animals, 128, 398 to land, 360 abuse (jf a license, 3(51 continuing trespass, 361 justification of, 380 damages for, 385 wilful and malicious, -'580 f ■ ' !>;«) INDKX. TEESPASS— co/j//« ««/. to land — van tinned (liiinagos for — continued. in 'lwollin^;-hou80H, 38(5 injuricH to buildings, 387 digging coiils, 387 meHuo profits, 388 by latoral excavation, 130 injunction ngaiiist, 3i)() to goods find fJmttols, 11)8 in tho oxocutiou of writs, 087 breaking open outor doors, 088 inner doors, 080 TEESPASSEKS, removing, 142, 113, 381 injuries to, 311 TEIALS. See JrniciAL Puoceedixos. TEINITY HOUSE, responsibility for negligeuci', 126 TEUSTEE8, in bankruptcy, 239, 2o2 occupation by, 201 riglits of purchasers from, lifi waste by, 417 reputed ownership of goods in the possession of, 490 of public works. See Local Govkuxmknt Uii'iCEiis. indemnity of, 730 TUEBAEY, common of, 288 TUEF, cutting, 288, 343 damaye feasant, 401 TUENPIKE EOADS. Sec Hiou a-ay. UNDEEGEOUND WATEE, 276 UNITY OF OAVNEESIIir. extinction of conventional servitudes by, 353 revival of, 308 UNITY OF POSSESSION, effect of, on acquisition of right to light by prescription, 333 USEE, of rights of way, 292 uninterrupted, 324, 326 of highway, ovidunco of dedication, 007, 608, 609 by public, 014 .Jli t..^i mmf^^V9^9f^^miimrvi^,mm'4^1^^m^ ^i •'MWm* [l l ' ■(■i"S"" ^«" *i^,IFI*|l!pP,P-Ji iPfT*w-jB(i INDluX. iial VAGllANTS, urrost of, 1 ;)7 VALIDATION, iibsoiKio of, iu triiusforH ii sign of frttuJ, 248 VENDOR. ^ . , ,,„ trauHfor of goodn \>y, aftor a pvoviouH salo, -1/0 VEXATI0U8 ACTIONS, 21) VIEW, obHtnution of, 2, ',\ VITiLAGE (. IIEENS, 310 VINDICTIVE DAMAGES, gouorally, 81 VOIDABLIO TEANSFEE, 2 10, 250 VOLUNTARY TRANSFEllS, void against croditors, 2 19, 2.).'J against HubHoquont purcliasora, 2J0 against trustees in bankruptcy, 252 VOLUNTEER, ^ , ,. „ , . ^ . liability of tlio master for the negligouco of his servants m tlio case of, 115, 315 VOTER, intorforcnco with, 28 faggot, 257 / WAIVER, discharge by, 52 WALL. See Fence ; Party Wall. hold in common, 424 rights to, 443 WARRANT OF JUSTICES, arrest iu execution of, 151 arrest without, 151 reasonable and probable cause, 152 maliciously obtaining, 232 replevin of things distrained under, 517 to apprehend, 659 in indictable offences, 659 of comraitinout, 671 in indictable offences, GOO on summary jurisdiction, 001 of distress, 670 for poor rates, 670 search, 672 WARREN, 401 free, 290 •"'# ■> IMAGE EVALUATION TEST TARGET (MT-3) ^ 1.0 I.I ■^|2|8 12^ itt lii 122 £ I4£ ■2-0 IJiSi 1^ N^ 1^ PhotDgrafiiic Sciences Corporation » WBT MAM SIRtn wnsnR,N.v. i4Sib (71«) •77^4309 ^^ <«^\. '^oN ^^ ^ / 933 INDEX. WASTE, kinds of, 412 as to trees, 414 as to deer, 416 equitable, 416 by trustees, 417 ecclesiastical dilajiidations, 4 1 8 by copyholders, 420 remedies for, 421 damages, 421 injunction, 421 effect of laches, 423 WASTE LAND adjoining the seashore, title to, 438 adjoining highways, title to, 442 WATEE. See Fouling Watek. accumulated by embankment, 35, 36 nuisance from, 37 action for diversion of, 3'J spouting up in road, 44 freezing in street, 4o natural rights of, 271 in watercourses, 271 right to use the water, 271 right of di'ainage, 273, 274 rights on navigable rivers, 275 division by riparian owners, 279 in wells, 276 rights to water cattle, 292 by custom, 340 from eaves, 292. Srr Eaves. conventional rights of, 290 right to repair watercourses, 296 acquisition of, 298 by iniplied grant or reservation, 300, 302 by license, 311 by prescription, 328 extinguishment of, 351 by abandonment, 352 injuries to, 378 defilement of, 378 disturbance of permissive use of, 378 nuisances from, 368 flooding. 35, 44, 369 of mines, 369 WATEE-CLOSET, leaking, 569 nuisance fi'om, 376 WATEE COMPANY, tunnelling under road, 21 pipes affected by severe frost, 23 maintenance of fire-plugs, 35, 620 insufficient supjily of water, 74 laying pipes under highway, 620 WATEE riPES, 23, 296, 302, 309, 391, 393 :TTv* r\ ^ INDEX. 933 I WATERCOURSE, effect of dry season on, 274 what is, 323 in mining districts, 329, 370 artificial, 272, 328 nuisance from non-repair of, 3G 1 obstruction to, 398 held in common, 424 excavating under, 429 WAY, right of, 292, 357, 409 incidents of, 29"! deviation extra viam, 294 repair of way, 294 acquisition of, 298 implied gi-ant or reservation, 301, 303 way of necessity, 303 licenses, 309 liabilities of the licensor, 313 negligent management of docks and wharfs, 3 1 G of canals, 316 of gates across tramways, 316 of railway stations, 317 proscription, 319 tlio Prescription Act, 327 interruption of oujoymcut, 334 persons under disability, 337 land demised for life or years, 338 abandonment of, 352 extinguishment of ways of necossitj^ 359 injimction to prevent injury to, 395 title to the soil of private, 442 dedicated to tlie public, 356 WAY OF NECESSITY, creation of, 303 extinguishment of, 350, 359 highway of necessity, 013 WAYS, right to soil of private, 442 WEIR, 271, 351, 398, 405, 637 WELLS, sinking, 276 injuring right of support by, 278, 279 by custom, 340 permis. ivo use of, 303 unfenced, 429 right to water in, 276 WHALE, tenants in common of, 525 rights of property in, 542 WHARFS, rights to, 276, 443, 618 negligent management of, 315 when market overt, 450 ^! 1 3? im 934 INDEX. WHISTLING, ovidence of nogligonce by not, 625 WIFE. See Hushand. electing not to sue for tort committed against her, 78 torts committed by, 122, 123 suing husband for tort, 1 24 rights of property of, 234 transfer of, by marriage, 234 immovables, 234, 235 movables, 235, 23G fruits of her labour, 236 after a judicial Reparation, 237 after dissolution of marriage, 237 maintenance by husband, 238 after desertion, 237 reputed ownership of her goods in the husband's possession, 497 conversion of goods by, 519 personal injuries to, 590 enticing away and harbouring, 591 adultery, 591 the damages, 593 application of, 594 fraud by, 748 WILD FOWL, disturbance of, 6 WINDING-UP PETITION, malicious presentation of, 233 WINDMILL, access of air to, 298 adjoining highway, 621 WINDOWS. See Light. payment of rent for, 333 enlargement of , 334, 3.'= 3 blocking up, 353, 395 WITNESS, statements by, privileged, 4, 73, 182, 183 WOOD. See Timber. cutting, 288, 416 WOEDS, innuendo of defamatory, 206 — 208 slander of title, 258 WOEKMEN, under Employers' Liability Act, 112 reputed ownership of goods in the possession of, 494 WOEKS, 112 WOUNDING, 139 TNDEX. d'.Vj band's possession, WRECK, obstructing navigabb river, G18 WEIT OF FI. FA. See Siieuii^f. title to goods sold under, 481 in ease of bankruptcy, 482 in royal imlace, C8G WRITS, arrest under, 161 execution of, 684 on Sundays, 685 priority of, 685 bankruptcy, 686 mode of executing, 687 breaking open doors, G89 illegality of, 690 unreasonable delay in, 690 seizure of goods, 691 of privileged goods, 691, 692 of goods of the wrong person, 692 interpleader, 694 landlord's claim for rent, 697 sale, 481, 698 of the goods of bankrupt traders, 482, 699 arrest, 700 of the wrong person, 701 of the right person under a wrong name, 701 incurability of wrongful, 702 of privileged person, 702 payment of the debt, 703 escape, 704 under void or irregular jirocess, 705 return of, 706 false return, 706 WRONG, without damage, 38 none without a remedy, 72 WRONG-DOERS. See Toht-feasors. Yy-RONGEUL ACT, 1 responsibility for consequences of, 40 WRONGFUL DISTRESS, 33 TEW TREE, cattle eating, 363, 390 ;i