NEW LAW^ WORKS PUBLISHED BY STEVENS AND HAYNES, BELL YARD, TEMPLE BAE, LONDON. ♦ * For M n^^^llj^jQ^Md^^^^orks^e_ Cat i Intended for I iNTBODUCTIOli* Chap. I. Of the differe- thcKuUs, II Of SimvU- I whiil) «i i III. Of Contracts Tenant. IV. Of Contracts inchulinc V. Of Mercantil chaui.'i% I'l VI. Of some pari aV)ility of i VII. Of Contn itr^i THE a And the llulc tering Tr with Noti Liucolu's f. UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY With SHORT MARKlAl COGHLAN, the Juridi( GRIFFITh THE SUPKEME COURT OF J 1873 A^^-D-187 1IRE With the Rules, Orders, -.md i ..hIm thereunder. Edited, with ■,., and forming a Complete Book of Practice under thi- >1 DowxEs Gkiffith, of the 1 nner Temple, Banister-at- Law ; la' General for the Colony of tlie Cape of Good Hope ; Author of " Gi ""We hcartilv fonL'r.t\;li;i.t Mr. GnfTiili \\\,oil tbe prO'luction of a Vftry inteVi: edition of ti. Ill one t/uck vol., ^m, price 'l\s. doth, ENGLISH Cr.xqn^TTUTIONAL HISTORV Designed as a Text Book fci- S- j of Lincoln's Inn, Barristei .^.-i...... ...^i and Tancred Student in Coinmon Law, thers. By T. P. Taswei.l-L.\n .0 Yinerian Scholar in the Univci steat:ns and haynes' new law publications. In 2 volt., roiful 8w), price 70.v. cloth Idkrcd. THE LAW RELATING TO SHIPMASTERS AND SEA- liiiii Circuit; "■■ -■■>•••■• .....,L.., uMi^ua ol" the Court iie Hundred of Salfcird. AL TREATISE ON THE LAW RELATING .<; OF llAIIWAV. Ca-. !>.,. k. 11 Al; :.m ,;, TkaMWAV, B|!IIm;K. I'tKll, Hv i. H. Hai.kiiuk •f ••The Law of Usages In One Vn/utn«, Sfo, frtuf liiwi. c/yFT \TTvn TO Pri3LIC WORSHIP; iitatioii, ftiid tla- Means of securing wiili \,,t,s >nid KVfcivnocs, Tlitj ; The various Acts .1 witli the Tiit'sont ; rtiid Ui«- liijuiit ijtjiis, AdvtTtisenienta, and other Tity. Hy Skwakd Buke, LL.D., of the Inner uri-,lc.T-;il-J,;i\V, Jn.st rmiht, in Sm, /i/io I2s., clulh, THE L\W OE ETYTrRES. \L MiiLDiNns Ar-r, I'S".*;, in- lly bringing the law down to vLi. liK..ss.N, M.A. Kdio. and Oxoii. and B.C.L. Uxon., lut-Law. THE ELEMENTS OF ROMAN LAW. In 8itf, price 10*. cAVA, rcwn^v T^inF^T ny THE Tv^TITUTES OF GAIUS ■ d in ParuHt'l Cohimns, also Cliro- ,••,*'• ''""■■■•il\ "■''"''■' '"" ••'"•'•"'••" ' " ,-lilyduiiu. "•: LHi. 1,011; iiy recommend it as a first book ne'8 work on the l»rinciplefi of Conveyancing. It >t..ji.is , ..u.^ ......n. ..,, ^viiujj cuuvc,/ uiufiH. — Jrith law Timet. A TllEATISE LA^Y OF DAMAGES. A TREATISE -V- ON THE LAW OV 1)A:\[AGES: CH»MrRl"«r.ii tkhi-lk. k*i., bakkisterat-iaw, rtLL«>W y>V TRIMTY IIAI.L, rAMBRIlKJE. LONDON : STEVENS AM> llAVXES, lab Publt&brrs, BKLL YARD, TEMPI. K I'.AH. LONDON : ERADBUBT, EVANS, AND CO., PRINTERS, -WHITKFBTARS. £ PREFACE TO THE SECOND EDITION, In preparing the present Edition for the press, the Editor has been anxious to retain as far as possible the original form of the work, and to enable the reader to distinguish what parts of it have Mr. Mayne's authority. The additions and alterations introduced have, therefore, with a few trifling exceptions, been placed Avithin brackets. It has been thought advisable to omit the portion of the work devoted to what are commonly called Compensatiou cases. They do not fall strictly within the scope of the Treatise, and the decisions upon the subject have of late years multiplied to such an extent that they could not be satisfactorily discussed in the limited space at command. The reader is therefore referred to works specially devoted to their consideration. A short chapter has been added on the assess- ment of damages under Lord Cairns' Act, 21 & 22 Vict. c. 27. Many Scotch and Irish cases have been cited, and reference has been made to American decisions since 1856, upon the principle and within the limits laid down by the Author in his preface to the original edition. L. S. ^ Inner Temple, ^^ August, 1872. ^^ 783341 PREFACE TO THE FIRST EDITION. It can hardly be necessary to apologise for the appearance of a treatise on Damages. The subject is certainly an important, and not a very easy one. The materials are scattered over all our reports, and many of our statutes. Yet, with the exception of the obsolete work by Serjeant Sayer, no English writer has ever thought of collecting them. The American treatise, by Professor Sedgwick, has gone far to supply this want. The great merits of his work are too well known to need any commendation from me. Its ability and research will be best appreciated by those who have studied it as minutely as I have done, and I gladly acknowledge the assistance which it has afforded me. It appeared to me, however, that there was still room for an English work upon the same subject. Many topics of im- portance to the English practitioner are omitted by Mr. Sedgwick, partly through design, partly on account of the differences that have sprung up between the laws of the two countries. He has, also, naturally given a prominence to American cases, which is hardly satisfactory to us, oppressed as we are by the multitude of our own reports, and unwilling to extend our researches into unknown regions. Since the last edition of his treatise, our own Courts too have been remarkably prolific in decisions upon this branch of the law, and have supplied materials which well deserve a fresh attempt at classification. I have tried to collect every English case which bore upon the law of Damages ; and have only resorted to American decisions, where none of our own were in point. One of my great difficulties has been to distinguish between the right to recover, and the amount to be recovered. The line which divides these two branches of law sometimes vanishes entirely. The vill PREFACE. right to sue at all sometimes depends upon the existence of the very circumstances which determine the measure of damages. For in- stance, where the wrong complained of affects the public generally, the particular loss sustained by the plaintiff is the fact which at once gives him a right of action, and gauges the compensation he is to obtain. So in actions against executors, the possibility of obtain- ing any real satisfaction may depend entirely upon the form in which they may be sued, whether in their representative or personal character. In many cases of torts, no measure of damages can be stated at all ; and the only way of approximating to such a measure, is by ascertaining what evidence could be adduced in support of the issue. All this has made many parts of the present work resemble a treatise on the law of Nisi Prius, rather than one exclusively appropriated to Damages. Wherever such divergences appear, I must only beg the reader to attribute them to a difiiculty which I have done my best to surmount. That many errors of a much graver nature, both omissions and mistakes will be discovered, I cannot but expect. For these I must only ask the indulgence of the critic. Those who are best acquainted with the mazes of our law, will be the most ready to pardon me for going astray. JOHN D. MAYNE. 5, E.ssEx Court, Temple, Mmj, 1856. CONTENTS. CHAPTER I. Cases ill wliicli Damages may be recovered . PAGE 1 CHAPTER II. 1. Nominal Damages . . 4 2. 'General Principles in Actions on Contracts . . . . 7 on Torts .... 23 3. Remoteness of Damage . . 26 Loss of Profits ... 27 Costs of Actions . . . 43 4. Period for which Damages may be assessed. 5. Mitigation of Damages . Set-off .... Mutual Credit . Equitable Set-off . CHAPTER III. 1. Damages limited hj amount laid in the declaration . . 96 2. Liquidated Damages and Penalty .... 58 65 75 87 93 98 1. At Common Law 2. As Damages. CHAPTER IV. INTEREST. . . 105 I 3. By Statute . 108 . Ill I. Contracts for Sale of Chattels. 1. Actions for price of goods received . . . .114 2. Actions for not accepting goods . . . . . 116 Actions for not accepting stock or shares . . .119 3. Actions for not delivering goods . . . . . 120 Actions for not replacing stock 123 4. Actions on Warrantv . .129 CHAPTER V. CONTRACTS OF SALE. II. Contracts for Sale of Land. 1. Actions for Refusal to Con- vey 135 2. Actions for not accepting Conveyance . . . . 140 3. Actions on Covenant for Title 142 Actions on Covenant for Quiet Enjoyment . . . 144 Actions on Covenant for Further Assurance . . 149 Actions on Covenant against Encumbrances . . . 149 Actions on Covenant to Re- new 151 CONTENTS. 1. Work anil Luljuur CHAPTEll VI. . 152 I 2. Coulmcts ol" Ihiiiig and Service PAGE . 165 Del)t CUAlTKIl VII. 101 CHAPTER VIII. Bilk of Exuluuige and Promissory Notes . 171 CHAPTER IX. CONTRACTS RKL.VTINO TO THK TEXUKK OK LAND. 1. Actions for Kent Use and Occui>ation Apportionment liolding Over 2. Actions on Covenant to re ])air 181 ' 4. Covenant to pay Renewal 182 i Fine ^ i»z I rine . 184 j 5. Covenant to Insure , 187 1 6. Covenant to ]iay Rates, I 7. Covenant to deliver up Pos 189 I session pair . . ... i^oj ] 3. Actions on Covenant to Luild 198 , 8. Covenant not to Assign Actions on Covenant to mine 199 j 200 200 204 205 205 CHAPTER X. CARRIKUS. I. Actions liy Carriers. 1. For Freight. . . -207 2. For Breach of Contract to supply Cargo . • • ^'1 II. Actions against Carriers. 1. For Breach of Contract to Carry . . . .217 2. For Loss or Injury to Goods 220 CHAPTER XI. CONTRACTS OF SURETYSHIP. I. Guaranties. 1. Actions by Principal Credi- tor against Surety. . . 233 2. Actions hy Surety against Principal Debtor . . 244 3. Actions By Surety against Co-surety . . . • 248 II. Policies of Insurance. 1. Life Insurance . . . 2.50 2. Fire Insurance . . . 251 3. Marine Insurance . . 25H III. General Average . . 269 CONTENTS. XI CHAPTER XII. l'A(JE 1. Ejectment . . . .278 2. Writ ol' dower mule nihil habet 27!) 3. Quare Inipedit 4. Action of Account I' AGE . 281 . 281 CHArTEU Xill. 1. Trover. . 284 4. Replevin . . . 318 2. Detinue . . . 307 5. Illegal Distress . . 321 3. Trespass to Goods . 308 1. Injury to Land 2. Mesne Profits CHAPTER XIV. 330 337 3. Injury to Easements 341 1. Malicious Prosecution . . 2. False Iniprisounicnt and Assault .... 349 3. Personal Injury caused by Negligence . . . . 351 4. Actions against Slierifi' . 352 5. Actions against Attorney . 359 CHAPTER XV . . 345 6. Actions against Witness . 3r)2 7. Defamation . . . 3(J3 8. Breach of Promise of JMar- riage 375 9. Seduction . . . .377 10. Adultery . . . . 380 CHAPTER XVI. 1. Actions by Executors . . 388 Actions against Executors . 394 2. By Trustees in Bankruptcy . 406 3. By Principal against Agent . 411 CHAPTER XVII. Pleading Special Damage 417 CHAPTER XVIII. ASSESSMENT OF DAMAGES. I. Actions against a single Defendant. 1. Judgment by Confession . 424 Reference to"^ the Master . 424 Writ of Encpiiry . . . 425 2. Judgment by Default . .427 3. Judgment on Demurrer . 428 4. Several Counts on one Cause of Action . . . .429 5. Several Claims, where some are bad . . . . . 431 6. Misjoinder of Counts . . 434 xu CONTENTS. CHAPTER XYlll.— (continued). PAGE II. Actions against several Defendants. 1. Where there is a Verdict against all . . . . 434 2. Where some pay Money into Court . . . .436 3. AVhen Judgment goes by Default, against all or some 437 4. When they plead severally . 439 5. When some demur . . . 439 PAGE 6. When there is a Verdict for some 439 III. When greater Dam- ages are given than are claimed . • 440 IV. Double and Treble Damages . . . 440 V. When an omission by the Principal Jury may be supplied by a Writ of Inquiry . 441 CHAPTER XIX. POWER OF THE COURT OR JUDGE IN REGARD TO DAMAGES. 1. Right to Begin . . .444 2. Directing the Jury . . . 444 3. Amending the Postea . . 446 4. Increasing or Abridging the Damages . . . . 452 5. New Trial . . . .454 CHAPTER XX. Assessment of Damages under the Chancery Amendment Act, 1858 463 ERRATA AND ADDENDA. Page 34. Note (k), add, "See also SJiarp v. Powell, L. R. 7 C. P. 253, 41 L J. C. P. 95 ; Romney Marsh v. Trinity House, L. R. 7 Ex. 247 ; 41 L. J. Ex. 100." Page 85. Note fe), add, "affirmed in Ex. Ch. L. R. 7 Ex. 263." Page 126. Line 3, for " licld," read " approved the decision of the Court of Common Picas, M. T. 7 Geo. I." Page 225. Note (&), add, "The Act does not apply to the case of a passenger carried partly by land and partly by sea, L. ct S. W. Ry. Co. v. James, Weekly Notes, 20 July, 1872." Page 255. Note (*•), add, " Mar tinea u v. K itching, L. R. 7 Q. B. 336." Page 264. Note (n), add, " And see as to the valuation of freight in a valued policy primd facie referring to a full cargo, Denoon v. Home tfc Colonial As- surance Co., L. R. 7 C. P. 341 ; 41 L. J. C. P. 162." TABLE OF CASES. Aakon v. Alexander, 436 Abbott V. MacFie, 38 Abbott V. Parfitt, 399 Ackermann v. Ehrensperger, 172, 234 Adams v. Adams and Colter, 384 Adams v. Broughton, 305, 306 Adams v. Kelly, 42 Adams v. Lancashire & Yorkshire Ry. Co., 39 Adams v. Midland By. Co., 462 Addison v. Overend, 298 African Steam Ship Co. v. Swanzy, 2" 8 Agra& Masterman's Bank v. Leighton, 94 Ainslie v. Wilson, 247 Aireton v. Davis, 355 Aitcheson v. Madock, 360 Alder i;. Keighley, 69, 410 Alers V. Tobin, 222 Ale worth v. Roberts, 281 Alexander v. Gardner, 116 Alfred v. Farlow, 433 Allen V. Allen, 384 Allen V. Kemble, 174, 175 Allen V. Sugrue, 264 Allsop V. AUsop, 372 Allum V. Boultbee, 462 Alsager v. Close, 294 Alsager v. Currie, 89, 91 Althoif t'. Wolfe, 393 Alton V. Midland Ry. Co., 389 Amalia (The), 225, 311 Amor V. Fearon, 156 Anderson v, Buckton, 335 Anderson v. Chester & Holyhead Ry. Co., 228 Anderson v. Passman, 308 Anderson v. Wallis, 259 Andrew v. Hancock, 188, 189 Andrews v. Askey, 378 Angier v. Taunton Paper Co., 300 Anonymous, 34, 441, 456 Anonymous v. Phillips, 462 Anscomb v. Shore, 327 Ansett V. Marshall, 36 Anthony v. Ilaney, 64 Apothecaries' Co. v. Burt, 3 Appleby v. Meyers, 153 Apps V. Day, 455 Archard v. Horner, 159 Archer v. Williams, 29 Arden v. Goodacre, 68, 74, 355, 358 Armory v. Delamirie, 221, 293 Armsworth v. S. E. Ry. Co., 351, 393 Armytage v. Haley, 455 Arnold v. Bainbrigge, 81 Arnold v. Suffolk Bank, 125 Amott V. Redfern, 109 Ash I'. Pouppeville, 161 Ashby V. Ashby, 84, 398, 399, 406 Ashby V. White, 5 Ashley v. Harrison, 32, 369, 372, 421 Ashtown, Ld. v. White, 101 Aslin V. Parkin, 338 Aspdin V. Austin, 156 Astley V. Gurney, 89 Astley V. Weldon, 100, 104 Atchinson v. Baker, 3/7 Atkins V. Humphrey, 400 Atkinson v. Jones, 109 Atkinson v. Lord Braybrooke, 110 Atkinson v. Nesbitt, 319 Atkinson v. Stephens, 223, 274 Atkyns v. Kinnier, 103 Attack V. Bramwell, 326 TABLE OF CASES. Atterbury v. Jarvie, 93 Attersoll v. Stevens, 333 Attorney-General v. Hatton, 411 Attorney-General v. Hull, 362 Attwood V. Taylor, 106, 113 AttwooU V. Attwooll, 76 Augustien r. Cballis, 355 Auriol V. Thomas, 178 Austen v. Willward, 436 Austerbury v. Morgan, 169 Austin V. Hilliers, 452 Austin V. Manchester Ry. Co., 228 Avery v. Bowden, 1 1 7 Ayre v. Craven, 370 Azemar r, Casella, 129 B.iBBAGE V. Babbage and Manning, 383 Baber v. Harris, 1 43 Backhouse v. Bonomi, 7, 60 Backhouse v. Ripley, 273 B iddeley v. Mortlock, 377 Bahia& San Francisco Ry. Co., Re, 130 Bailey «. Finch, 85 Bailey v. Johnson, 85 Baillie v. Kell, 71, 156, 159 Bain v. Case, 110 Bain v. Fothergill, 138 Bainbridge v. Neilson, 264 Baker v. Bache, 63 Baker v. Brown, 452 Baker v. Cart w right, 377 Baker v. Davis, 188 Baker -jj. Dewey, 148 Baker v. Garratt, 353, 354 Baldwyn and Girrie's Case, 448, 453 Bales V. Wingfield, 355, 356 Bamfield v. Massey, 75, 379 Bamford v. Harris, 71 Banbury Union v. Robinson, 425, 426 Eankart v. Houghton, 63 Bann v. Dalzell, 110 Bannerman v. "White, 129 Bannister v. Hyde, 317 Barber v. Backhouse, 176 Barber v. Brown, 184, 340 Barber v. Lesiter, 34, 363 Barclay v. Gooch, 245, 246 Bardwell v. Lydall, 235 Baring v. Corrie, 86 Barker v. Braham, 79 Barker v. Dixie, 455, 457 Barker r. Green, 356 Barker v. Windle, 208 Baikly v. Keinpstow, 237 Barnard v. Gostling, 436 Barnes v. Prudlin, 420 Barnes v. Ward, 38 Barnett v. Earl of Guildford. 338 Barratt v. Collins, 312, 350 Barrett v. Long, 363 Barrett i\ Partington, 424 Barrow v. Arnaud, 117, 120, 304, 309 Barrow's ease, 113 Barry v. Rush, 399 Bartholomew v. Markwick, 117 Bartlett v. Holmes, 67 Barton v. Glover, 104, 170 Basten v. Butter, 71, 154 Batard v. Hawes, 248, 249 Bate V. Hill, 379 Bate V. Pane, 454 Bateman, ex parte, 203, 412 Bateman w. Lyall, 371 Bates V. Hudson, 154 Batson v. Donovan, 231 Battishill v. Reed, 63, 334 Baxendale v. G. E. Ry. Co.. 228, 230 Baxendale v. G. W. Ry. Co., 207 Baxendale v. London & S. W. Ry. Co., 207 Baxter v. Bradbui-y, 144 Baxter r. Taylor, 331 Bayliss r. Fisher, 311 Bealey v. Stuart, 157 Bt-ardmore v. Carrington, 459 Beaumont v. Greathead, 7, 162 Becher v. G. E. Ry. Co. 232 Beckham v. Drake, 103, 159, 406, 407 Bedford v. M'Kowl, 378 Bedingfield v, Onslow, 331 Beech v. Jones, 47 Beechey v. Brown, 376 Beer v. Beer, 186 Beeston v. CoUyer, 158, 160 Behrens v. G. N. Ry. Co., 231 Belcher v. Lloyd, 91. Belcher v. M'Intosh, 194, 195 Belfast & Ballymena Ry. Co. v. Keys, 231 Bell V. Bell and Marq. of Anglesey, 381 Bell V. Carey, 77, 90 Bell V. Cunningham, 415 Bell V. Free, 106 Bell V. Hayden, 191 TABLE OF CASES. XV Bell V. MMland Ry. Co., 2C, 343 Bell r. Parke, 374 Bell V. Puller, 215 Bell v. Smith, 275 Belsbaw v. Bush, 96 Bench r. Merrick, 376, 377 Bennett v. Allcott, 336, 459 Bennett v. Bayes, 327 Bennett v. Bennett, 372 Benson ?'. Chapman, 259 Benson ?'. Duncan, 222 Benson r. Schneider, 214 Bentloy v. Fleming, 448 Bernstein v. Baxendale, 226, 227 Berrington v. Phillips, 113 Berton v. Lawrence, 359 Berry v. Da Costa, 376, 378 Betteley v. Stanisly, 203 Betts V. Burch, 102, 104 Betts V. De Vitre, 27 Betts V. Gallais, 465 Be van, ex parte, 106 Bickerdike V. Bollman, 179 Bickford v. Page, 143 Bieten v. Burridge, 346 Biggins V. Goode, 325 Bignell v. Clark, 327 Billingay v. Billiugay & Thomas, 387 Binks V. S. Yorkshire Ry. Co., 38 Birch V. Depeyster, 77 Bird V. M'Gahey, 153 Bird V. Randall, 380 Birkett v. Willan, 226 Bishop V. Church, 83 Bittleston v. Timmis, 88, 90 Black t^. Baxendale, 219 Blackburn v. Smith, 140 Blagrave v. Bristol Water Works Cj , 41 Blair v. Street, 447 Blake ^'. Lawrence, 173 Blake v. Midland Ry. Co. 392, 446 Blake v. Phinn, 140 Blakeley Ordnance Co., Stocken's case, 1 1 3 Blakesley v. Smallwood, 84 Bknd V. Bland, 458 Blaney v. Hendricks, 108, 110 Blatchford v. Cole, 188 Bleaden v. Charles, 47 Bleaden v. Rapallo, 430 Blofeld V. Payne, 5 Blogg V. Johnson, 109, 110 Bloxam v. Hubbard, 298 Blyth V. Carpenter, 124 Blyth V. Smith, 54 Blyth V. Topham, 38 Boast V. Firth, 156 Bodily V. Bellamy, 111 Bodley v. Reynolds, 296, 297 Bois V. Bois, 433 Bouafous V. Walker, 357 Bonham v. Sturton, 452 Bonney v. Seely, 247 Bonomi v. Backhouse, 7, 63 Boodle V. Cambell, 148, 188 Boorman v. Nash, 116 Booth V. Clive, 457 Booth V. Coulton, 110 Bornmanu v. Tooke, 69, 211 Borries v. Hutchinson, 122 Burrodaile v. Brunton, 132 Bottomley v. Brooke, 85 Boulter v. Ford, 437 Boulter v. Peplow, 250 Boulton V. Reynolds, 327 Bousfield V. Lawford, 93 Bowdell V. Parsons, 121 Bowden v. Home, 428 Bower v. Hill, 342 Bowers v. Nixon, 449, 450 Boyce v. Bayliffe, 30, 35 Boyce v. Douglass, 440 Boyd V. Mangles, 92 Boyle V. Brandon, 378 Boys V. Ancell, 103 Boys V. Pink, 231 Bracegirdle v. Bailey, 374 Bracegirdle v. Orford, 23, 336 Bradley v. Millar, 96 Bradshaw t'. Bennett, 109 Brady v. Oastler, 120 Braithwaite v. Coleman, 80 Bramley v. Chesterton, 55 Brandford v. Freeman, 445 Brandt v. Bowlby, 221 Brandt v. Foster, 144, 148 Brangwin v. Peri'ot, 169 Brasfield v. Lee, 63 Brass v. Maitland, 216 Bretherton v. Wood, 439 Brewer v. Dew, 311 Brewer v. Jackson, 460 Brice v. Wilson, 400 XVI TABLE OF CASES. Bridge v. Wain, 132 Bridges v. G. Junction Ry., 37 Bridges r. Horner, 433 Brierly v. Kendall. 299, 312 Briggs V. Qi-einfeild, 438 Brighton Arcade Go. v. Dowling, 87 Brinckerhoffv. Phelps, 137 Brine v. Bazalgette, 365 Brinsmead r. Harrison, 306, 440 Bristol (Dean & Chapter) v. Jones, 197 Bristowe v. Needham, 85 British Culumbia Saw Mill Co. v. Nettle- ship, 8, 10, 18 Broadhurst, ex parte, 234 Bromley v. Wallace, 74, 383 Brook V. Louisiana Ins. Co., 264 Brooke v. Bridges, 339 Brooke v. Clarke, 433 Brooke v. Stone, 204 Broome v. Rice, 442 Brotherston v. Barber, 264 Broughton's case, 245 Brown i'. Allen, 435 Brown v. Barwick, 284 Brown v. Glenn, 317, 326 Brown v. Goodwin, 379 Brown v. Haynes, 300 Brown v. Murray, 362 Brown v. Price, 204 Brown v. Royal Insurance Soc, 251 Brown v. Seymour, 452 Brown v. Somerset & Dorset Ry. Co. , 5 Brown v. Stapyleton, 270 Brown v, Tibbits, 77, 81 Brown v. Wootton, 305, 440 Browne v. Amyot, 186 Browning 'y. Newman, 419 Broxham v. WagstafFe, 159 Bruce v. Hunter, 106 Bruce v. Jones, 264 Bruce v. Rawlins, 453, 458 Brunsden's case, 441 Brunsdon r. Austin, 303 Brunswick (Duke of) v. Harmer, 367 Brunswick v. Slowman, 316 Brunt V. Midland Ry. Co., 227 Bryan v. Clay, 397 Buchanan v. Findlay, 21, 90 Buckland v. Johnson, 305 Buckle V. Bewes, 359, 441 Buckle V. Knoop, 209, 214 Buckley v. Dawson, 137 Buckley v. Pirk, 401 Bullock V. Lloyd, 237 Bulraan t\ Birkett, 81 Bumpsteu's case, 441 Bunbury v. Hewson, 397, 398 Bunny v. Hopkinson, 147 Burdett v. Caiman, 429 Burdett v. Withers, 195 Burdon v. Webb, 360 Surges V. Nightingale, 455 Burgess v. Merrill, 438 Burn V. Morris, 74 Burnett v. Lynch, 241 Burrough v. Moss, 83 Burrows v. March Gas Co., 43 Burton v. Great Northern Ry., 156 Burton v. Le Gros, 315 Burton v. Pinkerton, 31 Bush V. Caufield, 125 Bute V. Thompson, 182 Butler V. Basing, 221 Butler V. Knight, 360 Buttr. G. W. Ry. Co., 228 Butterfield v. Forrester, 36 Buxton V. Cornish, 152 Byne v. Moore, 346 Byrne v. Mercantile Insurance Co., 267 Caffrey v. Darby, 412 Cahillv. Dawson, 41, 202, 414 Cahill V. London & N. W. Ry. Co., 2ni Calcraft v. Lord Harborough, 74, 382 385 Callwell v. Callwell and Kennedy, 387 Calton V. Bragg, 108, 109 Cambrian Steam Packet Co., Ex parte, 12 Cambridge v. Anderton, 257 Cameron v. Smith, 107, 171, 456 Cameron v. Wynch, 298 Camfield v. Bird, 363 Campbell v. Lewis, 431 Campbell v. Loader, 338 Campbell v. Thompson, 222 Cannan v. Reynolds, 456 Capper v. Forster, 209, 210 Cardozo v. Hardy, 168 Carmichael v. Waterford and Limerick Ry. Co., 24 Carnes r. Nesbitt, 103 Carpenter v. Wall, 380 TABLE OF CASES. XVU Can- V. Edwards, 1 1 Carr r. Lancashire Ry. Co., 228 Carr v. Roberts, 239 Carter v. Carter, 189 Carutbei's v . Graham, 425 Case IK Davidson, 260 Castelli v. Boddington, 76, 78 Caswell y. Coare, 129, 130, 132 Caswell V. Wendell, 147 Cattley v. Arnold, 186 Catton V. Wyld, 464, 465 Cavendish v. Geaves, 94 Cawdor v. Lewis, 95, 340 Chad wick v. Trower, 431 Chalie v. Duke of York, IDS, 110 Chalmers v. Shackell, 373 Chamberlain v. Williamson, 390 Chambers v. Caulfield, 381, 460 Chandler v. Doulton, 322 Chandler v. Parkes, 438 Chapel V. Hickes, 71, 154 Chapman v. Benson, 259 Chapman v. Dawson, 445 Charles v. Altin, 96, 202, 413 Charlton v. Driver, 200 Charlton v. Watton, 373 Charrington v. Laing, 103 Chesterman v. Lamb, 132 Cheveley v. Morris, 97, 440, 449 Chilton V. Carrington, 308, 433 Chilvers v. Greaves, 457 Chinery v. Viall, 300 Chinn v. Morris, 75 Chinnock v. Marchioness of Ely, 140, 465 Chippendall «;. Tomlinson, 410, 411 Christy v. Row, 208, 211 Churcher v. Stringer, 108 Churchward v. The Queen, 157 Clare v. Maynard, 130, 133 Clarence (The), 310 Clark, ex parte, 158 Clark V. Cort, 94 Clark V. Nicholson, 289, 318 Clark V. Newsam, 24, 312, 335, 351, 435 Clark V. Pinney, 125 Clarke v. Clarke, 387 Clarke v. Fell, 80 Clarke v. Holford, 292, 294, 309 Clarke v. Roe, 431 Clarke V. Seton, 1G9 Clarke v. Tipping, 404 Clegg V. Dearden, 59, 334 Clement v. Lewis, 442 Cleworth v. Pickford, 71 Clifford, Lord v. Watts, 182 Clifton V. Hooper, 355, 3 56 Clough V. Bond, 404 Clow V. Brogden, 194 CIulow, ex parte, 186 Cobb V. Carpenter, 184 Cochrane v. Green, 94 Cock V. Ravie, 244 Cockburn v. Alexander, 209, 210, 212 Cocke V. Jennor, 435, 437, 440 Cockerell v. Van Diemen's Land Co., 122 Coggs V. Bernard, 229 Colev. Meek, 213 Cole V. Sims, 104 Coles V. Bristowe, 119 Collard v. South Eastern Ry. Co., 15, 220 CoUen V. Wright, 48, 49 Collet's Case, 284 Colley V. Streeten, 192 Collinge v. Heywood, 236, 237 Collins V. Cave, 34, 41 Collins V. Collins, 77 Collins V. Crouch, 403 Collins V. Jones, 89 Collins V. Middle Level Commissioners, 43 Collins V. Martin, 176 Collins V. Price, 159 Collins r. Rybot, 425 Columbian Insurance Co. v. Ashby, 274 Columbus (The), 310 Compere (Lee) v. Hicks, 338, 431 Comyn v, Comyn and Humphreys, 381 Concanen v. Lethbridge, 353 Connop V. Levy, 74 Connor v. Bentley, 319 Cook V. Beal, 452, 453 Cook V. Field, 364 Cook V. Harris, 337 Cook V. Hartle, 74, 293 Cooke V. Hopewell, 164 Coombe v. Sansom, 294, 302 Cooper V. Shepheid, 304, 305 Cooper V. Waldegrave, 174 Coppin V. Craig, 86 XVlll TABLE OF CASES. Coppin V. Walker, 86 Corner v. Shew, 398, 399, 400, 434 Cornforth v. Rivett, 80 CornisL v. Cleife, 194 Cornwall v. Rioliardson, 348, 365 Cort V. Ambergate Ry. Co., 118 Cortelyou v. Lansing, 286 Cory V. Thames Iron Works Co., 13, 16, 122, 464 Cotterell v. Jones, 346 Cotton V. Wood, 36 Cougan w. Bankes, 174 Couling V. Coxa, 363 Coulthurst V. Sweet, 209 Cousins V. Paddon, 71, 154 Cowards. Gregory, 189, 192, 197, 198 Cowell V. Edwards, 243 Cowing V. Cowing and WoUen, 386 Cox V, Burbidge, 35 Cox V. Glue, 332 Cox V. Henry, 144 Cox V. Rodbard, 169 Cox V. Walker, 130 Coy V. Hymas, 440 Crain v. Aiken, 2/3 Crampton v. Walker, 77 Crane v. Hummerstone, 435 Cranston v. Marshall, 132 Craythome v. Swinburne, 249 Creevy v. Carr, 374 Cressy v. Webb, 438 Cripps V. Smith, 178 Crisdee v. Bolton, 98, 104 Crockford v. Winter, 110 Croft (Lady) v. Lyndsey, 404 Cioiionv. Poole, 410, 411 Crofts V. Beale, 176 Crommelin v. Donegal], 236 Crosse v. Smith, 404 Crossfield v. Such, 308 Crosskill v. Bower, 106 Crouch V. Gi-eat Northern Ry. Co., 207, 219 Crouch V. London and North Western Ry, Co., 207, 222 Crowder v. Long, 355 Crowther v. Ramsbottom, 322 Cuckson '('. Stones, 156 Cuming v. Sibly, 2, 462 Gumming v. Bedborough, 189 Curling v. Evans, 356 Curtis V. Hannay, 130 Cussons V, Skinner, 156 Cutler V. Close, 72 Cutler's Company v. Hursler, 165 Cutter V. Powell, 155 Czech t). General Steam Navigation Co., 228 Da Costa v. Newnham, 267 Daintry v. Brocklehurst, 447 Dakin v. Oxley, 79, 209, 211 Dalby v. India & London Life Assurance Co., 250, 251 Dalton V. S. E. Ry. Co., 393 Danube (The) &c. Ry. Co. v. Xenos, 117 Darbishire v. Butler, 169 Darby v. Ouseley, 365 Darnell v. Williams, 176 Darrose v. Newbott, 443 Davenport v. Rylands, 27, 464 Davey v. Mason, 226, 227 Davey v. Phelps, 454 Davidson v. Gwynne, 211 Davies v. Humphreys, 244, 243 Davies v. Penton, 78, 102, 103 Davies v. Solomon, 372 Davies v. Underwood, 191, 194 Davis V. Barker, 173 Davis V. Burrell, 204 Davis V. Cutbush, 373 Davis V. Garrett, 412 Davis V. Gompertz, 424 Davis V. Haycock, 119 Davis V. Hedges, 131 Davis V. Holdship, 426 Davis V. Oswell, 296 Davis V. Smyth, 107 Davy V. Milford, 261, 262 Dawes v. Pinner, 106 Dawson v. Collis, 72, 129 Dawson v. Morgan, 57 Day V. Porter, 66 De Bernales v. Wood, 108, 109, 135 Deere v. Ivey, 430 Deering v. Winchelsea, 249 Defries v. Davis, 364 De Gaillon v. L'Aigle, 425 De Havilland v. Bowerbank, 108 ' De la Rue v. Stewart, 167 Delavergne v. Norris, 150 Delegal v. Naylor, 295 Delegall v. Highley, 264, 369 TABLE OF CASES. XIX Delves v. Wyer, 452 De Medina v. Grove, 24 De Medina v. Poison, 182 Denby v. Moore, 189 Denew v. Daverell, 71 Dengate v. Gardiner, 366 Denoon v. Home & Colomal Assurance Co., X. Dent V. Dunn, 110, 173 De Roufigny v. Peale, 361 Derry v. Handley, 42, 371 De Sewhanberg v. Buchanan, 178 De Tastett v. Crousillat, 414 Dewell V. Marshall, 443 Dickenson I'. Harrison, 109, 422 Dicker v. Adams, 429 Dickinson v. G. June. Canal, 342 Dickinson v. N. E. Ry. Co., 392 Dickson v. Swansea Vale Ry. Co., 94 Digby V. Atkinson, 193 Dimech v. Corlett, 102, 104 Dimes v. Petley, 418 Dingle v. Hare, 133 Dixon V. Bell, 65 Dixon V. Fawcus, 54 Dixon V. Parkes, 162 Dixon V. Reid, 257 Dixon v. Smith, 370, 371 Dobson V. Blackmore, 418 Dobson V. Dobson, 280 Dockwray v. Dickenson, 298 Dod V. Monger, 328 Dodd V. Holme, 330 Dodd V. Norris, 75, 379 Dodge V. Bartol, 273 Dods V. Evans, 425 Doe V. Davis, 339 Doe V. Filliter, 43, 339 Doe V. Hare, 43, 339, 340 Doe V. Harlow, 337 Doe V. Huddart, 45, 339 Doe V. Perkins, 450 Doe d. Worcester School Trustees r, Row- lands, 190, 193 Donald v. Suckling, 299 Donelly v. Baker, 455 Doran v. O'Reilly, 110 Dormer v. Fortescue, 338 Douglass V. Murphy, 203 Do well V. Steam Navigation Co., 37 Down V. Pinto, 158 Downes v. Back, 123 Downing v. Butcher, 347 Dowse V. Coxe, 398 Dowsland v. Thompson, 78 Doyle V. Duffy, 426 Drage v. Brand, 166 Drake v. Beckham, 189 Dresser v. Norwood, 86 Dry, V. Bond, 166 Du Belloix v. Lord Waterpark, 171, 456 Duberley v. Gunning, 74, 334, 457, 460 Du Bost V. Beresford, 312 Ducker v. Wood, 458 Duckettv. Satterfield, 213 Duckworth, Re, 87 Duckworth v. Alison, 79 Duckworth©, Ewart, 8 Duckworth v. Johnson, 393 Dufifr. Mackenzie, 263 Duffield V. Scott, 57, 244 Duncan v. Benson, 274 Dunlopv. Grote, 119 -> Dunlop V. Higgins, 31 Dunmore v. Taylor, 78 Dunn V. Large, 338 Dunnt'. Sayles, 156 Durell V. Pritchard, 464 Dutch V. Warren, 126 Duthie V. Hilton, 211 Dyson v. Rowcroft, 257 Eardley v. Price, 160 Earle v. Holderness, 303 East of England Banking Co., Re, 172 East V. Chapman, 373 Eastonv. Pratt, 195 Eastwood V. Lever, 464, 465 Easum v. Cato, 89 Eaton V. Bell, 106 Eddowes v. Hopkins, 446, 447 Edge V. Hillary, 445 Edgell V. Francis, 459 Edie V. Kingsford, 152 Edmonds v. Challis, 354 Edmondson v. Nuttall, 302 Edwards v. Bethel, 405 Edwards v. Crock, 382, 383 Edwards v. Edwards, 400 Edwards v. G, W, Ry. Co., 112, 113, 207 Edwards v. Matthews, 445 62 XX TABLE OF CASES. Edwards v. Vere, 110 Eichorn v. Le Maistre, 442 Eldeiton v. Emmens, 157, 158, 159 Eliot V. Allen, 435 Eliot u. Skypp, 447, 448 Elliot V. Clayton, 411 Elliott V. Nicklin, 379 Ellis V. Chinnock, 132 Ellis V. London & S. W. Ey. Co., 37 Ellis V. Taylor, 327 EUyatt V. Ellyatt, Taylor, and Halse, 384 Elmes, ex parte, 142 Elsam V. Faucett, 383, 385 Emblen v. Myers, 26 Embrey v. Owen, 5, 342, 343 Emmerson v. Heelis, 136 Empson v. Griffin, 446, 447 Engel V. Fitch, 138 Entwisle v. Ellis, 262 Ernest v. Brown, 447, 448, 451 Ethersey v. Jackson, 167 Etherton v. Popple well, 326 Evans v. Brander, 353, 355 Evans v. Evans and Bird, 387 Evans v. Harlow, 370 Evans v. Harries, 369, 370, 421 Evans •?;. Kymer, 176 Evans v. Lewis, 301 Evans V. Lewis, 301 Evans v. Prosser, 80 Evans v. Walton, 380 Evelyn v. Raddish, 331 Everard v. Hopkins, 35 Everett?;. Touells, 448 Everth v. Smith, 259 Ewbank v. Nutting, 288 Exall V. Partridge, 246 Exeter (Bp. of) v. Freake, 282 Explorer (The), 225 Eyton V. Littledale, 81 Fabriqas v. Mostyn, 459 Facy V. Lange, 3 Fair v. M'lver, 91 Fairman v. Oakford, 160 Farebrother v. Welcbman, 95 Farebrother v. Worsley, 243, 244 Farmer v. Darling, 347 Farnell v. Keightley, 320 Faruworth v. Hyde, 258 Farquhar v. Farley, 108, 109, 135 Farquhar v. Morris, 107 Farr v. Ward, 106, 422 Farrance v. Elkington, 187 Farrant v. Barnes, 217 Farrant v. Olmius, 98, 456 Farrell v. Donnelly, 187 Farrow v. Wilson, 156 Fawcett v. Cash, 160 Fawcett v. Woods, 144 Feize v. Thompson, 6, 453 Fenn v. Harrison, 180 Fentum v. Pocock, 176 Feuwick r. Robinson, 267 Ferjusson v. Fyffe, 106 Ferris v. Comstock, 133 Fetter v. Beale, 59, 63 Fewings v. Tindal, 160 Field V. Jellicus, 306 Finch V. Blount, 66, 298 Finnerty v. Tipper, 364, 373 Fish V. Kempton, 86 Fisher v. Bridges, 340 Fisher v. Budding, 111, 114 Fisher v. Fallows, 248 Fitter V. Yeal, 367 Fitzsimons v. Inglis, 422 Fleetwood v. Taylor, 462 Fleming iK Langton, 429 Fleming v. Simpson, 178 Fleming v. Smith, 260 Fletcher v. Alexander, 272 Fletcher v. Dyche, 72, 82, 104 Fletcher v. Moore, 186 Fletcher v. Tayleur, 8, 10, 123 Flint V. Flemyng, 268 Florence v. Drayson, 111 Florence v. Jenings, 111 Flower v. Adam, 36 Flowers t;. S. E. Ey. Co., 227 Flureauv. Thornhill, 137 Flying (The) Fish, 36, 810 Foley V. Addenbroke, 205 Foote V. Hayne, 376 Ford V. Beech, 96 Forrest r. Elwes, 124 Forsdike v. Stone, 455 Forster v. Forster & Berridge, 286, 387 Forster v. Wilson, 91 Foster v. Equitable Mutual Fire Ins. Co., 256 Foster v. Weston, 108 TABLE OF CASES. XXI Foulkes V. Sellway, 377 Fountain v. Boodle, 3(36 Foxall V. Barnett, 46 France v. Gaudet, 297 France v. White, 81 Francis v. Baker, QQ Francis v. Dods worth, 81 Francis v. Wilson, 170 Franklin v. Carter, 189 Franklin v. S. E. Ry. Co., 393 Fray v. Voules, 360, 415 Frayes v. Worms, 272 Fredei'ick v. Lookup, 2, 462 Freeman v. Fairlie, 404 Freeman v. Hyett, 78 Freeman v. Price, 462 Freeman v. Rosher, 317 French v. Audrade, 82 French v. Brookes, 158, 160 French v. Fenn, 89 Frost i;. Knight, 61, 117, 158 Friihling v. Schrceder, 110 Gai-nsford t;. Carroll, 116, 123 Gale V. Luttrell, 81, 95 Galet;. Walsh, 179 Galsworthy v. Strutt, 103 Gamon v. Jones, 320 Gandell v. Poutigny, 159 Gantt V. Mackenzie, 172 Garbutt v. Simpson, 379 |^ Garland i;. Carlisle, 114 Garner v. Moore, 204 Gamett v. Willan, 226 Garrett v. Messenger, 3 Garrick v. Jones, 80 Gathercole v. Miall, 366 Geare v. Britton, 370 Gee V. Lancashire and Yorkshii-e Ry. Co., 14, 17 Gee V. Pack, 235 Gell V. Burgess, 161 Gen. Steam Nav. Co. v. British & Colonial Steam Nar. Co., 224 Gen. Steam Nav. Co. v. Mann, 36 George v. Clagett, 85 Gei-aldes v. Donison, 208 Gibbon v. Budd, 65 Gibbon v. Paynton, 231 Gibbsi;. Fremont, 173, 174 bibbs V. Potter, 225 Gibbs V. Tunaley, 456 Gibson v. BeU, 88, 90 Gibson v. Chaters, 347 Gibson v. Humphrey, 303 Gibson v. Kirk, 182 Gibson v. Sturge, 209 Gilbert v. Berkinshaw, 457 Gilbertson v. Richardson, 309 Gillard v. Brittau, 314 Gillett V. Mawman, 78 Gillett V. Rippon, 57 Gilliugham v. Waskett, 77 Gillon V. Boddington, 63 Gimbart v. Pelah, 326 Girdlestone v. Porter, 337 Glaister v. Hewer, 79 Glasspoole v. Young, 289 Glover v. London and S. W. Ry. Co., 36 Glynn v. Thomas, 322 Godefroy v. Jay, 6, 360 Godsall V. Boldero, 250 Godwin v. Francis, 46, 49, 52, 136, 139 Goldsmid v. Raphael, 318 Gompertz v. Bartlett, 180 Gompertz v. Denton, 129 Goode V. Goode and Hamson, 383 Goodman v. Pocock, 158, 159, 160 Goodtitle v. Tombs, 338 Goodwin v. Cremer, 162 Gordon v. Ellis, 82 Gore V. Brazier, 147 Gordon v. Swan, 108, 110 Gorton v. Gregory, 405 Gosbell V. Archer, 135 Goslin V. Corry, 62, 367, 368 Gotobed v. Wool, 443 Gough V. Farr, 24 Gould V. Barratt, 43, 347 Gould V. Hammersley, 428 Gould V. Oliver, 273 Gould T. Webb, 156 Gower (Lord) r. Heath, 455 Grace v. Morgan, 43, 347 Grafton v. Armitage, 153 Graham v. AUsopp, 90 Graham v. Bowham, 447 Graham v. Jackson, 116 Graham v. Wigley, 382 Grainger v. Martin, 253 Gramvel v. Rhobotliam, 431 Grant v. Royal Exchange Co., 76 XXll TABLE OF CASES. Grant v. Astle, 449 Grant v. Welch man, 177 Grater v. Collard, 455 Gray v. Briscoe, 142 Greasly v. Codling, 343 Great N. Ry. Co. v. Shepherd, 231 Great Western Ry. Co. v. Redmayne, 15, 219, 220 Great Western Ry. Co. v. Rimell, 228 Greaves v. Ashlin, 118, 122 Green v. Button, 41, 371 Green i;. Eales, 198 Green v. Farmer, 292 Green v. Price, 104 Green v. Royal Exchange Assurance Co., 259, 260, 265, 266 Green v. Salmon, 400 Greene v. Tallman, 150 Greening v. Wilkinson, 286, 287 Greenland v. Chaplin, 37 Gregory v. Cotterell, 315, 351, 435, 450, 458 Gregory v. Duke of Brunswick, 429 Gregory v. Williams, 367 Gregson v. M'Taggart, 386 Gregson v. Theaker, 386 Greville v. Gunn, 234 Grey v. Grant, 458 Griffinhoofe v. Daubuz, 250 Griffin v. Colver, 13, 232 Griffin v. Scott, 325 Griffiths V. Lewis, 433 Griffiths V. Perry, 118, 129, 309 Grissell's Case, 87 Grissell v. Bristowe, 119 Groom v. Mealey, 90 Groom v. West, 90 Grounsell v. Lamb, 154 Guest V. Warren, 350 Guntcr v. Astor, 380 Guthrie y. Pugsley, 143. Gutteridge v. Munyard, 196 Guy V. Gregory, 365, 372 Gwilt V. Crawley, 361 IIaddan v. Lott, 371, 372 Hadley v. Baxeudale, 9, 27, 217, 219 232, 446, 454 Haight r. Heyt, 150 Hale V. City of New Orleans, 147 Halls V. London & N. W. Ry. Co., 219 Hali V. Burgess, 185 Hall V. Dean, 150 Hall V. Stone, 454 Hall V. Wright, 377 Hallett V. Wigram, 222, 274 Halliday v. Holgate, 300 Hambleton v. Veere, 62 Hambly v. Trott, 396 Hamer v. Knowles, 60 Hamilton v. Mendes, 263 Hamlin v. G. N. Ry. Co., 219 Hammond v. Rogers, 223 Hanbury v. Ireland, 63 Hancock v. Podmore, 400 Hankeyv. Smith, 447 Hauna v. Mills, 114 Hannay v. Smith, 438 Hanslip v. Padwick, 29, 40, 136 Hanson, ex parte, 96 Harbert's (Sir James) Case, 443 Harbin v. Green, 58 Harcourt v. Weeks, 443 Hardcastle v. Netherwood, 76 Hardcastle v. S. Yorkshire Ry. Co., 38 Harding v. Carter, 296 Hardy v. Bern, 166, 442 Hardy v. Cathcart, 449, 450, 451 Hare 2). Rickards, 107 Hare v. Travis, 268 Hargreaves v. Hutchinson, 293 Harrington v. Hoggart, 109 Harmer v. Cornelius, 156 Harper v. Eyies, 341 Harper v. Williams, 112 Harrap v. Armitage, 238 Harries v. Edmonds, 212 Harrington v. Binns, 360 Harringtons. Churchward, 157 Harrington v. Coxe, 168 Harris v. Butterley, 438 Harris v. Jone.s, 196 Harris v. Osbourn, 154 Harrison v. Allen, 422 Harrison v. Bush, 366 Harrison u. Cage, 375, 460 Hai risen v. Dickson, 172 Harrison v. G. N. Ry. Co. , 43 Harrison v. Harrison, 123 Harrison v. King, 447, 450, 451 Harrison v. London & B. & S. C. Ry. 229 ' TABLE OF CASES. XXlll Harrison v. Wright, 99, 170, 220 Harrop v. Hirst, 5, 342 Hart V. Baxendale, 230 Hartv. Frontino, &c.. Gold Mining Co., 130 Hartley v. Harman, 160, 430 Hartley -y. Herring, 370, 421 Hartley v. Pehall, 139 Harvey v. Pocock, 328 Hathaway v. Barrow, 43 Hatheway v. Newman, 370 Havelock v. Geddes, 211 Hawkins v. Alder, 462 Hawkins?^. Conlthurst, 204 Hawkins v. Harwood, 361 Hawkins v. Kemp, 140 Hawkins v. Plomer, 357 Hawkins v. Sciet, 452 Hawkins v. Twizell, 156 Hayllar v. Sherwood, 81 Hayter v. Moat, 400 Haythorn v. Dawson, 350, 366 Hayward v. Newton, 455 Hearn^. S. W. Ry. Co., 230 Hebdon v. West, 250 Hedburg v. Pearson, 262 Heenan v. Evans, 355 Hefford v. Alger, 242, 353 Heilbut V. Nevill, 411 Helier v. Casebert, 402 Hellen v. Ardley, 170 Hellier v. Franklin, 107 Hellings v. Young, 454 Hely V. Hicks, 293 Hemming i;. Hale, 358 Hemmings v. Gasson, 364 Henderson •;;. London & N. W. Ry. Co., 227 Henderson i;. Squire, 55, 205 Henkel v. Pape, 232 Henley v. Mayor of Lyme Regis, 447 Henry v. Earl, 161 Henry v. Goldney, 440 Herbert v. Salisbury & Yeovil Ry. Co., 104 Herbert v. Walters, 320 Herbert v. Waters, 434, 441, 443 Herrick v. Moore, 151 Hesse v. Stevenson, 410 Hewlett V. Cnichley, 457, 459 Hey V. Wyche, 200 Heydon's Case, 300, 312, 428, 435 Heywood v. Foster, 3 Heyworth v. Hutchinson, 129 Hickie v. Rodocanachi, 261 Hicks V. Mareco, 110, 422 Hide V. Thornborough, 330 Higgins V. Sargent, 105, 108 Higginson v. Weld, 217 Higgs V. Assam Tea Co., 94 Hilhouse v. Davis, 109 Hill V. Balls, 135 Hill V. Featherstouhaugh, 70, 154 Hill V. Goodchild, 435, 437 Hill-y. Smith, 69, 410 Hills V. London Assurance Corporation, 262 Hilton V. Fowler, 452 Hilton V. Woods, 291 Hinton v. Sparkes, 104, 141 Hirschfield v. Smith, 175 Hitchens v. Hitchens, 280 Hitchman v. Stewart, 247, 249 Hoare v. Allen, 384 Hoare v. Crozier, 452 Hobbs V. Christmas, 179 Hoblins v. Kimble, 440 Hobson V. Thellusson, 355 Hobson V. Todd, 342, 344 Hoby V. Built, 361 Hochster v. De Latour, 61, 117, 121, 158 Hodges V. Litchfield, 45, 135, 136, 420 Hodgman v. West Midland Ry. Co., 230 Hodgson V. Sidney, 408 Hodgson V. Wood, 236 HodsoU V. Stallebrass, 59 Eoejv. Felton, 27, 31 Hogan V. Page, 108 Holbach v. Warner, 34 Holcomb V. Rawlyns, 337, 338 Holden in Liverpool Gas Co., 36 Holdsworth v. Wise, 264 Holford V. Dunnett, 197, 430 Holford V. Hatch, 242 Holliday v. Atkinson, 176 HoUoway v. Bennet, 449, 451 Holloway v. Turner, 45, 311 Holmes v. Sparkes, 359 Holmes v. Tutton, 95 Holmes v. Wilson, 63, 64, 334 Holt V. Holland, 282 XXIV TABLE OF CASES. Holt V. Holt, 404 Holt V. Scholefield, 431 Holtum V. Lotun, 419 Hulvvood V. Hopkins, 42 Hooper v. Pope, 452 Hopkins V. Grazebi'Ook, 137 Hopkins v. Murray', 242 Hopper V. Richmond, 171 Hop wood V. Schofield, 343 Hopwood V. Thorn, 370 Hopwood V. Whaley, 402 Horn V. Chandler, 62 Horner v. Denham, 163 Homer v. Flintoff, 102 Hornidge v. Wilson, 403 Horsford i^. Wright, 147 Horton r. M'ilurtrey, 156 Hosking V. Phillips, 330 Houghton V. Matthews, 86 Houliston V. Smyth, 383 Hounsell v. Smyth, 38 Howard v. Lovegrove, 57 Howard v. Newton, 436 Howard u Woodward, 103 Howe V. Mackay, 247 Howell V. Young, 61, 360 Howes V. Martin, 54 Howlet V. Strickland, 78 Huckle V. Money, 459 Hudson v. Nicholson, 63 Hudston V. Midland Ry. Co., 231 Hughes V. Browne, 322 Hughes V. Graeme, 48, 50 Hughes V. MacFie, 38 Hughes V. Quentin, 309 Hughes V. Rees, 433 Hughes V. Thomas, 338 Hulme V. Muggleston, 88 Hume V. Oldacre, 335 Hunt V. Jones, 420 Hunt V. Round, 354 Hunt V. Royal Exchange Assurance Co. 259, 260 Hunt V. Silk, 140 Hunter, ex parte, 141 Hunter v. Fry, 208, 211, 217 Hunter v. Hunt, 250 Hunter v. King, 67 Hunter v. M'Gown, 225 Hunter v. Wilson, 176 Huntley v. Bulwer, 154 Hurst V. Hurst, 98 Hurst V. Jennings, 169 Hutchins i\ Chambers, 322 Hutchinson v. Reid, 77, 116 Hutchinson v. Sidney, 78 Hutchinson v. Sturges, 77 Hutchinson v. York, N. & B. Ry. Co., 394 Hutton V. Ward, 173, 426 Huxley v. Berg, 335, 336 Hyde v. Cookson, 292 Ibbett v. De la Salle, 58, 240 Ibbs V. Richardson, 337 Iceiy V. Grew, 141 Idle V. Royal Exchange Assurance Co., 259 luchbald v. Western Neilgherry Cofifee Co., 117, 155 Industrie (The), 39 Ingram v. Lawson, 62, 367, 368, 369 lona (The), 223 Ireland v. Johnson, 326 Irving V. Clegg, 213 Irving V. Greenwood, 74, 376 Irving V. Manning, 104, 257, 258, 264 Isberg V. Bowden, 85, 87 Ive V. Scott, 339, 427 Jackson v. Bowley, 405 Jackson v. Galloway, 451 Jackson v. Pesked, 343 Jackson v. Williamson, 448, 452 Jacob V, Rowntree, 148 Jacobsohn r. Blake, 327 Jacques v. Withy, 80 James v. Kynnier, 95 James v. Biddington, 25, 375, 38.t James (Lady) v. East India Co., 207 James v. Thomas, 169 Janson v. Ralli, 262 Jarmaine v. Egelstone, 136 Jarvis v. Chappie, 86 Jeakes v. White, 139 Jefferies v. Sheppard, 358 Jeiferson v. Jefferson, 331 Jeffery v. Bastard, 353 Jeffryes v. Agra & Masterman's Bank, 94 TABLE OF CASES. XXV Jenkins v. Blddulph, 43, 359 Jenuey v. Brook, 432, 454 Jervis v. Tomkinsou, 1S2 Jesser v. Glfford, 331, 343 Job V. Langton, 269 Jolins V. Dodswortli, 437 Johnson v. Bland, 61 Johnson v. Durant, 108 Johnson V. Jones, 188 Johnson v. Johnson, 136 Johnson v. Lakeinan, SO Johnson v. Stear, 298, 299 Johnson v, Upham, 327 Johnson v. Wyatt, 464 Johnstone v. Hall, 331 Johnstone V. Huddlestone, 187 Jones V. Bodinner, 442 Jones V. Boyce, 39 Jones V. Briuley, 246 Jones V. Brooke, 47 Jones V. Dyke, 136 Jones V. Gooday, 330 Jones V. Harris, 438 3 ones V. Hibbert, 176, 178 Jones V. Just, 130 Jones V. Jones, 280, 281 Jones V. Lewis, 422 Jones V. Mackie, 375 Jones V. Moore, 95 Jones «. Mossop, 95 Jones V. Orchard, 248 Jones V. Eyde, 180 Jones V. Shiel, 428 Jones V. Sparrow, 461 Jones V. Williams, 67, 244 Jordin v. Crump, 38 Joule V. Taylor, 4 Kkaksley v. Oxley, 402 Keen v. Priest, 326, 328 Keene t: Dilke, 317 Keene v. Keene, 171 Kelly V. Partington, 33, 372 Kelly V. Sherlock, 373, 456 Kemble v. Farren, 102 Kemp V. Finden, 48, 249 Kemp V. Halliday, 258, 270 Kendillon'y. Maltby, 42, 371 Keudrick v. Lomax, 179, 180 Kennedy v. Whitwell, 287 Keunerly v, Nash, 171 Kerbey v. Denby, 316 Kerfoot v. Marsdeu, 375 Kernochan v. New York Bowery Fire In- surance Co., 256 Kent V. Kent, 280 Kerr v. Willan, 226 Kidd V. Walker, 111, 173 Kldgill V. Moore, 343 Kightley v. Birch, 434 Kilmore v. Abdoolah, 455, 456 Kilner i'. Bailey, 447 Kilvington v. Stevenson, 83 Kinder v, Butterworth, 90 King V. England, 325 King V. Hoare, 305, 306, 440 King V. Jones, 149, 389 King V. Norman, 234 Kingdon v. Nottle, 142, 144, 389 Kingham v. Robins, 70 Kingston -u. M'Intosh, 110, 269 Kinnerley v. Hossack, 81 Kinnersley v. Mussen, 169 Kinney v. White, 146 Kitchenman v. Skeel, 434 Knights. Egerton, 325, 446, 454 Knight V. Faith, 263 Knight V. Gibbs, 33, 372 Knight V. Hughes, 57, 249 Knight V. Quarles, 3S9 Knowles v. Nunns, 135 Kynaston v. Mayor of Shrewsbury, 320, 442 Lacon v. Barnard, 306 Lacy V. Reynolds, 442 Ladd V. Thomas, 327 Laing v. Stone, 171, 456 Laird v. Pim, 140, 141 Lambarde v. Older, 83, 95 Lamert v. Heath, 119 Lamond v. Davall, 78, 116 Lamont v. Crook, 362 Lancashire Waggon Company Hugh, 356 Laudsberger v. The Magnetic Telegraph Co., 232 Lane v. Cotton, 232 Lane v. Hill, 6 Lane v. Mullins, 425, 426 Langton v. Waite, 124 Latham v. Latham and Gethin, 3S7 Fitz- XXVI TABLE OF CASES. Latour v, Latour and Weston, 383 Laurent v. Chatham Fire Insurance Co. , 252 Law V. Indisputable Assurance Co., 250 Lawrie v. Dyeball, 431 Lawson v. Storie, 441 Lazarus v. Cowie, 176 Leach v. Thomas, 431 Leather Cloth Company v. Hirschfield, 27 Lebel v. Tucker, 175 Le Cheminant v. Pearson, 268 Lechiuere v. Fletcher, 440 Lechmere v. Hawkins, 80 Le Couteur v. London & S. W. Ry. Co., 226 Lediard v. Boucher, 66 Lee V. Ayr ton, 360 Lee V. Bullen, 91 Lee V. Huson, 364 Lee V. Muggeridge, 430 Lee V. Munn, 109 Lee V. Riley, 35 Lee V. Rook, 244 Leeds v. Cook, 74, 376, 377 Leeson v. Smith, 453 Lefanu v. Malcolmson, 366 Leftley v. Mills, 179 Legge V. Harlock, 79 Leggett V. Cooper, 70 Leigh V. Lillie, 98 Leigh v. Paterson, 121 Leighton v. Wales, 100 Leigh V. Thornton, 402 Leitli V. Pope, 459 Le Loir v. Bristow, 71 Leman v. Gordon, 81 Lenox v. United Insurance Co., 273 Lester v. Lazarus, 81 Lethbridge v. Mytton, 6, 150, 204, 236, 239, 456 Le-veridge v. Forty, 424 Levy V. Hale, 356 Levy V, Langridge, 114 Lewis V. Campbell, 145 Lewis V. Cosgrave, 178 Lewis V. Morland, 356 Lewis V. Peachey, 62 Lewis V. Peake, 53, 420 Lewis V. Rucker, 261, 264, 267 Lewis V. Smith, 240 Linford v. Lake, 75 Lintott, ex parte, 113 Lion (The), 224 Lister v. Perryman, 347 Livie V. Janson, 268 Livingston v. Douglas, 426 Lloyd V. Mostyn, 45 Lloyd V. Morris, 433 Lock V. Ashton, 350, 454 Lock V. De Burgh, 186 Lock v. Furze, 138, 145, 147 Lockier v. Paterson, 391 Lockley v. Pye, 318 Loder v. Kekule, 122, 130 Lofi't V. Denis, 182 Logan V. Hall, 56, 242 London and North Western Ry. Co. v. Glyn, 255 L. & S. W. Ry. Co. V. James, X. Lonsdale (Lord) v. Church, 169 Loosemore v, Radford, 6, 236, 294 Loring v. Warbui'ton, 327 Loton V. Devereux, 44, 311 Love V. Houeybourne, 399 Lovelock V. King, 153 Lowden v. Goodricke, 419 Lowden v. Hierons, 361 Lowe V. Booth, 226 Lowe V. Harewood, 420 Lowe V. Peers, 98, 99, 170 Lowe V. Steele, 161 Lowfield V. Bancroft, 435 Lowndes v. Earl of Stamford and War- rington, 160 Lozano v. Janson, 259, 264 Lucas v. Godwin, 154 Lucas V. Tarleton, 321 Lucey v. Ingram, 224 Luokie v. Bushby, 77 Lucy V. Levington, 390 Lucy V. Mouflet, 129 Lukin V. Godsall, 330 Lumley v. Gye, 32, 41, 371, 429 Luxmore v. Robson, 189 Luddall V. Dunlapp, 401 Lygo V. Newbold, 38 Lynch v. Dalzell, 252 Lynch ■;;. Knight, 42, 372 Lynch v. Nurdin, 38 Lyne v. Lyne and Blackney, 387 Lyne v. Moody, 322 Lyons v. Martin, 317 TABLE OF CASES. XXVU 231 Maberley v. Kobins, 109 MacAndrew v. Electric Telegraph Co., 232 Macleans. Dunn, 116 Macleod v. Wakley, 364 Macnamara v. Vincent, 191 Macrae v. Clarke, 358 Macro w v. Great Western Ry. Co Magennis v. Dempsey, 400 Maiuwaring v. Brandon, 53, 413 Makinson v. Rawlinson, 303 Malacby v. Soper, 369, 370, 418 Maiden v. Fyson, 43, 136 Mallet V. Ferrers, 452 Mallough V. Barber, 412 Mangan v. Atherton, 38 Manley v. Boycot, 176 Mansfield (Earl of) v. Ogle, 110 Man ton v. Bales, 455 Mantz V. Goring, 195 Mardall v. Thelluson, 84 Markby, Re, 186 1 Markham v. Middleton, 454 Marler v. Ayliffe, 438 Marriott v. Cotton, 190, 191 Marris v. Marris, 384 Marshall, ex parte, 48 Marshall v. Jackson, 340 Marshall V. Broadhurst, 395 Marshall V. Poole, 106, 422 Marsham v. BuUer, 455 Marston v. Phillips, 306 M' Arthur v. Seaforth, 124 Martin v. Crokatt, 260 Martin v. Great Northern Ry. Co., 36 Martin v. Great Indian Peninsula Ry. Co., 223 Martin v. Porter, 291, 333 Martin v. Roe, 397 Martin v. "Winder, 81 Martineau v. Kitching, X. Mary's Case, 417 Marzetti v. WilUams, 5, 241, 415 Mason v. Barker, 65 Massey v. Banner, 404 Massey v. Sladen, 299 Masters v. Farris, 326, 441, 454 Alasterton v. Mayor of Brooklyn, 29, 117 Malhew v. Sherwell, 295 Matthew v. Osborne, 338 Matthews v. Discount Corporation, 41 3 Mauricet v. Brecknock, 455 Maxted v. Paine, 119 Maxwell v. Jameson, 245 May V. Brown, 75, 373 Maydew v. Forrester, 413 Mayhew v. Eames, 226 Mayhew v. Nelson, 227 Maylam v. Norris, 99, 170, 220 M'Cance v. London and North Western Ry. Co., 231 M'Carthy v. Abel, 260, 264 Mayo V. Archer, 447 M'Clure v. Dunkin, 110, 170 Mead v. Bashford, 81 Mead v. Daubigny, 364 Mears V. Griffin, 456 Mears v. London and South Western By. Co., 300 Medway Navigation Co. v. Earl of Roui- ney, 5 Mellish V. Andrews, 260 Mellish V. Richardson, 450 Mellish V. Simeon, 178 Mellona (The), 310 Menzies v. North British Insurance Co., 256 Mercer v. Graves, 79 Mercer v. Irving, 103 Mercer v. Jones, 286, 287 Mercer v. Whall, 156, 445 Merest v. Harvey, 23, 336, 458 Merryweather v. Nixan, 68, 439 Mertens v. Adcock, 78, 116 Metcalf V. London, Brighton and South Coast Ry. Co., 228 Metropolitan Association v. Fetch, 343 Meyer v. Dresser, 79, 211 Meymottu. Meymott, 110 Michael v. Gillespy, 259 Middleton v. Bryan, 168 Middleton v. Magnay, 464 Miers v. Lockwood, 242, 354 Milan (The), 40, 310 Miller v. Tetherington, 273 Miller v. Woodfall, 261 Milliken v. Fox, 428 Mills V. Funnel, 440 Mills V. Trumper, 186 Milner v. Tucker, 71 Milward v. Hibbert, 273 Miushull V. Oakgs, 93, 96 M'Intyrev. Belcher, 156, 157 XXVIU TABLE OF CASES. Mitchell V. E.lie, 2G0 lilitcbell V. Milbank, 437 Mitchell V. Newhall, 119 M'Keuna r. Haraett, 246 M'Leod V. M'Ghie, 295, 302 M'Loughlin V. Welsh, 370, 421 M'Maaus v. Lancashire, &c. By. Co. , 229 Moggridge «. Jones, 177 MoUer v. Living, 203 Mondel v. Steel, 66, 131 Montgomery v. Byrne, 166 Moody V. Dean, &c. of Wells, 188 Moody V. Pheasant, 168 Moon V. Raphael, 297, 301, 313 Moore w. Clark, 197 Moore v. Drinkwater, 309 Moore v. Meagher, 372 Moore v. Moore, 358 Moore v. Pyrke, 78, 246 Moore v. Tuckwell, 453 Moore v. Voughton, 106 Moorsom v. Page, 207, 213 Moran v. Jones, 269 Moravia v. Hunter, 438 Mordant v. Thorold, 281 Mordy v. Jones, 259 More's Case, 452 More wood v. Pollok, 225 Morgan v. Hughes, 350 JMorgan v. iVIetropolitan Ry. Co., 140 Morgan v. Powell, 291, 333 Morgan v. Richardson, 178 Morgan v. Steble, 408 Moi-leyr. Inglis, 77, 78 Morningtou v. Try, 449 Morrell v. Irving Fire Insurance Co., 251 Morris v. Langdale, 33, 41, 371, 372 Morris v. Phelps, 148 Morris v. Robinson, 68, 224, 301 Mon-ish v. Murrey, 457 Morrison v. Chadwick, 148 Morrison v. Robinson, 340 Jlortimer v. Cradock, 293, 4G0 Morton's Case, 440 Morville v. Great Northern Ry. Co., 228 Moseley v. Rendell, 399 Moss V. Smith, 258, 259, 265, 267 Moss V. Thwaite, 303 Mosse V. Salt, 106 Moule V. Garrett, 241 Mount V. Harrison, 260 Mountford i: Gibson, 74 Mountford v. Willes, 108, 110 Mowatt V. Lord Londesborough, 112, 113 Muduu Doss V. Gokul Doss, 311 Mullet V. Challis, 355 Mullett V. Hutton, 373 Mullett V. Hunt, 362 Mullett V. Mason, 135 Mullett V. Sbedden, 257 Mumford v. Oxford, Worcester, & Wolver- hampton Ry. Co., 332 Munro v. Butt, 154 Murgatroyd v. Murgatroyd, 379 Murphy v. Donlan, 438 MuTay V. E. of Stair, 168 Murray v. East India Co., 172 Mussen v. Price, 116 Mytton V. Midland Ry. Co. 231 Naoroji v. Chartered Bank of India, 89 Napier v. Shneider, 178 Nargett v. Nash, 326 Nairacott v. Narracott & Hesketb, 3S7 Nash V. Lucas, 326 Nash V. Palmer, 239, 240 Nash V. Swinburn, 361 National Assurance Co. v. Best, 204 Navone v. Haddon, 261 Neale v. Mackenzie, 185 Neale v. Ratcliflf, 197 Neale v. Wyllie, 56, 242 Needham v. Fraser, 362 Nelthorpe v. Dorrington, 298 Newborough (Lord) v. Schroder, 243 Neweombe v. Green, 446, 447 Newell V. Jones, 106 Newman v. Barnard, 441 Newman v. Cazalet, 269 New Quebrada Co. v. Carr, 90 Newsam v. Carr, 347 Newton v, Conyngham, 114 Newton v. Forster, 71, 155 Newton v. Gi'and June. Ry. Co., 114 Newton V. Harland, 447 ' Newton V. Newton, SO Niblo V. N. American Insurance Co., 256 Nichol V. Bestwick, 455 Nichol V. Thompson, 110 Nicholson v. Willan, 226 NichoUs V. Wilson, 154 Nicklin v. Williams, 7, 60 TABLE OF CASES. XXIX NicoU t'. Gi-eaves, 159 Nightingal v. Devisme, '24(3 Nisbet V. Smith, 244 Koke V. Ingham, 438 Nordenstrom v. Pitt, 422 North V. Musgrave, 2 North V. Wingate, o North British, &c., Ins. Co. v. Moffatt, 255 North of England Ins. Association v. Armstrong, 265 Northam v. Hurley, 5, 342 Nosier v. Hunt, 144 Nosotti V. Page, 162, 163 Newell V. Roake, 44, 339 Nowlan V. Ablett, 159 Newman v. Bernard, 320 Nutting V. Herbert, 148 Oa kley (Lord) r. Kensington Canal Co. , 63 Ocean Wave, The, 223 Ockenden v. Heuly, 142 Ogle V. Earl Vane, 119, 122 Ognell's case, 319 O'Halloranv. Studdert, 83 O'Hanlan v. G. W. Ry. Co., 220, 221 Okell V. Smith, 129 Oldershawr. Holt, 73, 186, 199 Onslow V. Orchard, 435, 437 Orme v. Broughton, 389 Orpheus (The), 225 Orme v. Broughton, 135 Orr V. Churchill, 99 Orr V. Maginnis, 179 Owen V. Routh, 123, 125, 126 Owen V. Wilkinson, 82 Overend, Gurney & Co., Re, ex parte Lintott, 113 Owen V. Burnett, 226 Owen V. Legh, 324 Packham v. Newman, 462 Pagani v. Gandolfi, 157 Page V. Cowasjee, 314 Page V. More, 188 Page V. Newman, 108 Paine v. Pritchard, 296 Paler v. Hardyman, 307 Palmer v. Blackburn, 265 Parish v. Wheeler, 300 Park V. Hammond, 412 Parker v. G. W. Ry. Co., 207 Parker v. James, 221 Parker v. Lawrence, 439 Parkes v. Prescott, 42 Parkes v. Smith, 79 Parkins v. Hawkshaw, 167 Parkins v. Scott, 42, 371 Parmeter v. Todhunter, 260 Parry v. Aberdein, 258 Parsons v. Gill, 448 Parsons v. Sexton, 72 Passenger v. Thorbui-n, 133 Patridge v. Emson, 3 Patterson v. Ritchie, 264 Paul V. Goodluck, 353 Paul V. Jones, 244 Pawly V. Holly, 308, 433, 443 Payne v. G. N. Ry. Co., 394 Payne v. Haine, 195, 196 Paynter v. Walker, 83 Peacock v. Monk, 148 Peacock v. Nichols, 303 Pearce v. Ornsby, 364 Pearse v. Coaker, 339 Pearson v. Henry, 399 Pearson v. lies, 363 Pearson v. Lemaitre, 24, 75, 364, 372 Redder v. The Mayor of Preston, 85 Pedley v. Frampton, 448 Peek V. North Staffordshire Ry. Co., 228, 229 Pell V. Shearman, 199 Pembroke (Earl of) v. Bostock, 282 Penley v. Watts, 56, 242 Penu V. Jack, 27 Pennell v. Woodburn, 53 Penniall i\ Harborne, 139 Penny v. Foy, 244 Penrice v. Penrice, 280, 281 Penson v. Goodey, 433 Pen ton v, Browne, 317 Percival v. Stamp, 316 Perreau v. Bevan, 355 Perry v. Edwards, 240 Persival v. Spencer, 440 Peter v. Rich, 249 Peters v. Hey ward, 307 Peterson v. Ay re, 1.0 Petre v. Buncombe, 109, 247 Petrie v. Hannay, 447, 450 Pet tit V. Addington, 419 XXX TABLE OF CASES. Phelps r. London & N. W. Ry. Co., 231 Phillips V. Clark, 228 Phillips V. Hayward, 303 Phillips V. Hatfield, 460 Phillips V. Jones, 307, 444 Phillips V. Whitsed, 323 Philpotts V. Evans, 117, 121 Pianciani2>. London & S. W. Ry. Co., 226 Pickwood V. Wright, 440 Pierce v. Fothergill, 172 Pierce v. Williams, 47 Piggott V. Birtels, 324, 329 Pilkington v. Cooke, 359 Pindar v. Wadsworth, 342 Pinhorn v. Tuckington, 108 Pirie v. Steele, 267 Pitcher v. Livingston, 146 Pitcher v. Roberts, 114 Planche ^•. Colbum, 155 Planck V. Anderson, 356 Player v. Warn, 435 Playford v. United Kingdom Electric Telegraph Co., 232 Plevin r. Henshall, 302 Pleydell v. Earl of Dorchester, 461 Plomer v, Ross, 167 Plumer v. Brisco, 354 Plummer v. Whiteley, 186 Plunkett r. Cobbett, 363 Poingdestre v. Royal Exchange Assurance Co., 267 Pollard V. Herries, 179 Pontifex v. Bignold, 5 Pordage v. Cole, 157 Porter v. Gray, 320 Porter v. Han-is, 437 Porter v. Vorley, 409 Portmau v, Middleton, 13 Pott V. Flather, 119 Potter V. Merchants' Bank, 294 Potter V. Rankin, 260 Poulton V. Lattimore, 71 Pounsett V. Fuller, 136, 137 Pow V. Davis, 46, 52 Powell V. Graham, 398 Powell V. Gudgeon, 274, 275 Powell V. Hodgetts, 436 Powell V. Jessopp, 120 Powell V. Layton, 440 Powell r. Rees, 396 Powell V. Salisbury, 34 Power V. Whitmore, 269 Poynter v. Buckley, 325 Pozzi V. Shipton, 439 Prehn v. Royal Bank of Liverpool, 8, 21 , 118 Prescot, ex parte, 88 Prescott V. Truman, 150 Prices. G. W. Ry. Co., 109 Price V. Severn, 461 Prickett v. Badger, 155 Prince v. Moulton, 58 Pringle v. Wernham, 343 Pritchard v. Long, 336 Pritchet v. Boevey, 44, 422 Procidlove v. Twemlow, 324 Pryce v. Belcher, 417 Pujolas V. Holland, &6 Puller V. Stainforth, 215 Pulteney v. Warren, 337 Pym V. G. N. Ry. Co., 393, 394 QuiN V. King, 168 Rabone r. Williams, 85 Raikes v. Todd, 235 Raisin v. Mitchell, 39 • Randall v. Everest, 98 Randall v. Raper, 65, 133 RandeU v. Trimen, 48, 49 Ranger t^. Great Western Ry. Co., 152 Ralli V. Janson, 262, 263 Raphael v. Bank of England, 448 Rawlings v. Morgan, 194 Rawlinson v. Clarke, 103 Rawson v. Samuel, 94 Ray V. Lister, 97, 449 Raymond v. Fitch, 389 Rayne, ex parte, 225 Read v. Bonham, 258 Read v. G. E. Ry. Co., 394 Reason v. Wirdnam, 248 Reddie v. Scoolt, 380 Redfield v. Haight, 236 Redshaw v. Brook, 458 Reece v. Lee, 448 Rees V. Lines, 153 Rees V. Morgan, 320 Rees V. Watts, 83 Reeve v. Bird, 185 Reg. V. Cambridge Gas Light Co., 184 Reg. V. Fall, 442 TABLE OF CASES. XXXI Reg. V. Gibbons, 379 Eeg. V. Ilaslam, 183 Eeg. V. Lee, 183 Keg. V. Newman, 374 Reg. V. Virrier, 446, 448 Reg. V. Wells, 184 Reid V. Fairbanks, 287, 293, 296, 297 Reid V. Hoskins, 117 Reilly v. Jones, 104 Eeimer v. Ringrose, 258 Reindel v. Scbell, 102 Randall v. Hayward, 455 Revis V. Smith, 363 Reynolds v. Beerliag, 79 Reynolds v. Bridge, 100, 103 Reynolds v. Jones, 338 Re3rnolds v. Kennedy, 24 Rex V. Adames, 184 Rex V. Bed worth, 182 Rex V. Bradford, 183 Rex V. Carlile, 451 Rex V. Gouer, 2 Rex V. Grant, 448 Rex v. Guest, 183 Rex V. Hogg, 183 Rex V. Keat, 448 Rex V. Lower Mitton, 1S4 Rexi'. Miller, 183 Rex V. Peto, 169 Rex V. St. Nicholas, Gloucester, 183 Rex V. Sheriff of Essex, 355 Rhoades v. Lord Selsey, 106 Rhodes v. Rhodes, 110 Rice V. Baxendale, 220 Richards v. Barton, 136 Richards v. Richards, 171 Richards v. Rose, 456 Richardson v. Chasen, 135 Richardson v. Dunn, 53 Richardson v. Mellish, 61, 443, 450, 451 Richardson v. Nourse, 223 Richardson v. Robertson, 66 Richardson v. Williamson, 48 Richbell v. Alexander, 411 Ricketts v. Lostetter, 147 Ricketts v. Weaver, 339 Riddell v. Sutton, 399 Ridgway v. Hungerford Market Co., 156 Ridgway v. Stafford, 325 Rigby V. Hewitt, 37 Rigge V. Burbidge, 131 . Ripley v. M'Clure, 121 Ripley V. Scaife, 211 Ri.sk Allah Bey v. Whitehurst, 365 Roach V. Thompson, 47 Roberts v. Havelock, 1 53 Roberts v. Read, 63 Roberts v. Roberts, 370, 372 Roberts v. Thomas, 318 Robertson v. Ewer, 268 Robertson v. Wylde, 366 Robinson v. Bland, 111, 173 Robinson v. G. W. Ry. Co., 219, 220 Robinson v. Harman, 23, 69, 137 Robinson v. Learoyd, 184 Robinson v, London and S. W. Ry. Co., 231 Robinson v. Reynolds, 176' Robinson v. Robinson, 186, 188, 404 Robinson v. Vaughton, 317 Robson V. Godfrey, 152 Rochdale Canal Co. v. King, 342 Rochdale Canal Co. v. Radclifife, 342 Roden v. Eyton, 325 Rodgers v. Maw, 78, 246 Rodgers v. No will, 418 Rodgers v. Parker, 321, 324 Rodney v. Strode, 437 Rodrigues v. Melhuish, 223 Rodriguez v. Tadmire, 347 Roffey V. Greenwell, 172 Rogers v. Price, 400 Rogers r. Spence, 408 Rogers v. Stephens, 179 Rogerson v. Ladbroke, 80 Roles V. Rosewell, 166 Rolin V. Steward, 6, 416 Rolph V. Crouch, 55, 145, 147 Romney Marsh v. Trinity House, X. Ronneberg v. Falkland Islands Co., 46 Rootht'. N. E. Ry.Co., 229 Rose V. Bowler, 398 Rose V. Groves, 343, 369, 418, 421 Rose V. Hart, 88 Rose V. Mills, 343 Rose V. Sims, 88 Rose V. Tomblinson, 424 Rosetto V. Gurney, 257, 258 Rosewell v. Prior, 63 Ross V. Adcock, 357 Ross V. Thwaite, 273 XXXll TABLE OF CASES. Roux V. Salvador, 257, 2G1, 2G5 Rowcliffe V. Murray, 349 Rowlands v. Samuel, 53 Rowley v. Adams, 403 Rubery v. Stevens, 402 Rudge V. Birch, 85 Rumbclow V. Whalley, 163, 313 Rundle t'. Little, 313 Russel V. Ball, 455, 450 Russell V. Bell, 88 Russell V. Palmer, 360 Russell V. Sa da Bandeira, 152 Rustell y. Macquister, 361 Ryau V. Massy, 1G8 Sabin v. Long, 437 Sadlers' Co. v. Badcock, 252 St. Aubyn v. St. Aubyn, 186 Sainter v. Ferguson, 100, 104 Samuel v. Hoder, 320 Sandback v. Thomas, 43, 347 Sanders v. Kentish, 123 Sandford v. Alcock, 446, 447 Sandfordi'. Clarke, 448, 453 Sandford v. Porter, 448 Sandiford v. Bean, 449 Sankey Brook Coal Co. v. Marsh, 87 Sanquer v. London and S. W. Ry. Co., 220 Sapsford v. Fletcher, 188, 189 Saunders w. Mills, 373 Saville v. Roberts, 345 Schofield V. Corbett, 83 Scott V. Bevan, 170 Scott V. Henley, 356 Scott V. Rayment, 464 Scott V. Staley, 167 Scott V. Waithman, 354 Scottish Marine Assurance Co, v. Turner, 260 Scougull V. Campbell, 447 Seale v. Hunter, 454 Searlew. Scovell, 276 Sears v. Lyons, 24 Seaward v. Willcock, 140 Sedgwicke v. Richardson, 3 Sedgworth v. Overend, 298 Seeger v. Duthie, 79 Segar v. Atkinson, 398 Seller v. Work, 414 Semayne's Case, 315 Semenza v. Brinsley, 86 Shadwell v. Hutchinson, 334 Sharp V. Gladstone, 265 Sharp V. Powell, X. Shaw 0. Arden, 70 Shaw V. Holland, 122 Shaw V. Kay, 192 Shaw V. Marq. of Worcester, 169 Sheape v. Culpeper, 320 Sheels v. Davies, 70 Sheen v. Rickie, 432 Shephard v. Hale, 442 Shepherd v. Charter, 425 Shepherd v. Johnson, 123 Sheriff t'. James, 327 Sherrod v. Langdon, 135 Shilcock V. Passman, 360 Shipley V. Hammond, 103 Shipman v. Thompson, 83 Shipton V. Casson, 79 Shirley v. Jacobs, 66 Short V. Coffin, 450 Short V. Kalloway, 46, 55 Short V. M'Carthy, 61 Short V. Skipwith, 415 Shortridge «;. Lamplugh, 64, 193 Sicklemore v. Thistleton, 431 Siggers v. Lewis, 172 Sikes V. Weld, 136, 138 Simons v. G. W. Ry. Co., 229 Simpson v. Clarke, 176 Simpson v, Hartopp, 328 Simpson v. Lamb, 79 Simpson v. Robinson, 363, 365 Simpson ?j. Savage, 332 Simpson v. Scottish Union Insurance Co., 256 Sinclair v. Bowles, 154 Sinclair v. Eldred, 43, 347 Singleton v. Eastern Counties Ry. Co., 38 Singleton v. Williamson, 37 Sippora v. Basset, 419 Six Carpenters' Case, 327 Skelton v. London and N. W. Ry. Co., 37 Skull V. Glenister, 336 Slack V. Lowell, 106 Sleap V. Newman, 403 Sleat V. Fagg, 226 Slipper V. Stidstone, 82 TABLE OF CASES. XXXlll Sloman v. Walter, 100 Slowley V. Eveley, 439 Smallpiece v. Bockingham, 452 Smeed i». Foord, 14, 17 Smethurst v. Woolston, 125 Smith V. Allison, 74, 313, 384 Smith V. Ashforth, 322, 325 Smith V. Bond, 168 Smith V. Broomhead, 168 Smith V. Brown, 225 Smith V. Compton, 45, 57, 145, 244 Smith V. Dickenson, 100 Smith V. Dobson, 39, 43 Smith V. Douglas, 193 Smith V. Hay ward, 159 Smith V. Hodson, 88 Smith V. Holbrooke, 317 Smith V. Howell, 56, 65, 238, 242 Smith V. Humble, 189 Smith V. Jeffs, 151 Smith v. Kingsford, 159 Smith V. Malings, 148 Smiths). McGuire, 211, 212 Smith V. Peat, 190, 193, 196 Smith V. Ryan, 103 Smith V. Scott, 373 Smith V. Tett, 279, 341 Smith V. Thackerah, 7 Smiths. Thompson, 156, 158 Smith V. Wright, 273, 327 Smithey v. Edmonson, 168 Snow V. Como, 439 SoUers v. Lawrence, 397 Solly V. Hinde, 176 Solomon v. Turner, 178 Sondes, Lord v. Fletcher, 21 South all V. Rigg, 176 Southampton Dock Co. v, Richards, 422 Southampton Steam Colliery Co. v. Clarke, 213 Southernwood v. Ramsden, 378 So ward v. Leggatt, 193 Sowell V. Champion, 317, 462 Spark V. Heslop, 236, 237 Sparkes v. Martindale, 45, 237 Sparrow v. Paris, 100, 104 Speck V. Phillips, 65, 273 Spedding i'. Novell, 51 Spencer v. Goter, 446, 447, 448 Spicer r. Teasdale, 449 Spiller V. Westlake, 178 Spotswood V. Barrow, 156 Spring V. Chase, 144 Staats V. Ten Eycks Exrs., 146 Stackwood v. Dunn, 82 Stadhard v. Lee, 152 Stammers v. Elliott, 93 Standeven v. Murgatroyd, 85 Staniforth v. Lyall, 216 Stanley v. Towgood, 195 Stannard v. UUithorne, 360 Stanton v. Styles, 79 Startups. Cortazzi, 128, 127 Staynrode v. Locock, 431 Stearine Co. v. Heintzmann, 413 Stein V. Ygle.sias, 176 Stephens, ex parte, 96 Stephens v. Wilkinson, 177 Stettin, (The), 224 Stevenson v. Lambard, 148 Stevenson ■;;. Montreal Telegraph Co., 232 Stevenson v. Newnham, 323, 431 Stewart v. Cauly, 119 Stewart v. Greenock Insurance Co., 260 Stewart v. Steele, 266, 267 Stirason v. Farnham, 6, 356 Stimson v. Hall, 79, 93, 95 Stirling v. Maitland, 157 Stocken's Case, 113 Stoessiger v. S. E. Ry. Co., 227 Stokes V. City Offices Co., Lia>., 465 Stoes V. Cooi^er, 185 Stone V. Stone & Appleton, 382, 387 Sti-acey v. Deey, 82 Stratton v. Mathews, 47 Street v. Blay, 71, 129 Strong V. Keane, 151 Stroud V. Dandridge, 405 Strutt V. Farlar, 139 Stuart V. Isemonger, 223 Stuart V. Lovell, 364 Stubbs V. Parsons, 189 Sturt V. Marquis of Blandford, 383 Sturtevant v. Ford, 176 Sully V. Duranty, 41 Sunderland Parish i\ Sunderland Union,! 184 Suse V. Pompe, 178 Sutton i>, G. W. Ry. Co., 207 XXXIV TABLE OF CASES. Swaine?;. G. N. Ry. Co., 464 Swatman v. Ambler, 182, 189 Swayne v. White, 77 Sweetland v. Smitb, 139 Swinfen v. Bacon, 188 Swinnerton v. Marquis of Stafford, 361 Swire V. Leach, 300, 326 Symmons v. Blake, 364 Symmons v. Knox, 79 Symonds v. Page, 43, 339 Tancred v. Allgood, 356 Tancred v. Leyland, 323 Tanner v. Woolmer, 235 Tarpley v. Blabey, 373 Taylor v. Bennett, 343 Taylor v. Helps, 462 Taylor v. Henniker, 323 Taylor v. Higgins, 245 Taylor v. Holt, 113 Taylor v. Mills, 244 Taylor v. Neri, 82 Taylor v. Nesfield, 430 Taylor v. Parry, 298 Taylor v. Taylor & Welters, 387 Taylor v. Waters, SO Taylor v. Young, 238 Taylor v. Zaniira, 188 Tebbs V. Barron, 440 Tegetmeyer v. Lumley, 83 Tempest v. Kilner, 120 Templer v. M'Lachlan, 69 Terry v. Hutchinson, 373 Tetley v. Wanless, 162, 164, 165, 450 Thame v. Boast, 162 Thellusson v. Fletcher, 425 Theobald v. Railway Passengers' Assur- ance Co., 250, 251 Thetford (Mayor of) v. Tyler, 183 Thomas v. Clarke, 208, 210, 212 Thomas v. Fredricks, 460 Thomas v. Harris, 458 Thomas v. Russell, 348 Thompson v. Gibson, 63, 334 Thompson v. Gillespy, 96 Thompson v. Hudson, 101 Thompson v. N. E. Ry. Co., 37 Thompson v. Nye, 374 Thompson v. Parish, 80 Thompson v. Percival, 429, 439 Thompison v. Pettitt, 309 Thompson r. Rowcroft, 268 Thompson v. Shanley, 438 Thompson v. Wood, 322, 419 Thornton v. McKewan, 235 Thornton v. Place, 72 Thorogood v. Bryan, 40 Thorpe v. Thorpe, 21, 77, 90 Throckmorton v. Crowley, 80, 93 Thynue v. Thynne, 281 Tighe V. Crafter, 169 Times Fire Assurance Co. v. Haw'.ene^v v. Daverell, 3 Camp. 451; Baillie v. Kell, 4 Bingh. N. C. 638. (y) Turner v. Diaper, 2 M. & G. 241. (2) Newton v. Forster, 12 M. & W. 772. \a) Per Ld. Ellenboroiigb, Le Loir v. Bristow, 4 Camp. 134 ; semhle Ctewortk V. Pickford, 7 M. & W. 314. (6) Bamford v. Harris, 1 Stark. 343. 72 INFERIORITY OF ARTICLE. in which a different principle was adopted. The one was a contract for supplying a chapel with hot air (c) ; the other was for slating a house (d). In both cases the work had not been done according to contract, and it was laid down by Tindal, C. J., and Parke, B., that the measure of reduction should be the necessary cost of making the work conform to the contract. It is evident that this rule differs very much from the former one. A thing may be very valuable in itself, but if it is to be altered into something different, the cost of doing so may absorb its whole price. Which rule is correct ? It is suggested that both rules may be so, according to the cases to which they are applied. One important element in this inquiry will be, could the subject-matter of the contract have been returned or not? If it could, then, as the defendant has kept it of his own free will, he ought to pay for it as much as the plaintiflp could have sold it for, if he had taken it back; that is, its real value. But there are two cases in which the defendant cannot return it. The one is where the sale is of a specific chattel, upon which the owner has had an oppor- tunity of exercising his own judgment, and which is bought with a warranty (e). The other, where labour has been expended upon the defendant's own property, as, for instance, his materials or his land. In the latter case the thing done may in itself possess very great intrinsic value, as, for instance, if a tailor should cut cloth into a coat which would fit any but the owner, or a builder should erect a coach-house where he had been directed to make a stable. But it is clear that the thing would in neither case be of any value to the owner, till it was altered into what he wanted. The cost of altering it would be the only fair measure of reduction. It will be observed that both the cases cited come under this latter head. The former case, viz., the sale of a specific chattel with warranty, would admit of different considerations. It might be utterly impossible to alter it, as^ for instance, to change a hack into a hunter. The question would then be, what was (c) Cutler V. Close, 5 C. & P. 3.37. (d) Thornton v. Place, 1 M. & Rob. 218. (e) Parsons v. Sexton, 4 C. B. 899 ; Dawson v. Collis, 10 C. B. 523 ; 20 L. J. C. P. 116. . MITIGATION OF DAMAGES. 73 it worth to the purchaser as it was. This would depend upon what he could get for it, and so would come under the former rule as to real value. On the other hand it might be capable of alteration at a very exorbitant cost, as, for instance, a defec- tive machine. Ought the purchaser to sell it for what it would fetch, supposing it to be useless to him in its present condi- tion, or may he alter it to suit his requirements ? This would probably depend upon the facts of each case. If he could without very great loss and inconvenience procure another, it would perhaps be held that he ought to do so, and that great expense incurred in alterations could not be treated as the necessary result of the plaintiff's breach of warranty, when by a smaller outlay he could have obtained a perfect article. But it might be impossible to procure another, or the cost and delay might be so great as to warrant him in altering it at a very great expense ; if so, it might fairly be held that the exception laid down in the above cases applied, and that the measure of reduction was the cost of alteration. It must be owned, however, that such a case would hover upon the limits of the rule laid down against reduction of damages in Mondel V. Steel if). In the cases hitherto under discussion the plaintiff has been Evidence in claiming payment on account of something done by him for ^plfienrinkrvr the defendant, and the evidence has gone to show that the inflicted by defendant had not received all the benefit for which he had ^ ^"' '^"*' bargained. On exactly the same principle, where the action is to recover damage for some loss arising from the defendant's acts, evidence is admissible to show that the injury is not so great as would at first appear () Calcraft v. Ld. Harhorough, 4 C. & P. 499. (5) Leedi v. Cook, 4 Esp. 256. (r) Irving v. Greenwood, 1 C. & P. 350. (*) Arden v. Goodacre, 11 C. B. 371, 377 ; 20 L. J. C. P. 184. SET-OFF. V.':) Libel. Seduction, aggravation, evidence on this score will also be admissible in reduction of damages. Hence in an action for false imprison- ment, evidence may be given of a reasonable suspicion that the plaintiff had been guilty of felony, without any attempt at setting up a justification {t). [And if the plaintiff was given into custody for an offence not justifying an arrest, evidence may be given of the offence («).] It is in the nature of an apology for the defendant's conduct (x). And so in cases of libel, the defendant may give any evidence in reduc- tion of damages which goes to prove the absence of malice ( y), or he may show previous provocation received from the plain- tiff {z). And in actions of seduction, the offence may be deprived of its wanton and heartless aspect by showing the loose cha- racter of the female (a). It would be easy to multiply illustrations upon all the heads just mentioned. Those adduced, however, are sufficient to explain the principles upon which damages may be reduced. We shall have occasion to go more fully into the subject in discussing the different species of actions. The law of set-off does not, perhaps, come strictly within Set-ofF, the scope of a work on damages, since it is merely a cross- action, which, by means of a statute, may be tried at the same time with the principal suit. Still it is a means by which the plaintiff's claim may be cut down or negatived ; and as it is important with a view to damages that he should know what demands may be set up against him, it may be as well to point out the chief bearings of the subject. The law of set-off in ordinary cases, and that of mutual credit in bankruptcy, differs in some important particulars, which makes it advisable to consider them separately. Stat. 2 G. II. c. 22, s. 13, enacts, " That where there are mutual debts between the plaintiff and defendant, or if either party sue or be sued as executor or administrator, where there are mutual debts between the testator and intestate and either party, one debt may be set against the other, and such matter False imprison- ment. Statutes 2 G. II. c. Vi s. 13 90 (t) Chinn V. Morris, 2 C. & P. 361. [(m) Linford v. Lake, 3 H. & N. 276 ; 27 L. J. Ex. 334.] {x) Per Ld. Abinger, Warwick v, Foulkes, 12 M, & W, 507. (y) Pearson v. Leniaitre, 5 M. & G. 700. {z) May V. Brown, 3 B. & C. 113. (a) Batnfieldv. Massey, 1 Camp. 460 ; Daddy. Norris, 3 Camp. 519. IN WHAT ACTIONS SET-OFF IS ALLOWABLE. 8G. IL C.24. Must be pleaded. No set-off in actions for un- liquidated damage. be given in evidence upon the general issue, or pleaded in bar as the nature of the case shall require." This statute was made perpetual by 8 G. II. c. 24, which further enacted, to remove doubts which had arisen, "That mutual debts may be set against each other, in the manner therein mentioned, notwithstanding that such debts are deemed in law to be of a different nature ; unless in cases where either of the said debts shall accrue by reason of a penalty contained in any bond or specialty; and in all cases when either the debt for which the action hath been or shall be brought, or the debt intended to be set against the same hath accrued, or shall accrue, by reason of any such penalty, the debt intended to be set off shall be pleaded in bar, in which plea shall be shown how much is truly and justly due on either side ; and in case the plaintiff shall recover in any such action or suit, judgment shall be entered for no more than shall appear to be truly and justly due to the plaintiff, after one debt being set against the other as aforesaid." I need hardly observe that now set-off must always be specially pleaded (b). To ascertain whether any particular claim may be the sub- ject of a set-off under the above statutes, it is necessary to inquire, first, in what actions the plea is admissible ; secondly, what is the nature of the demand which may be set off ; thirdly, at what time it must be due ; fourthly, in whose right it must become due. 1. The statute only allows debts to be set off; therefore the plea is bad when the action is for breach of agreement, where the damages are unliquidated, as for instance on a promise to indemnify (c), though contained in a bond, con- ditioned for the payment of a certain penalty (d); on a policy of insurance for an average or partial loss (e), even though the amount has been adjusted at a fixed sum before action brought ; because the adjustment is only a means for enabling the jury to fix the amount for which the plaintiff sues in the (6) Reg. T. T. 1853, r. 8. (c) Hard castle v. Nethencood, 5 B. & A. 93. (d) Attu-oolly. Attwooll, 2 E. & B. 21. (e) Grant v. Boyal Exchange Co. , 5 M. & S. 439 ; Castelli v. Boddhigton, 1 E. & B. 66 ; 22 L. J. Q. B. 5 ; affirmed in error, 1 E. & B. 879 ; 23 L. J. Q. B. 31. WHAT DEMANDS MAY BE SET OFF. / / shape of unliquidated damages, and is not an amount binding upon the parties in all events (/). Nor where the action is for not accounting {g) ; for not replacing stock (A) ; for not applying money paid to meet an acceptance (?) ; for not paying over a bill to the person for whose use it was re- mitted (/<;) ; for refusing to give a bill of exchange in payment for goods sold, the time of credit not having expired {!). Still less can it be pleaded to actions of tort : such as case, trover, detinue, trespass, or replevin {m). The same rule applies as to actions by the sheriff upon a bail bond ; but it has been said that when the action is brought by the assignee in his own name a set-oflF might be allowed (w). Where, however, the action is on a bond, the condition of which is for the payment of a liquidated sum, such as an annuity, a set-oflF will be allowed {o). [And though the declaration be special and include a claim for unliquidated damages, a defendant may sever so much of the plaintiff's claim as is liquidated, and plead a set-off as to that (jt;).] 2. The same principles exactly apply to the demand which Nor where the is made the subiect of set-off. The rule by which we are to set-off is itself ^ ^ T T i-.a matter of determine whether or not a demand can become the subject unliquidated of a set-off, is by inquiring whether it sounds in damages ; damage, whether the demand is capable of being liquidated, or ascer- tained with 'precision at the time of pleading {q). The law allows the value of goods sold without any price having been named, to be treated as a set-off; but in that case the law presumes that the goods were sold at the then market value, (/) Ludie V. Bushly, 13 C. B. 864. {g) Birch v. Depeyster, 4 Camp. 385. \h) GilUngham v. Waslett, M'Clell. 198. (i) Bell V. Carey, 8 C. B. 887. {h) Thorpe v. Thorpe, 3 B. & Ad. 580, 584. (I) Hutchinson v. Reid, 3 Camp. 329. (m) B. N. P. 181 ; Sapsford v. Fletcher, 4 T. R. 511 ; Laycock v. Tuffnell, 2 Chitt. Rep. 531. (n) Hutchinson v. Sturges, Willes, 261 ; B. N. P. 179. (o) Collins V. Collins, 2 Burr. 820. [(p) Cramptonv. Waller, 3 E. &. E. 321 ; 30 L. J. Q. B. 19; Brown v. Tibbits, 11 C. B. N. S. 855 ; 31 L. J. C. P. 206. A set-off may be pleaded to an action on an award ; and where a pei-son orderrd to pay money under an award had a cross demand, a rule to pay the money awarded was refused ; Sivayne v. White, 31 L. J. Q. B. 260.] (q) Per Tindal, C. J., Morlcyv. Inglis, i Bingh. N. C. at p. 71. 78 WHAT DEMANDS MAY BE SET OFF. Guarantee. Penalty. which is easily ascertained (r). And the price of goods bar- gained and sold, which the plaintiff has refused to receive, may be set off against a demand by him for goods delivered (s). Where in such a case the defendant has resold the goods, it has been decided by Lord Ellenborough, that an action for goods bargained and sold would still lie (0- But this case, after being several times doubted, has been overruled (?0- As the defendant's remedy then is only by an action for unliqui- dated damages, it cannot form a subject of set-off. Where the goods of the defendant have been taken in execution, and sold for a debt for which the plaintiff alone was answerable, as between himself and the defendant, the Court of Exchequer intimated a strong opinion that the amount for which they sold might be set off by the defendant as money paid to the use of the plaintiff {x) . No set-off can in general be claimed in respect of a demand upon a guarantee, even after the debt has become due, and while it remains unpaid by the principal (y) ; but where the defendant became a shareholder and director of a company, upon receiving from the plaintiff an indemnity against all expenses which he might incur in consequence of acting as such, it was decided that he might, in an action against him, set off the money he had paid for travelling expenses in attending the meetings of the company as director (2). Nor for damages arising fi"om an injury to goods (a) ; or from breach of covenant, as, for instance, to deliver goods (5), or to repair (c), or to insure (d) ; nor on account of a penal sum, which was stipulated to be paid, on breach of agreement, by the plaintiff to the defendant (e). But when the sum is not a penalty but liquidated damages, as where it was agreed (r) Per Erie, J. , Castelli v. Boddington, uhi sup. (s) Dunmore v. Taylor, Feake, 41. (0 Mertens v. Adcocic, 4 Esp. 251. (m) Lamond v. Davall, 9 Q. B. 1030. (x) Rodgers v. Maw, 15 M. & W. 444 ; but see Moore v. Pyrlce, 11 East, 52. (y) Morley v. Inglis, 4 Bingh. N. C. 58. (z) Hutchinson v. Sidney, 24 L. .J. Ex. 25. (a) Freeman v. Hyett, 1 W. Bl. 394; Doivslandv. Thompson, 2^. Bl. 910. (h) Hoiolet V. Strickland, Cowp. 56. (c) Weigall v. Waters, 6 T. R. 488. \d) Gillett V. Mawman, 1 Taunt. 137. (c) Daviesv. Pcnton, 6 B. & C. 216. WHAT DEMANDS MAY BE SET OFF. 79 that if work was not completed at a stated time, a weekly sum should be paid till it was completed, this may be set oflF (/). And the plea must state exactly what sum is due under the agreement, and this averment is material and traversable {g). [So in an action for freight the defendant cannot set off a Freight, claim in respect of damaged {h) or missing goods {i) ; nor for expenses incurred by reason of the captain's refusal to load a portion of the cargo, unless, indeed, they come under the head of demurrage fixed by the charter-party (7c).] When there is an entire contract to supply a particular Goods sold. amount of goods, the purchaser is not bound to take a smaller portion, but if he does take it, the value of such part may be set oflF against an action by him (/), though the defendant is liable to a cross-action for the breach of his contract. A judgment obtained by one party may be set off against Judgment. an action by the other party {in), or against another judgment, notwithstanding the plaintiff may also have a separate demand on one of the defendants (w), and though the judgments are in different courts (o). Nor does it make any difference that a writ of error is pending to reverse the judgment {p). [And in an action on a judgment, a defendant may set off" another judgment by plea, even though the Court would not, on one party proceeding to execution, have interfered to allow a set- (/) Fletcher v. Dyche, 2 T. K. 32 ; DucUvorth v. Alison, 1 M. &W. 412 ; LeggeY. Harloch, 12 Q. B. 1015 ; and see Parkes v. Smith, 15 Q. B. 297. As to the rules for distinguishing between a penalty and liquidated damages, see post, p. 99, et seq. ( g) Synimons v. Knox, 3 T. R. 65. {(h) Dakin v. Oxley, 15 C. B. N. S. 646 ; 33 L. J. C. P. 115. In the United States a set-off is allowed in case of culpable sea damage : per Willes, J. , citing 1 Parsons on Maritime Law, 172, n.] [(J) Meyer v. Dresser, 16 C. B. N. S. 646 ; 33 L. J. C. P. 289. The claim cannot be set iip as an equitable defence ; Stimson v. Hall, 1 H. & N. 831 ; 26 L. J. Ex. 212 ; nor can the general law be altered by any alleged universal practice of merchants, not confined to any particular place or trade, to have the value of missing goods deducted from the freight. The law of set-off is a matter of procedure, and governed by the law of the country where the remedy is sought. lb. and Dakin v. Oxley, supra.] [(k) Seeger v. Biithie, 8 C. B. N. S. 45 ; 29 L. J. C. P. 253.] (I) SJiipton V. Casson, 5 B. & C. 378. (m) Stanton v. Styles, 5 Exch. 578. (n) Glaister v. Jieicer, 8 T. R. 69. (o) Barker v. Braham, 3 Wils. 396 ; Bridges v. Smyth, 8 Bingh. 29. {p) Reynolds v. Beerling, 3 T. R. 188, n. 80 SET-OFF. DEBT MUST BE DUB IN THE SAME EIGHT. Order of Nisi Prius. Set-off where the debtor promises to pay ready- money. Debt must Le due. off (/ v. Weldon, 2 B. & P. 354. {«) Per Ld. Eldon, ibid. 350. LIQUIDATED DAMAGES. 101 The facts in reference to which the above rules were stated were as follows. There were mutual agreements between the manager of a theatre and an actress, that he should pay her a certain weekly salary and travelling expenses, and that she should perform at his theatre, and comply with all its rules, and be subject to and pay all fines ; and that either of them neglecting to perform that agreement should pay to the other 200/. The action was for a refusal to perform. It was held that the 200/. was a penalty, otherwise a refusal to pay a trifling fine, or to do something which by the rules of the theatre was punishable by a fine, would have entailed the entire liability. [But if the larger sum is actually due and the creditor agrees to take a lesser sum, provided that sum is secured in a certain way and paid on a certain day, and that if those stipulations be not performed, he shall be entitled to recover the whole of the original debt, such remitter to his original right does not constitute a penalty, and a Court of Equity will not interfere to prevent it (u).] 3. It has been laid down broadly, " that where articles Where there are contain covenants for the performance of several things, and to^be^done."^^ then one large sum is stated at the end to be paid upon breach of performance, that must be considered a penalty" (x). This, however, must be limited to cases where it is apparent that the parties could not have intended the entire sum to be the ascertained damages for any breach. " Where the sum which is to be a security for the non-performance of an agreement to do several acts, will, in case of breaches of the agreement, be in some instances too large, and in others too small a compen- sation for the injury thereby occasioned, that sum is to be [(m) Thompson v. Hudson, L. R. 4 H. L. 1 ; 38 L. J. Ch. 431. This was decided in the House of Lords in opposition to the Master of the Rolls and the Lords Justices. Lord Westljury saicl, that any plain man walking the streets of London would have said that it was in accordance '!\'ith common sense, and if he were told that it would be requisite to go to three tribunals before getting it accepted, would have held up his hands with astonishment at the state of the law. In Lord Ashtown v. White, 11 Ir. L. R. 400, where a demise of land at a yearly rent of 187?., with usual clauses for distress and entry on non-payment, contained an agreement that so long as the lessee performed the covenant, the lessor would be content with the yearly rent of 93L, payable on the same days as the first reserved rent, it was held that the larger rent was not a penal rent, and that ejectment could be maintained on its non-payment.] (x) Per Heath, J., 2 B. & P. 353. 102 LIQUIDATED DAMAGES. considered as a penalty" (y). This view of an agreement is invariably taken where some of the breaches relate to pecuniary payments, which are in their nature ascertained. Kemhiey. The leading case upon this part of the subject is that of Farren. ^emlU V. Farrefi (z). There the defendant had engaged to act as principal comedian at Covent Garden for four seasons, conforming in all things to the rules of the theatre. The plaintiff was to pay him 3/. 6s. 8^. every night the theatre was open, with other terms. The agreement contained a clause that if either of the parties should neglect or refuse to fulfil the said agreement, or any part thereof, or any stipulation therein contained, such Pt^'ty should pay to the other the sum of 1000?., to which sum it was thereby agreed that the damages sustained by any such omission, &c., should amount ; and which sum was thereby declared by the said parties to be liquidated and ascertained damages, and not a penalty, or penal sum, or in the nature thereof. Notwithstanding these sweeping words, the Court decided that the sura must be taken to be a penalty, as it was not limited to those breaches which were of an uncertain nature and amount. And Tindal, C. J., said, " that a very large sum should become imme- diately payable, in consequence of the non-payment of a very small sum, and that the foi-mer should not be considered a penalty, appears to be a contradiction in terms ; the case being precisely that in which Courts of Equity have always relieved, and against which Courts of Law have in modern times endeavoured to relieve, by directing juries to assess the real damages sustained by breach of the agreement" {a). And the same decision was arrived at where the agreement was that the defendant should grant a lease, and the plaintiff iy) Per Bayley, J. , Davies v. Penton, 6 B. & C. 223 ; affirmed Horner v. Flintoff, 9 M. & W. 681 ; [Bimech v. Corlett, 12 Moo. P. C. 229 ; Eeindel V. Schell, 4 G. B. N. S. 97 ; 27 L. J. G. P. 146 ; Betts v. Burch, 4 H. & N. 506 ; 28 L. J. Ex. 267, where see^^er Bramwell, B., as to the effect of 8 & 9 Will. III. c. 11, s. 8.] (z) 6 Bingh. 141. (a) 6 Bingh. 148. Such an agreement, however, might be made, for it is laid down by Parke, B., 1 Exch. 665, "that it would be competent for the parties to make a stipulation to pay a certain sum on the non -performance of a covenant to pay a smaller sum ; but they must do so in express terms ; and if that be done, I do not see how the courts can avoid giving effect to such a contract. LIQUIDATED DAMAGES. 103 should execute a counterpart and pay the expenses ; for the mutual performance of which contract the parties bound themselves in the penalty of 500Z. to be recovered against the defaulter as liquidated damages (J), On the other hand, if there be a contract consisting of one or more stipulations, the breach of which cannot be measured, then the contract must be taken to have meant that the sum agreed on was to be liquidated damages, and not a penalty (r). And so it was held where a covenant for disso- f. lution of partnership between attorneys contained an agree- ment, " that the said J. S. will not within the next seven years carry on the business of an attorney within fifty miles from E., nor interfere with, solicit, or influence the clients of the late copartnership, and if the said J. S. shall in any re- spect infi-inge the present covenant, he the said J. S. shall pay the sum of 1000/. as liquidated damages, and not by way of penalty" (d). 4. There never was any doubt that if there be only one event Where there is upon which the money is to become payable, and there is no ""^^ °^^ ^^®^*' adequate means of ascertaining the precise damage that may result to the plaintiflF from the breach of the contract, it is perfectly competent to the parties to fix a given amount of (b) Boys V. A ncell, 5 Bingh. N. C. 390 ; Davies v. Penton, 6 B. & C. 216 ; Clmrrinyton v. Laing, 6 Bingh. 242 ; Beckham v. Drake, 8 M. & W. 846. (c) Per Parke, B., Atkyns v. Kinnier, 4 Exch. 776, 783. [So where a specified increased rent was to become ijayable on breach of any of the cove- nants in the lease ; Smith v. Ryan, 9 Ir. L. R. 235.] {d) Galsworthy v. Strutt, 1 Exch. 659; Raivlinson v. Clarke, 14 M. & W. 187. [So Reynolds V. Bridge, 6 E. & B. 528; 26 L. J. Q. B. 12. And where the form of the bond given upon the sale of a medical practice, was that if any of certain prohibited things were done, and the sum of 300/. paid, then the bond should be void ; that sum was held recoverable upon an infraction of the agreement ; Mercer v. Irving, E. B. & E. 5G3 ; 27 L. J. Q. B. 291. But it does not follow in every sxich case that a man may elect to break his engagement by paying for his violation of the contract. Therefore, where the condition of a bond given by a managing clerk to an attorney, after reciting an agreement that the clerk should give a bond not to prac- tise within a specified distance, was that if he did so practise, and should pay the sum of lOOOZ. , the bond should be void, a Coiu-t of Equity, carrying out the real intention of the parties, granted an injunction to prevent him from practising; Howard v. Woodward, 34 L. J. Ch. 47. But of coiu'se this was upon the plaintiff's undertaking not to sue upon the bond. A man cannot have his liquidated damages and his writ of injunction also ; Carnes V. Neshitt, 7 H. & N. 158 ; 30 L. J. Ex. 348. In the ordinary case of pay- ment of a deposit to be forfeited on the purchaser's failure to perform his contract, the vendor may retain it on such faihu-e, though his damage be not so great ; Hinton v. Sparkes, L. R. 3 C. P. 161 ; 37 L. J. G. P. 81J. 104 Use of the words ' ' liquidated damage" not conclusive. In cases or doubt, inclina- tion in favour of penalty. LIQUIDATED DAMAGES. compensation, in order to avoid tl,e difficulty (.). And M. v" hough the contract be one of indemnity as an insurance h",- ani it can be proved that the plaintiff has not been daranifted to the amount estimated (/). 5. The cases cited above (,) have overruled the doctrme laid down in ReiUy v. Jones (h), that the mere use of the words " liquidated damages " is decisive against the sum being held to be a penalty. The principle is, that although the f parties may have used the term " liquidated damages, yet it the Court can see upon the whole of the instrument taken together, that there was no intention that the entire sum should be paid absolutely 0:1 non-performance of any of the stipulations of the deed, they will reject the words and con- sider it as being in the nature of a penalty only (i). G. Where it is doubtful from the terms of the contract, whether the parties meant that the sum should be a penalty or liquidated damages, the inclination of the Court will be to view it as a penalty (k). But the mere largeness of the amount fixed will not, per se, be sufficient reason for holding it to be so {I). (e) Per Cresswell, J., Sainter v. Ferguson, 7 C B. 730 ; Fletcher v. Dyche, 2 T. R. 32. [Sparroio v. Paris, 7 H. &N. 594; 31 L. J. Ex. 137. Astipu- lation for interest on purchase-money, at a rate increasing with the delay in payment, has been held not to be in the nature of a penalty to secure punctual payment'; Herbert v. Salisbury and Yeovil Ry. Co., L. R. 2 Eq. 221. But if "mortgage interest is 4 per cent. , with an agreement that if it is not paid punctually 5 per cent, shall be paid, that is in the nature of a penalty against which equity will relieve ; lb., per Lord Romilly.] (/) Irving v. Manning, 6 C. B. 39L ig) Ante, p. 101. (k) 1 Bingh. 302. (t) Per Parke, B., Green v. Price, 13 M. & W. 701 ; affirmed, 16 M. & W. 346 ; Cole v. Sims, 23 L. J. Ch. 258. [The use of the expre.ssion "penalty," or "liquidated damages," signifies nothing, the real intention of the parties having to be ascertained. See Sparrow v. Paris, 7 H. & N. 594 ; 31 L. J. Ex. 137 ; per Bramwell, B., Belts v. Burch, 4 H. & N. at p. 510 ; 28 L. J. Ex. at p. 271 ; and Dimech v. Corlett, 12 Moo. P. C. 299.] [k) Barton v. Glover, Holt, N. P. C. 43 ; Crisdee v. Bolton, 3 C. & P. 243. (I) Ibid., and per Lord Eldon, Astley v. Weldon, 2 B. &. P. 351 ; [and per Lord Romilly, Herbert v. Salisbury and Yeovil Ry. Co., L. R. 2 Eq. 221.] CHAPTER IV, INTEREST. 1. At Common Law. I 3. By Statute. 2. As Damages. I The nest point of a preliminary nature which requires notice, is the right to recover interest. This right exists in a great number of actions, but I have thought it better, for the sake of clearness, to place the whole subject before the reader in a single view. Interest is recoverable, either upon the original cause of action, or again upon the amount of the judgment. It may also arise either at common law, or by statute. I. First, then, as to interest at common law upon the interest at com- original cause of action. ^•'^ i*^- It is now established as a general principle, that interest is allowed by law only upon mercantile securities, or in those cases where there has been an express promise to pay interest, or where such promise is to be implied from the usage of trade, or other circumstances (a). 1. As to the case of bills of exchange and promissory notes, On bills and this rule has never been doubted. Some distinctions, however, '^*'*^^- prevail as to the time from which interest is to be computed, and the rate at which it is to be calculated, where any part of the contract has been entered into abroad. This subject will be discussed at length, post, Chapter viii. 2. Cases in which there has been an express agreement in Express agi-ee- words to allow interest, are, of course, quite clear. Where, ™^°*- however, A. and B., who had jointly and severally granted an annuity, mutually agreed each to pay one half of it, and (a) Per Abbott, C. J., Higgins v. Sargent, 2 B. & C. 349. 106 Implied agree- ment. Compound interest. Where payment to be made by biU. INTEREST. to indemnify tlie other against all actions, suits, charges, dama-cs, demands, sums of money and expenses, which either of them might incur through the default of the other m paying his just share ; it was held that one who had paid more "than his just share was not entitled at law to interest (as interest and not as damages) upon the surplus. The Court said, " The contract is to pay the money and damages ; there is no express contract to pay interest, nor any course of dealing from which such a contract can be implied " (5). 3. Where parties have acquiesced in a course of dealing, in which interest was exacted, they will be assumed to hare con- tracted to pay it (c) ; and in this way even compound interest may be charged, as long as the accounts remain open (d). But although compound interest may be charged, by means of half-yearly rests, where such a practice is assented to, it is not sufficient to show that such has been the usage of the plaintiff, without proving that the defendant was acquainted with it (e). And even in the case of merchants' accounts where this system prevails the plaintiff can recover no more than the principal upon the last balance, in which there is no new account, and no new transaction, however long it may be before the action is brought to recover the balance ; and the jury cannot give interest, still less compound interest, upon the balance (/). Again, where a party undertakes to pay a debt by means of a bill or note, which would, if given, bear interest, and fails to give the note, the debt will bear interest from the time the bill or note would have been due (g). But the contract to pay by bill must be clearly made out. Therefore, where the (I) Bell y. Free, 1 Swanst. 90. (c) Ex parte Williams, 1 Rose, 399. (d) Bruce v. Hunter, 3 Camp. 467 ; Neivell v. Jones, 4 C. & P. 124 ; Eaton V. Bell, 5 B. & A. 34 ; Fergusson v. Fyffe, 8 CI. & F. 121 ; [Mosse v. Halt, 32 Beav. 269 ; 32 L. J. Ch. 756]. (e) Dawes v. Pinner, 2 Camp. 486, n. ; Moore v. VoiigUon, 1 Stark. 487. [And see^ Williamson v. Williamson, L. R. 7 Eq. 542, where acquiescence in a banker's charge of 500Z. for a half year's commission on an overdrawn account, was held not to entitle the banker to make the same charge as of right in subsequent half years. Also Crosskill v. Bower, 32 Beav. 86 : 32 L. J. Ch. 540.] (/) Attwood V. Tayloi; 1 M. & G. at p. 301 ; Waring y. Cunliffe, 1 Ves. 99 ; Ex parte Bevan, 9 Ves. 223 ; Fergusson v. Fyffe, 8 CI. & F. 121. ig) Slack V. Lowell, 3 Taunt. 157 ; Marshall y. Poole, 13 East 98- Farr V. Ward, 3 M. & W. 25 ; Rhoades v. Lord Selsey, 2 Beav. 359 INTEEEST. 107 defendant undertook to pay money according to instructions to be received from a third party, and the instructions given were to pay it in discharge of a bill given by that third party, and then in the plaintiff's hands. Held that this was not an undertaking to pay by a bill, on which interest would run, though interest would run on a direct guarantee for payment of a bill (A). It is a question for the jury to say, whether the defendant had contracted to pay by bill or not, and slight evidence on this point has been held sufficient. Goods were sold to the defendant in January, and in April he wrote to the plaintiff saying, " The document you have sent me appears to be in the nature of a bill, and being payable to your order, is good in the market ; just what I wished to avoid. The document I have wished to give you was simply my promissory note, payable to yourself." Nothing was proved to have been said at the time of the contract about payment, and no demand for interest had ever been made, but the plaintiff claimed interest in his particulars of demand. It was decided that this letter offered some evidence of an agreement to pay by a note, upon which the jury were warranted in giving interest (i). The principle of these decisions of course is, that where a person promises to give a bill, which would bear interest, the law will imply an engagement, in case no bill is given, to pay interest as if it had been given (7c). It seems to be on the Bond with a same principle, that where a bond is given with a penalty in penalty, a larger amount, to secure payment of a sum of money, interest will be allowed even without an express stipulation. " The principal money due and the interest thereon may be considered as part of the penalty" {I). Because the object of the penalty is to secure him to whom it is given against all damage arising from default. Now one of the most obvious sources of damage is the loss of interest on the sura due (m). In one case (n) where interest was allowed in an (h) Hare v. Eickards, 7 Bingh. 254. (i) Davis v. Smyth, 8 M. &c W. 399. (k) 3 Taunt. 161. (I) Per Baylcy, J., Cameron v. Smith, 2 B. & A. 308. (m) Farqiikar v. Morris, 7 T. R. 124. (n) HcLlier v. Franklin, 1 Stark. 291. 108 INTEREST. Money payable on a fixed day. Awards. Interest re- coverable aa action on a bond, it is not stated that there was any penalty as there was in the instance last cited; but as the case was decided by Lord Ellenborough, and clearly did not come within any of the rules laid down by himself four years pre- viously (o), it may fairly be concluded that the bond was drawn in the ordinary form, so as to account for the decision. Where the defendants bound themselves to pay 1500/. in goods, by three equal payments, at three, five, and seven months; "in failure of which we acknowledge and hereby render ourselves liable to be sued and proceeded against for the amount ;" it was held that the instrument did not carry interest, on the ground that it had not the effect of a bond ; as there was no penalty, and the parties were bound only in the amount which was- to be actually paid (p). And in Hogan V. Page (q), it was decided that a single bond did not carry interest. Formerly it was thought, where a sum of money was agreed to be paid on a particular day, that on default interest from that day might be recovered without any express or implied contract to that effect (r). But this doctrine has now been overruled (s). It has, however, been always held that where, by an award, money is made payable on a certain day, interest ought to be allowed from that day, if payment was demanded at the place appointed (/). I cannot, on principle, explain this exception. Many apparent exceptions to the rule, that interest is only recoverable in the cases just mentioned, may be explained by distinguishing between interest recovered as part of the debt, and interest recovered as damages for its detention. For instance, interest on a deposit may be re- covered, if laid as special damage in an action for breach of agreement to sell an estate (?/). So it may be allowed as (o) Calton V. Brar/r/, 15 East, 223. (p) Foster V. Weston, 6 Bingh. 709. (q) 1 B. & P. 337. (r) Blaneyy. Hendricks, 2 W. Bl. 761 ; 3 Wils. 205, S. C . ; Shipley v. Ham- mond, 5 Esp. 114; ChalieY. Duke of York, 6 Esp. 45 ; He Havillandv. Bowerhank, 1 Camp. 50 ; Mountford v. Willes, 2 B. & P. 337. (s) Gordon v. Sivan, 12 East, 419; HigyinsY. Sargent, 2B. & C 348 • Page v. Newman, 9 B. & C. 378 ; Foster v. W€sto7i, 6 Bingh. 709. (t) Pinhorn v. TucJcington, 3 Camp. 468 ; Churcher v. Stringer, 2 B. & Ad. 777 ; Johnson v. Durant, 4 C. & P. 327. («) De Bernales v. Wood, 3 Camp. 258 ; Farqvhar v. Farley, 7 Taunt. 592. INTEREST. 109 damages in an action on a mortgage deed, after the day of default (x) ; or upon a contract to pay money upon a parti- cular day ( ij) ; or upon a covenant to indemnify a surety (z). And it is laid down as a general rule, that although it be not due ex contractu, a party may be entitled to damages in the form of interest where there has been long delay under vexa- tious and oppressive circumstances, in the payment of what is due under the contract {a). Interest cannot be recovered as such in an action against Cases in which the vendor of an estate, the sale of which has gone off, for recoverable. recovery of the deposit which has been lying idle (&) ; but it may be recovered as special damages for breach of the contract if so laid \c). But the principal and auctioneer stand on a different footing, and in an action against the latter to recover the deposit paid to him, interest cannot be recovered, even as damages, unless perhaps after demand and refusal on the contract being rescinded {cl). Not even when the auctioneer has made interest upon the money while in his hands ; and although he was requested by one of the parties before the completion of the contract to invest it (e). Interest is not due as such in an action for money secured on mortgage, after dav of default, without covenants to pay interest, but may be recovered as damages (/). Nor in an action for money lent, unless there has been an usage to that effect {g) ; or for money had and received (A), even though by the course of dealing (x) Diclcenson \. Earrison, i Price, 282 ; Atkinson v. Jones, 2 A. & E. 439 ; Price v. G. W. Ry. Co., 16 M. & W. 244. (w) Watl-ins v. Morgan, 6 C. & P. 661. (3) Petre v. Buncombe, 20 L. J. Q. B. 242 ; 2 L. M. & P. 107, S. C. (a) Hilhouse v. Davis, 1 M. & S. 169 ; Arnott v. Redfern, 3 Bingh. 353. [So in Equity, an executor or trustee who unnecessarily retains money which he ought to liave invested or paid over, will be made to pay interest. See per Lord Chelmsford, C, Blorjg v. Johnson, L. R. 2 Ch. at p. 228; 36 L. J. Ch. at p. 860. By the recent Attorneys' and Solicitors' Act, 1870, 33 & 34 Vict. c. 28, s. 17, taxing officers may allow interest on moneys of the client improperly retained by the attorney or solicitor, and on disbursements made by the latter for the client.] (6) Bradshaw v. Bennett, 5 C. & P. 48 ; Maberley v. Robins, 5 Taunt. 625. (c) De Bernales v. Wood, 3 Camp. 258 ; Farquhar v. Farley, 7 Taunt. 592. (d) Lee v. Munn, 8 Taunt. 45. (e) Harinr/ton v. Hoggart, 1 B. & Ad. 577. {/) Ante, p. 108. (g) Calton v. Bragg, 15 East, 223 ; Shaiv v. Picion, 4 B. & C. 720. {h) Walker v. Constable, 1 B. & P. 306. 110 Foreign judg- ments. Tender ment into court. pay- INTEKEST. between the defendant and the person from whom the money was received to the plaintiff's use, the sum would have borne interest ; for " no right passed to the plaintiff but a right to demand 'the sum actually in defendant's hands" («). And it makes no difference that the money has been obtained by fraud (k). Nor in actions for money paid (l); or on an account stated {m) ; or for goods sold, even though to be paid for on a particular day (w), though it is otherwise where payment was to be made by a bill (o). Nor in an action for work and labour 0?) ; nor on money lying with a banker (q) ; nor upon a policy of insurance (r). [Nor are annuitants entitled to interest on the arrears of th-^ir annuities (s) ; nor partners to interest on money drawn out of the firm by a partner in excess of his share of the profits (t).'] Interest is not recoverable as such in an action upon a foreign judgment, where the subject of the claim is not one which would bear interest in this country (w). But it may be left to the jury to say, whether the plaintiff has used proper means to find out the defendant and enforce the judgment ; and if they find for him, they may give such interest as they wish {x). Interest does not run after a tender (y). And where a defendant, sued upon a debt which bears interest, wishes to pay money into court, he must pay the interest up to the time of the payment into court. If he merely pay interest up to the (t) Friihling v, Schrceder, 2 B. N. C. 79. (k) Crockford v. Winter, 1 Camp. 124. (I) Cai-r V. Edicards, 3 Stark. 1-32 ; Hicks v. Mareco, 5 C. k. P. 498. {m) Nichol v. Thompson, 1 Camp. 52, n. ; Chalie v. JDuke of York, 6 Esp. 45 ; Blaney v. Hendricks, 2 W. Bl. 761 ; contra, overruled ^^e?' Abbott, C. J., 2 B. & C. 349. (ra) Gordon v. Swan, 12 East, 419 ; Mountford v. Willes, 2 B. & P. 337, merely decides that if the jury allow interest, (which they clearly may do as damages,) the court wUl not disturb theii- verdict. See 2 Camp. 429. (o) See ante, p. 106. Ip) Trelawneyv. Thomas, 1 H. Bl. 303 ; Milsomy. Hay ward, 9 Price, 134. iq) Edwards v. Fere, 5 B. & Ad. 282. (r) Kinrjston v. M'Intosh, 1 Camp. 518 ; Bain v. Case, 3 C. & P. 496. [(s) Earl of Mansfield v. O^jle, 4 De G. & J. 41 ; Booth v. Covlton, 30 L. .T. Ch. 378 ; Blogg v. Johnson, L. R. 2 Ch. 225 ; 36 L. J. Ch. 859.] [(<) Rhodes V. Rhodes, Johns. 653; 29 L. J. Ch. 418; Meymott Y.Meym^tt, 31 Beav. 445 ; 32 L. J. Ch. 218.] («) Boran v. O'Reilly, 3 Price, 250; Atkinsony. Lord Braylrooke, 4 Camp. 380. (x) As damages it would appear. Bann v. Dalzell, 3 C. & P. 376 ; M'Clure V. Dunkin, 1 East, 436. (//) Bent V. Bunn, 3 Camp. 296. INTEREST. HI commencement of the action, the plaintiff may proceed for the difference (z). Interest must, in all other cases, be calculated np to the time Time up to of signing judgment («). Judgment is considered to be signed J^ computer for this purpose, when the incipitur is entered in the Master's book. The moment that entry is made, the plaintiff is entitled to receive his debt and damages, and an unascertained amount of costs. And this right is not affected by an alteration made in the amount at a subsequent period upon a motion {h). Interest recovered at law is always U. per cent. (c). Where Rate of interest. a contract has been made abroad, it will bear interest at the foreign rate till judgment signed, but only the legal interest of hi. per cent, from the time of signing judgment (rf). II. As to the cases in which interest is given by statute, J,';*^ f * ^'y ^,, , , statute. 3 & 4 W. IV. c. 42, s. 28, enacts, " that upon aU debts or sums certain, payable at a certain time or otherwise, the jury on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, allow interest to the creditor, at a rate not exceeding the current rate of interest, from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time, or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand, until the term of payment. Provided that interest shall be payable in all cases in which it is now payable by law." S. 29. " The jury on the trial of any issue, or on any inqui- sition of damages, may, if they shall think fit, give damages in the nature of interest, over and above the value of the goods at the time of the conversion or seizure, in all actions of trover (z) Kidd V. Walker, 2 B. & Ad. 705. (a) Robinson v. Bland, 2 Burr. 1081. (6) Fisher v. Diiddiwj, 3 See. N. R. 516. (c) Sugd. V. & P. 816 ; Upton v. Lord Ferrers, 5 Ves. 803. (d) Bodily v. Bellamy, 2 Biut. 1096. As to interest on foreign bills, see more fully post, c. 8. [Interest which is i^ayable by a special contract upon a bill of exchange, may, after judgment for the principal sum, be recovered in a subsequent action, for a period up to the date of the judgment in the first action ; but not for a subsequent jieriod, because the right to interest iiuder the agreement ceases at the date of the judgment ; Florence v. Drayson, 1 C. B. N. S, 584 ; S. C. nom. Florence v. Jcnimjs, 26 L. J. C. P. 274.] I 112 Meaning of word "certain. What is a suffi- cient demand. INTEREST. or trespass de bonis asportatis, and over and above all money recoverable in all actions on policies of insurance made after the passing of this Act." Under s. 28, a sum will be considered certain, when it can be made so by calculation {e). Therefore where a party had paid a number of excessive charges to a railway company under protest, and sued for the balance, it was held that he might recover interest upon it, having made a proper written de- mand (/). But where a party agreed to pay money by a letter in which the following words occurred, " I shall pay all the principal, interest, and costs through a friend of mine in L., to whom a transfer of all the sc-.urities will have to be made ; the cash will be ready, if the securities will, on the 16th inst." : the securities were in the plaintiff's hands, and were not ready for transfer till some time after the 16th, and the transfer never was effected : it was held that this did not amount to a promise to pay on a day certain. It was also decided in the same case that an acceptance of the above offer, and a subse- quent letter concluding, " Will you be good enough to inform us what you now propose to do ; you are aware that we hold your undertaking," did not amount to a demand in writing under the above section {g). A demand, however, will be a sufficient compliance with the statute, although it does not follow its very words, if it gives the defendant substantial notice that if he keeps the plaintiff's money longer in his hands, he Avill be held liable for interest upon it, from the time he is served with the demand till the time of payment of the principal. Accordingly, where the notice stated that the plaintiff would expect interest fi'om a period considerably anterior to the date of his letter, it was held sufficient {h). "Where the defendant is entitled to notice of action under any statute, it seems that the notice must contain a demand of interest. But this defence can only be set up where the want of notice has been pleaded specially. And in such a case, if the action and all matters in difference have been referred to (e^ JIariper v. Williams, 4 Q. B. 219, 224. (/) Edwards v. G. W. Ry. Co., 11 C. B. 588 ; 21 L. J. C. P. 72. ((/) Harper v. Williams, uhi sup. th) Afowatt V. Lord Londeshorouyh, 3 E. & B. 307; raffirmed in Ex. Ch. 4 E. & B. 1 ; 23 L. J. Q. B. 38.] INTEKEST. 113 an arbitrator, he may give interest, whether it was demanded in the notice of action or not (/'). [A notice of a call on a contributory, under a voluntary Written instrn- winding-up under the supervision of the Court, stating that ^^^hich a'deTt interest would be charged if the call were not paid at the time is payable, appointed, has been held a sufficient demand {Ic). A mere letter of application for a loan until a day named, is not a written instrument by virtue of which the loan is payable at a certain time, sufficient to satisfy the statute {l)i\ Wherever interest is solely given by this statute, the jury are Discretion of left entirely to their own discretion whether they will grant it ■'^^^" or not, and where they think fit to withhold it, the Court will not interfere. Therefore, where the agreement was to pay a debt by half-yearly instalments on specified days, " with interest for the same sums at the rate of 5?. per cent, per annum, to be reckoned from the 1st October then next, until the day of pay- ment thereof, such interest to be paid by equal half-yearly payments," it was decided that interest upon the arrears of interest could not be allowed at common law ; that it might be given under the stat. 3 & 4 "W. IV. c. 42, s. 28, but that as the jury had reused to allow it, the propriety of their decision could not be questioned {m). Nor can their decision be ques- tioned, though they give interest at 5?. per cent, when this is higher than the current rate of interest at the time (n). Interest can only be given under this statute by the jury. Accordingly, where a plaintiff, after making a demand for the express purpose of obtaining interest, consented to a compro- mise which deprived him of his right to go before a jury, without stipulating for interest, he was held to have lost his right to it (o). III. As to interest upon judgments, it is enacted by 1 & 2 Interest upon Vict. c. 110, s. 17, that every judgment debt shall carry interest J"<^i5'"ent,s. at the rate of 4?. per cent, from the time of entering up the (i) Edwards v. G. W. Ry. Co., 11 C. B. 588 ; 21 L. J. C. P. 72. [(/;) Re Overend, Gurney d; Co., Ex parte Lintott, L. R. 4 Eq. 184 ; Bar- row's Case, L. R. 3 CIi. 784 ; 38 L. i. Cli. 15. As to liability for interest on calls after forfeiture of the shares, see Re Blalcelty Ordnance Co. (Stockeii's Case), L. R. 3 Ch. 412 ; 37 L. J. Ch. 230.] [(I) Taylor v. Holt, 3 H. & C. 452 ; 34 L. J. Ex. 1.] (m) Attwood V. Taylor, 1 M. & G. 279. (/() Moicatt V. Lord Londcshorouglt , 4 E. & B. 12. (o) Bcrrinrjton v. Phillips, 1 M. & W. 48. I I [ INTEREST. judgment, or from the time of the commencement of the act. The judginents named in this section are judgments of the superior courts of Westminster ; and the act equally applies to all such judgments, whether against the defendant, for the subject-matter of the suit, or against the plaintiff for costs (p). The time of entering up judgment for the purpose of this act is from the entry of the incipitur in the Master's book, and not fi-om the final completion of the judgment after the taxation of costs (q). Ill cases of error. Where a writ of error is brought upon a judgment, it was formerly discretionary with the Court above to grant interest on the judgment of the Court below. But now, by 3 & 4 W. IV. c. 42, s. 30, " if any person shall sue out any writ of error upon any judgment whatsoever given in any Court, in any action personal, and the Court of error shall give judgment for the defendant thereon, then interest shall be allowed by the Court of error for such time as execution has been delayed by such writ of error for the delaying thereof." This statute is imperative, and interest will be calculated at Al per cent, (r) ; and may be awarded by the House of Lords (s). m. (p) Pitcher V. Roherts, 2 Dowl. N. S. 394; Newton t. ConyngJiam, 17 L. J. C. P. 288. (2) Fisher v. DudcUnff, 3 Sco. N. R. 516 ; Newton v. Grand June. Ru. Co., 16 M. & W. 139. (r) Lerij v. Lanrjridrje, 4 M. & W. 337. (*■) Garland v, Carlisle, 5 CI. & F. 355. CHAPTER V. CONTRACTS OF SALE. /. Contracts for sale of chattels. 1 . A ctions for price of goods received. 2. Actions for not acceptinr/ goods. Actions for not accepting stock or shares. 3. Actions for not delivering goods. Actions for not replacing stock. 4. Actions on loarranty. II. Contracts for sale of land. 1. Actions for refusal to convey. 2. Actions for refusal to accept land. 3. Acthns on covenant for title. Actions on covenant for quiet en- joyment. Actions on covenant for further assurance. Actions on covenant against in- cumbrances. Actions on covenant to rencio. Under the general head of contracts of sale may be con- sidered several forms of action, the damages in which are governed by analogous princii3les. They are not only the most ordinary ; but the rules connected with them are the simplest, and therefore the most proper to commence with. Contracts of sale may give rise to actions by the vendor against the vendee, or vice versa : the vendor may sue the vendee for default in payment, or for a refusal to accept ; the vendee may sue the vendor for a refusal to deliver, or for a breach of warranty as to the quality of the article. Differences will also arise according to the subject-matter of the contract, which may relate to chattels, such as goods, shares, or stock, or to land. Each of these will require a separate examination. I. Sales of goods. 1. Where the vendee has actually received the goods, of Damages where course the action can only be for the price. This case pre- sents no difficulty : the price is generally ascertained by the contract, or is settled by the jury at the fair value of the article. Claims for interest will be regulated by the principles laid down in the preceding chapter (a). On the other hand, goods have been received. (a) Ante, pp. 105—113. m; ACTIONS FOR NOT ACCEPTING GOODS. Or property lias passed to defen- dant. Damages for refusing to accept. Time from wliich ditference of value to be cal- culated. the (lefcndant may allege that the article is inferior to that for which he had bargained, and may claim a reduction of damages on that account. The principles upon this point have also been discussed at sufficient length in a previous part of this work (&). Even where no delivery to the defendant has been, or can be made, as, for instance, where the sale was of a specific quantity of butter, which was lost by shipwreck, the plaintiff may recover the full price in an action for goods bargained and sold, if the property has passed to the defendant (c). Where goods are sold, to be paid for by a bill, which is not given, assumpsit for goods sold and delivered cannot be maintained before the time at which thu bill, if given, would have fallen due. But the plaintiff may sue at once for the breach of the special agreement (d) ; and will recover the whole amount of the bill (e). It has been suggested in America, that there ought to be a rebate of interest in proportion to the stipulated period of credit (/). 2. The defendant may refuse to accept the goods. In this case, if the property has passed to him, the vendor may at his option consider the contract of sale as still unbroken, and recover their entire price in an action for goods bargained and sold, even though they have not been delivered (g). He may on the other hand, after the time for acceptance has expired, or any other essential condition has been broken, sue for breach of the contract, even after he has resold the goods (7^). In the latter case, the measure of damages is the difference between the contract price and the market price at the time when the contract ought to have been completed (i), for the seller may take his goods into the market and obtain the current price for them (k). Accordingly where a contract was (b) Ante, p. 71. (r) Alexander v. Gardner, 1 Bingli. N. C. 671. (c/) Afusaen v. Price, 4 East, 147. (c) Hutchinson v. Meid, 3 Camp. 329. (/) Hanna v. Mills, 21 Wend. 90. If/) Graham \. Jadcson, 14 East, 498, (h) Maclean v. Dunn, 4 Bingli. 722. It was decided by Lord Ellenboroiigh that an action for goods bargained and sold would be maintainable, even after a resale by the plaintiff; Mertens v. Adcoch, 4 Esp. 251, but this case, after being several times doubted, has been overruled ; Lamond v. Davall, 9 O. B. 1030. ' ^ (?■) Boorman v. Nash, 9 B. & C. 145. (k) Per Cur., Barrow v. Arnaud, 8 Q. B. at p. GIO, in Ex. Ch. ACTIONS FOR NOT ACCEPTING GOODS. 11' made early in January, to supply a quantity of corn " to be delivered at Birmingham as soon as vessels could be ob- tained," and on the 2Gth January defendant gave notice to the plaintiff that he would not accept it if delivered ; it was at that time on its way to B., and on its arrival there the de- fendant was required to accept it, and refused, upon which the action was brought ; the question was, whether the damages should be calculated according to the market price on the 26th January, when the notice was given, or the price on the last day when the contract could have been completed, viz., when the wheat was tendered for acceptance. The latter was held to be the proper rule. Lord Abinger, C. B., said, " The proper period at which to calculate the damages was when the defendant ought to have received the goods. The original contract was in no way modified by the notice, and the plain- tiffs were not bound then to sell in order to reduce the damages." And Parke, B,, said, " The notice amounts to nothing until the time when the buyer ought to receive the goods, unless the seller acts on it in the mean time, and rescinds the contract " (/). In the same case Parke, B., stated his opinion that no action would have lain for breach of contract upon the mere receipt of the notice, but that the plaintiff was bound to wait until the time arrived for the delivery of the wheat, to see whether the defendant would then receive it. This position, however, has been denied by the Queen's Bench, and they have laid it down, that where a refusal to perform a contract can be proved by evidence, which shows that the party has utterly renounced the contract, or has put it out of his own power to perform it, the injured party may at his option sue at once, or wait till the time when the act was to be done {m). A similar decision was given in a previous case, the facts of which were as follows. (I) Philpoits V. Erans, 5 M. & W. 475. (m) Hochster v. De Latour, 2 E. & B. 678 ; [Fro&t v. Kniglit, L. R. 7 Ex. ni ; 41 L. J. Ex. 78, in Ex. Cb. The refusal to perform the contract must be distinct and unqualified, and must be acted upon as a breach by the person entitled to insist on performance ; 2 Smith's L. C. 17, 6th ed. ; Reid v. Jloskins, 4 E. & B. 979 ; 25 L. J. Q. B. 49 ; 26 L. J. Q. B. 3 ; Avery v. Bowden, 5 E. & B. 714; 6 E. & B. 963; 25 L. J. Q. B. 49; 26 L. J. Q. B. 3; Danube, d;c., Rij. Co. v. Xenos, 11 C. B. N. S. 152; 13 C. B. N. S. 825; 31 L. J. C. P. 84, 284 ; Bartholomew v. Mnrkwicl; 15 C. B. N. S. 711 ; 33 L. J. C. P. 145 ; Inchhald v. Western Ncilrjherrn Coffee, Co., 17 C. B. N. S. 733 ; 34 L. J. C. P. 15 ; Mastcrton v. iMajor of Brooklyn, 7 Hill, 62. (Am.)]. IIS ACTIONS FOn NOT ACCEPTING GOODS. Tlic plaintiffs entered into a contract to supply a railway com- pany with 3900 tons of cast-iron chairs, to be supplied from time to time and paid for on delivery. They received and paid for a certain portion. Others were received at periods later than those specified at the request of the Company's agent, and finally the plaintiffs were directed not to supply any more, as the defendants had no occasion for them, and would not accept or pay for them. A large quantity of the chairs were in con- sequence never manufactured or tendered; the declaration stated willingness to perform the contract, but that the de- fendants refused to accept the residue of the chairs, and dis- charged and prevented th-^ plaintiffs from supplying it. It appeared that the plaintiffs had, for the purpose of fulfilling their contract, entered into arrangements with iron founders for the supply of iron, and enlarged their own foundry. They had also made a sub-contract for the supply of a certain number of chairs, which they had to pay 500?. to get rid of. The judge told the jury, the plaintiffs should be put into the same position as they would have been if they had been permitted to complete the contract. The jury gave 1800?. damages. It was held that where in the case of an executory contract the purchaser gives notice not to manufacture any more of the goods, as he will not accept or pay for them, the vendor, having been desirous and able to fulfil the contract, may sue at once without manufacturing or tendering the rest. Also that the damages were not excessive, as the jury were justified in taking into then* calculation all the chairs which remained to be de- livered, and which the defendants refused to accept (n). Of course where there is no difference between the contract and market price, or where the difference is in favour of the plain- tiff, damages can only be nominal (o). Duty of l.iiycr In the absence of any express stipulation, it is the duty of the ^u"^ ^"'"^'' ^"^'^^' ^° ^^^''y ^^^^ ^^^ 8'°°*^^ bought within a reasonable time, and if he neglects to do so, the seller may charge him warehouse room, or bring an action for not removing them should he be in-cjudiced by the delay. But he is not entitled to sell them (p). (n) Coj-t V. Amhtrgate Ry. Co., 17 Q. B. 127 ; 20 L. J. Q. B. 460. (o) VaJjty V. Oakeley, 16 Q. B. 941 ; 20 L. J. Q. B. 380 ; [GriMhs v. Perry, 1 E. & E. 680 ; 28 L. J. Q. B. 204. And see per Martin, B., Frchn V. Royal Bank of Liverpool, L. E. 5 Ex. at p. 99 ; 39 L. J. Ex. at p. 46.1 ( p) Greaves v, Ashlin, 3 Camp. 426. ACTIONS FOR NOT ACCEPTING GOODS. 110 Exactly the same rule prevails where the contract is for Damages for the purchase of stock or shares (q). In one case (r), it seems ^'^fufai to accept ^ n .1 stock or shares. to have been thought, that in an action for not accepting shares, the difference between the contract price, and that on the day when they were re-sold by the plaintiff, if at a reasonable time after the repudiation of the contract, and not that on the day of the breach, was to be the measure of damages. But it has been decided by a later case (s), that as there is no obligation on the part of the vendor to sell at all, so if he refrain from sellmg at the time of the breach, he takes upon himself all risk arising from further depreciation. "When there Time of breach have been several refusals to accept, and negotiations on the ^1^^"^^^^],°" *'°'' subject are still kept up, it will be for the jury to decide on what day the contract was finally repudiated (t). Where the contract is for the delivery of scrip shares which Contracts for . . , , 1 , 1 • 1 • • , J 1 shares not ia are not m existence and known not to be so, this limits the existence, time for performing the contract to the first day on which the thing contracted for is in esse. Till that day arrives neither party can rescind it without the assent of the other. There- fore if the vendee repudiate the contract before the issuing of the scrip, &c., the vendor may still tender it on the first day it is issued, and damages will be computed from that time and not from the date of the first refusal to accept (u). But a con- liow to be con- tract or order for shares must be understood to be a contract for whatever is understood by that word, in reference to the particular thing bargained for (x). Therefore where the de- fendant contracted to -sell plaintiff shares in a projected rail- way, there being at the time neither scrip nor shares in exist- ence, but he being possessed of a letter of allotment entitling him to be a shareholder ; on the 12th of August he refused to perform his contract, and in October the scrip was issued ; it [(q) See as to the vendor's right to an indemnity, if by the buyer's default his name remains on the register of shareholders, and he is obli!:;ed to jiay subsequent calls ; Walker v. Bartlctt, 18 C. B. 845 ; 25 L. J. C. P. 263 Grissell v. Bristotce, L. R. 3 C. P. 112 ; 37 L. J. C. P. 89 ; L. R. 4 C. P. 36 38 L. J. C. P. 10; Coles v. Bristmee, L. R. 4 Ch. 3 ; 38 L. J. Ch. 81(: Maxted v. Paine, L. R. 4 Ex. 2u3 ; 38 L. J. Ex. 129; Davis x. llaycocJc, L. R. 4 Ex. 373; 38 L. J. Ex. 155.] (r) Stewart v. CauUj, 8 M. & W. 160. (s) Pottr. Flather, 5 Rail. Ca. 85 ; 16 L. J. Q. B. 366, S. C. {t) Barncd v. Hamilton, 2 Rail. Ca. G24 ; \_0).] An action was brought against the defendants for not fulfilling a con- . ^[^'> ??'V- -^'"'^ ^*"^' ^- ^- 2 Q- B. 275 ; 36 L. J. Q. B. 175 ; affimied '^"r. v M- « • h.^ S; ?• ^'^ ' ^^ ^- J- Q- ^- 77. See Loder v. KekuU, 3 0. B. N. S. 128 ; 27 L. J. C. P. 27.] (k) Greaves v. Ashlin, 3 Camp. 426 (0 5/mM> V //o/Z««c; 15 M. & W. 136. [See CocTccrell v. Van Diemen's Land Co., 18 C. B. 484.] [0') Borriesv. Hutchinson, 18 C. B. N. S. 445; 34 L. J. C. P, 169. ^O. !^! v'f / ^'"' *V "^l^,-/l^l'^'«;;y "^ ^ ^J^attel required for u'sp^cial puri^oJc, tonjx. Thames Ironworks Co., ante, i,.lQ.\ i. i » As see ACTIONS FOR NOT REPLACING §TOCK. 123 tract to fit up certain machinery within a reasonable time. The declaration laid as special damage the loss of time of the plaintiff's apprentices, who were in consequence kept un- employed ; and also the loss they had incurred by being unable to perform a contract entered into witli another firm for the supply of bobbin. It appeared that this contract being for the sale of goods above the value of lOZ. was not valid, for want of writing, under the Statute of Frauds. The first item of damage was allowed without question. As to the second, Alderson, B., said, " The defendants undertook to perform a contract within a reasonable time, and feiled to do so ; the plaintiflfe say, ' We should have made certain profits had the contract been performed.' The jury are not bound to adopt any specific contract that may have been made ; but if reasonable evidence is given that the amount of profit would have been as claimed, the damages may be assessed accordingly" {Jc). In the cases above discussed, no payment has been made Actions for not for the goods, and on this ground they were distinguished r^p acmg stoc -. from actions for not replacing stock, because in that case, the borrower holds in his hands the money of the lender, and thereby prevents him from using it altogether (I). Accord- ingly, where there has been a loan of stock, and a breach of the agreement to replace it, the measure of damages is held to be the whole value of the stock lent, taken at such a rate as will indemnify the plaintiff. Therefore, where the stock has risen since the time appointed for the transfer, it will be taken at its price on or before the day of trial {m). And it is no answer to say that the defendant may be prejudiced by the plaintiff's delaying to bring the action ; for it is his own fault that he does not perform his engagement ab the time ; '* or he may replace it at any time afterwards, so as to avail hhnself of a rising market (n). In one case where it had fallen, it was estimated at its price on the day it ought to have been replaced (o) ; and in another case, where no day (k) Waters v. Towers, 8 Exch. 401 ; see 22 L. J. Ex. at p. 187. (I) Per Car., [Gainsford y. Carroll,] 2 B. & C. at p. 625. (m) Doivnes v. Back, 1 Stark. 318 ; Harrison v. Harrison, 1 C. & P. 412; Shepherd v. Johnson, 2 East, 211 ; Owen v. Routh, 14 C. B. 327. In the last case tlie rule stated in the text was laid down as the invariable one, without any reference to a rise or fall in the price. (n) Per Grose, J., 2 East, 212. (o) Sanders v. Kentish, 8 T. R. 162 ; see 2 East, 212. jo^ ACTIONS FOR NOT DELIVERING GOODS was named for its replacement, and it had fallen in value at its price on the day it was transferred to the borrower {f). But the plaintiff cannot recover the highest price which the stock had reached at any intermediate day {g), because such a measure involves the assumption that he would have sold rrofitsnot out upou that day, which is purely speculative profit Nor allowed for. ^^^^^ jjg claim damages for any profit which he might have made had he possessed the stock, at all events unless his wish to have it back for that express purpose was distinctly communicated to the defendant. Therefore, when the plaintiff lent a Five per cent, stock, which was to be replaced on a fixed day, and after that day government gave the holders an option to be paid off at par, or to commute their stock for Three per cents. ; the plaintiff expressed to the defendant a wish to have the stock replaced, that he might be paid at par, but no wish to take the new stock ; Held that he was not entitled to recover the price of so much Three per cent, stock as he might have obtained in exchange for his Five per cents, (r). In the case cited, the ]3rofits claimed were both contingent in their nature, and collateral to the breach of contract. But where a bond was given to secure the replacement of stock, and payment in the meantime of sums equal to the interest and dividends, and a bonus was afterwards declared upon the stock, it was held by Sir John Leach, M. R., that in equity, and perhaps even at law, the lender was entitled to be placed in the same situation as if the stock had remained in his name, and was therefore entitled to the replacement of the original stock, increased by the amount of the bonus, and to dividends in the meantime as well upon the bonus as upon the original stock (s). Damages for The rules established in the case of a loan of stock were non-delivery of (p) Forrest v. Elwes, 4 Ves. 492. {q) M' Arthur v. Lord Seaforth, 2 Taunt. 257. (?•) M'Arthur v. Seaforth, uhi sup. [But where stock is transferred as security for a loan, the lender of the money has no right to deal with the stock, and if he does so, the borrower is entitled to the profits made ; Lane/ton V. ^Va^te, L. R. 6 Eq. 165 ; 37 L. J. Ch. 345. A mortgagee who suffera a stock mortgage to continue after the time fixed for replacing the stock, can not in a redemption suit at a subsequent period when the market price is lower, exact the price at the time originally fixed, the mortgagor being entitled to redeem on replacing the stock ; Bhjth v. Carpenter, L. R. 2 Eq. 501 : 35 L. J. Ch. 823.] (s) Vawjhan v. Wood, 1 Myl. & K. 403. WHICH HAVE BEEN PAID FOR IN ADVANCE. 125 held to be equally applicable where the loan was of mining goods, where shares (t). There appears to be a great similarity between {^2™ made!^ these cases and that of a contract for the purchase of goods, in which payment is made beforehand. The plaintiff is equally kept out of his money, and therefore equally unable to protect himself by going into the market to buy that which the defendant has agreed to sell him. The defendant has equally the use of the plaintiff's property, and is therefore able to make all the profit by means of it, which the plaintiff" could have made. If the case is to be governed by exactly the same rules as that of stock, it will require no further dis- cussion. But upon this point there seems to be very little agreement. In America, the Courts of the different States American deci- are in hopeless conflict. In New York, the value of the ^^°^^- article is taken at the highest price between the time fixed by contract and the time of trial (u) unless there has been uudue delay on the part of the plaintiff in prosecuting his claim by action. In such a case the Court was inclined to think the rule of damages should be the value of the article at the commencement of the breach (a-). In Connecticut it is held that in an action for breach of agreement to deliver, where the money is paid beforehand, the plaintiff may in any case recover the money paid and interest upon it (y) ; while in Pennsylvania, the Court take the distinction between an action for breach of the contract, and an action for money had and received, on the ground of failure of consideration. In the former case they hold that the value of the article at or about the time it ought to be delivered is the measure of damages, even though that value be less than the sum paid. In the latter case the money paid may be recovered {z). The only English deci- two cases in England which touch the subject specifically do not "^'^^^• tend to clear it up very much. In the first the defendant agreed in consideration of 262/. 10s. to convey five mining shares, as soon as the books should be open. They opened on the 12 th of August, and the defendant refused to transfer. (t) Oweny. Routh, 14 C. B. 327. [u) West V. Wentworth, 3 Cowen, 82 ; \_Arnold v. Suffolk Bank, 27 Barb. (N. Y.), 424.] (x) Clark v. Pinney, 7 Cowen, 681. ly) Bush V. Canficid, 2 Conn. 485. (z) Smethnrst v. Woolston, 5 Watts & Serg. lOG. See all these cases in full, Sedg. Dam. 264-277, [p. 297 ct seq. 4th ed.]. I pQ ACTIONS FOR NOT DELIVERING GOODS By that time the vahie of the shares had fallen to 175^. The action was for money had and received. Lord Mansfield held that only the value of the shares on the 12th of August was recoverable, saying, "that although the defendant re- ceived from the plaintiff 262/. 10s., yet the difference money only of 175/. was retained by him against conscience, and therefore the plaintiff, ex mquo et hono, ought to recover no more. If the five shares had been of more value, yet the plaintiff could only have recovered the 262?. 10s. in this form of action " («). So far as this case professes to decide that where a party utterly refuses to perform his contract, he can retain any part of the morey paid in consideration of its performance, when sued for money had and received, it may be doubted whether it is law now (&). This species of action was in its infancy in Lord Mansfield's time, and he seems not to have noticed the' inconsistency of allowing the defendant to shelter himself, under the contract, from the effects of an action whose very foundation was the fact of the contract being at an end. So far, however, as the decision shows, by impli- cation, that in an action on the contract, damages would be measured by the value of the article at the time of breach, it goes in support of the doctrine maintained in Pennsylvania. It must be observed that this decision, as affecting mining shares, is contrary to the very recent one of Oiven v. Routh (c), unless a distinction be drawn between the case of a purchase of shares, paid for in advance, and a loan of shares, to be returned on a given day. Startup y. It is difficult to discovcr what principle is to be extracted from a much later case than that just discussed. The defen- dants agreed to sell and deliver on board plaintiff's vessel, at Odessa, a certain quantity of linseed at 30s. per quarter. For half of this they were paid in advance, but on the arrival of the vessel at Odessa the defendants refused to deliver the lin- seed. In February when the cargo would have arrived in England, if it had been delivered at Odessa, the price was from 47s. to 50s. At the time of trial it would have been about 56s. The defendants paid money into court sufiicient Cortazzi. (a) Dutch V. Wairen, 2 Burr. 1010. (b) See Chitt Cont. 543, [562, 9th ed.] ; 1 Wms. Saund. 269 (c) ; [1 Wms. Notes to Sannd. -367]; Auon., 1 Stra. 407; ibid. 406, («), 3rd edit. WHICH HAVE BEEN PAID FOR IN ADVANCE. 127 to cover damages at the rate of 475. The plaintiffs claimed to have them estimated at 5G.s. The jury found that the former sum was sufficient. On the motion for a new trial, (which was refused), Lord Abinger, C. B., explained the grounds of the verdict as follows: "The plaintiffs did not prove that they wanted this seed for any particular purpose, or that they sus- tained any peculiar injury fi-om its non-delivery. The plain- tiffs, however, insisted that they were entitled to the profits which they might possibly have made upon it, if it had been delivered. The jury appeared to me to wish to give no more than the money advanced, and the interest upon it. I am not aware of any rule for estimating damages for speculative profits, besides taking the interest on the money advanced. It was not proved that the plaintiffs could have made more than 5 per cent, on that money ; or that they had not credit at their banker's to that extent, and thereby had sustained any incon- venience." And Alderson, B., said, " The price at the time of notice was not the proper criterion for estimating the damages : for as the plaintiffs had already parted with their money, they were not then in a situation to purchase other seed. The more correct criterion is the price at the time when the cargo would have anived in due time, according to the contract ; when, if it had been delivered, the plaintiffs would have been enabled to re- sell it. Another criterion is, to consider the loss of the gain which the party would have made, if the contract had been complied with. In the present case, the loss which the plaintiffs have sustained arises from their being kept out of their money. That is a matter to be calculated by the interest of the money up to the time when, by the course of practice, the money could have been obtained out of Court" {d). It will be observed that the finding of the jury in this case may have proceeded from either of two principles, which have nothing in common, and which are both sanctioned by the Court. They did, in fact, give damages proportioned to the price of the article at the time it ought to have been delivered to the plaintiffs, so as to be turned to profit. This is in accordance with the doctrine of Pennsylvania, and of Dutch v. Warren. But whether they chose the sum because it did accord with that price, and were (d) Startup v. Cortazzi, 2 C. M, & R, 1G5. 128 ACTIONS FOR NOT DELIVERING GOODS. merely fortified in tlieir conclusion by finding that it amounted to a return of principal and interest; or whether they chose it because it amounted to principal and interest, without any reference to any other circumstance, we cannot tell. If the former was their reason, we have the judgment of Alderson, B., that it was the more correct criterion. If the latter, we have also the opinion of the same Baron that it was another cri- terion ; and the judgment of Lord Abinger, who says that he was not aware of any other way of estimating damages for speculative profits. This opinion, by-the-bye, is in remarkable accordance with that so recently thrown out by the Court of C. B., in the case of Fletcher v. TmjJeur (e). Further discus- ^^ch is the unsettled state of the law upon the subject, sion of the point. Mr. Sedgwick is of opinion that the period of breach is the true time, in all cases, for estimating the damages, unless it can be shown that the article was to be delivered for some specific object known to both parties at the time, and that thus a loss within the contemplation of both parties has been sus- tained (/). This doctrine cannot be maintained in England, if, as he also thinks, there is no solid reason for making any difterence between stock and any other vendible commodity. It is quite settled that the price of stock may be taken at the time of trial (g). The cases may, however, be distinguished on the ground that stock may be supposed to be purchased rather as an investment than for resale, while goods are bought expressly to sell again. Consequently it may be assumed that the former would have remained in the possession of the buyer till the time of trial, while no such presumption can be raised in the latter case. If this be so, damages might fairly be cal- culated in regard to stock, at the price it bore at the time of trial ; in regard to goods, according to their price at the latest period when we could be sure they would have remained in the plaintiffs hands, viz., the time they ought to have been deli- vered. This rule could produce no practical injustice, for if ever this price proved less than that paid, the plaintiff would have it in his power to treat the contract as rescinded, and sue for money had and received, as on a failure of consideration. (e) 17 G. B. 21. Ante, p. 12. (/) Sedg. Dam. 276, [310, 4th ed.l. {>/) Ante, p. 12-3. ACTIONS FOR BREACH OF WARRANTY. 129 Wliatever is finally settled to be the rule where goods have Damages when been paid for in advance, will equally apply where payment has |°|*| which is*^ ^ been made by bills, as long as they are current. But when dishonoured, they are dishononred the vendor is just in the same position as if no bill had been given at all, and in an action against him, only the difference of price can be recovered (h). [By the Mercantile Law Amendment Act, 185G, (1{> & 20 Order for Vict. c. 97), s. 2, where specific goods have been sold, the ofgoods^"^'''"'^ Court may order execution to issue for their delivery, and the jury may be directed to find, by their verdict, what the goods are, what sum the plaintiff would have been liable to pay for their delivery, what damages, if any, he would have sustained if the goods should be delivered under execution, and what, if not so delivered.] 4. In actions upon a warranty, the damages may depend Actions on a considerably upon the fact of the article having been retm-ned ^^^^"^^^ ^' or not ; this will in many cases be a matter entirely at the option of tlie vendor. If a specific article has been sold with Right to return a warranty, and is found not to answer it, the vendee cannot ^°'^^^' force the vendor to take it back, after he has received it [i), nor, it seems, can he even refuse to receive it (Z-:). "Where, however, the articles purchased are not ascertained when the bargain is made, the purchaser may refuse to receive them, or send them back, having only kept them a reasonable time to ascertain their insufficiency (/). When the thing sold has been returned, and no special loss Damages when has accrued, the damages consist of the price paid (m). If, a^icic ii^^^ been 1 1 \ / ' returned. however, no payment has been made, the damages could, it is apprehended, be merely nominal. As the contract is rescinded. (h) Valpyv. OaMeij, 16 Q. B. 9-41 ; 20 L. J. Q. B. 3S0 ; [Griffiths v. Pernj, 1 E. & E. 680 ; 28 L. J. Q. B. 204.] {{) Street V. £lay, 2 B. & Ad. 456 ; Gompertz v. Denton, 1 C. & M. 207. {k) Dawson v. Collis, 10 C. B. 523. [Where the property in the specific chattel has passed by the contract, it is settled that the purchaser cannot reject it. See 2 Smith's L. C. 26, 6th ed. ; Heywortli v. Hutchinson, L. R. 2 Q. B. 447 ; 36 L. J. Q. B. 270.] [T) Okell V. Smith, 1 Stark. 107 ; Street v. Blay, uhi sup. [Azeniar v. Casella, L. R. 2 C. P. 431 ; 36 L. J. C. P. 124 ; affirmed in Ex. Ch. L. R. 2 C. P. 677 ; 36 L. J. C. P. 263 ; Bannerman v. White, 10 C. B. N. S. 844 ; 31 L. J. 0. P. 28. The venclee is not bound to send the goods back, but may call on the vendor to take them away. See Lucy v. Mouflet, 5 H. &N. 229; 29 L. J. Ex. 110.] (ni) Caswell v. Coare, 1 Taunt. 166. ISO When article lias not been re- tuiTied. Question as to effect of rule where goods have not been paid for. ACTIONS FOR BREACH OF WARRANTY. no claim for the price could ever be made, and the hypothesis assumes that no other injury has taken place. Where the article has not been returned, the measure of damage will be the difference between its value, with the defect warranted against, and the value which it would have borne without that defect. It was formerly laid down that the measure would be the difference between the contract price, and that for which it would sell with its defect (n) . But the weight of authority in England is strongly in favour of the rule as stated above {o), and the doctrine in America is the same {p). Where the article has been resold by the purchaser, before the breach of warranty has been discovered, the price obtained at this second sale may be left to the jury, as a mode of estimat- ing what the real value of the chattel, if perfect, would have been ; but the difference between this price and the purchase money cannot be given as specific damage, on account of the loss of profit which might have been made on it {q). It is quite clear that this rule does complete justice where the stipulated price has been paid, and it is presumed that the same rule would apply where the price had not been paid, as the purchaser would still be hable to an action for it. A ques- tion might arise, however, as to the effect of a recovery for (k) Caswell Y. Coare, uhi sup. (o) See per Buller, J., 1 T. R. 136 ; per Lord Eldon, C. J., Curtis v. Hannay, 3 Esp. 82 ; Clare v. Mcujnard, 6 A. & E. 519 ; Cox v. Walker, ibid. 523, n. ; [Joves v. Just, L. R. 3 Q. B. 197 ; 37 L. J. Q. B. 89 ; Loder V. Kekule, 3 C. B. N. S. 128 ; 27 L. J. C. P. 27. In this last case, there had been a prepayment by the plaintiff on account of the goods, but it was held that this could not be taken into account in apportioning the damages. In connection with actions for breach of wari-anty, may be mentioned a case in which a company had improperly inserted a person's name in their register, and given him certificates for shares which he was thus enabled to sell. The vendee paid for the shares, and was registered as a shareholder, but his name was subsequently removed on an application by the real owner, under 25 & 26 Vict. c. 89, s. 35, for the rectification of the register. The company were considered to have held out the vendor as entitled to the shares, and were directed to pay to the innocent vendee the value of the shares on the day on which the company first refused to recognise him as a shareholder, with inte- rest at 4 per cent, as damages. If the shares had been good shares, and the company had refused to put the vendee on the register, the measure of damages would have been the market price at that time ; if no market price at that time, then a reasonaljle compensation to be assessed by the jury, for the loss of the shares; Be Bahia and San Francisco Ry. Co.,!,. R. 3 Q. B. 584 ; 37 L. J. Q. B. 176 ; followed in Hart v. Frontino, d-c. Gold Mininn Co., L. R. 5 Ex. p. 116, (n.).] (p) Sedg. Dam. 293. [329, 4th ed.] (2) Clare v. Maynard ; Cox v. Walker, uhi sup. ACTIONS FOR BREACH OF WARRANTY. 131 breach of warranty, supposing the purchaser to be subsequently sued for the price. The general rule in such cases is, that the inferiority of the article may be given in evidence in reduction of damages (r). Could this be done under the circumstances supposed? Take the case of a horse sold for 100/. with a warranty, and assume that sum to be its real value if sound. It turns out to be unsound, and is resold for 30/. The pur- chaser sues on his warranty, and recovers 70/. The sums make up the 100?. for which he is liable, and no injury is done him. But if, when sued for the price of the horse, he could set up its unsoundness, so as to reduce the damages to 30/., it is plain that he would pocket 70/. by the transaction. It is conceived that he would be precluded fi'om doing so by the former re- covery. It has, no doubt, been held in several cases, that it is no bar to an action for breach of contract in the quality of a chattel, that its inferiority had been previously used in reducing the price to be paid for it (s). But it by no means follows that the converse proposition is true. In both the cases cited in the note, the action was to recover on account of some special damage beyond the mere inferiority of the chattel, but arising out of it. Such special damage could not have been given in evidence, nor allowed for, in the former action ; and on this express ground the second action was permitted. But in an action on the warranty, the inferiority is the principal ground of damage, though other matters may also come into considera- tion. Another decision, which at first sight appears more in point, will be found equally beside the question. An action was brought by a servant for his wages, and it was held that his misconduct might be set up as an answer, though it had formed the ground of an action by his master, and he had been dismissed on account of it (/). But there the former action had been for seducing an apprentice to quit the plaintiff, not for any inferiority in the defendant's own services. The mis- conduct was set up in each case with quite a difTerent object ; (?•) A7it€, ij. 70. (s) Mondel v. Steel, 8 M. & W. 858 ; FJffrje v. BurUdrje, 15 M. & W. 598. [The piircliaser, when sued for the price, is not bound to set up the defects in the chattel in reduction of damages. He may pay the full price, and then sue for breach of contract : Davis v. Iledrics, L. R. G 0. B. 687 : 40 L. J. Q. B. 276.] {t) Turner v. Robinson, 5 B. & Ad. 789. K 2 132 Expense of keep. Damages wliere article bought for a specific puqiose. ACTIONS FOR BREACH OF WARRANTY. in the one case it was alleged as an independent offence, from which special damage accrned ; in the other as a cause justity- ing dismissal, and therefore negativing all claim to wages. When the vendor refuses to take back the article, the vendee may recover all expenses necessarily caused by its lying on his hands till it can be resold ; as for instance the keep of a horse. But the time must be a reasonable one, and what is a reasonable time is a question for the jury, and depends upon the circum- stances of each case (u). But no damages can be recovered on this account, unless the purchaser has tendered the article to the seller {x). When a contract embodying a warranty is entered into with reference to a particular purpose, damages ought to be given for the loss incurred by the failure of that purpose. Where the article sold was scarlet cuttings, which were shreds of scarlet cloth used in trade with China, and the declaration alleged that they were not scarlet cuttings, whereby they were of no use or value to the plaintiff, Lord Ellenborough told the jury that, under these words, they were to consider the effect of their being of no use or value in China. " I am decidedly of opinion," he said, " that the value is to be understood as the value which the plaintiff would have received had the defendant fully per- formed his contract;" and this view was supported by the Court on a motion for new trial (?/). In another case, where a link in a chain cable, which had been sold with warranty, broke, it was held that the value of the anchor which was lost along with it might be recovered (z). But this case was treated as of no authority in Hadley v. Baxendale {a). And Alderson, B., said that on the same principle the jury might have given the value of the ship, if it had been lost. In a recent case, where a passenger vessel was warranted to start on a particular day, and did not, the plaintiff was held entitled to recover not only the passage money, but his expenses incurred while waiting (b). (m) Chesterman v. Lainh, 2 A. & E. 129 ; Ellis v. Chinnoch, 7 C. & P. 169. (x) Caswell v. Coare, 1 Taunt. 566. Qucere, ought there not to be a set-off against this item of damage, where the article has been used beneficially, as, for instance, a horse ? (ij) Bridge v. Wain, 1 Stark. 504. {z) Borrodaile v. Brunton, 8 Taunt. 535. (a) 23 L. J. Ex. 180. (6) Cranston v. Marshall, 5 Exch. 395. in advancing value of tLe ACTIONS FOR BREACH OF WARRANTY. 133 [Where seed barley was sold, warranted to be Cheyallier seed barlcj', and, on being sown, produced a crop of inferior quality, the natural amount of damage was considered to be the differ- ence between the value of the inferior crop and of that which would have come up if Chevallier seed barley had been sown (r). In this case claims for compensation had been made upon the plaintiffs by various persons to whom they had sold the seed barley with a similar warranty. It was held that the plaintiffs might recover the amount of the damages sustained by the sub-purchasers without having previously made them compen- sation. The plaintiffs were under clear legal liability to com- pensate them, and it was for the jury to assess, once for all, the probable amount which they would have to pay (d).] It is still an undecided point whether the plaintiff can re- Expense incurred cover any expenses he has been at in advancing the value of the thing sold. The question arose in the following manner : The article, defendant sold a horse to the plaintiff, with warranty, for 45/., and the latter resold it to C. for 55/. On discovering its un- soundness, he had to give up his bargain with C. and he then sued the defendant, stating the loss of his bargain as special damage. It was contended that the additional 10/. for which the animal could have been resold might be recovered as the amount of expense and care bestowed on the horse, by which its actual value was raised. Coleridge, J., said, " The plaintiff cannot recover upon tliis record. The declaration merely alleges that the plaintiff bought the horse for so much, and sold him at so much moi-e, not alleging any cause of the advance. This shows only that the plaintiff is seeking to re- cover for a good bargain lost: which, it is admitted, cannot be done." Patteson, J., said, " Whether or not he could have recovered if the damage had been differently laid, it is not necessary to say " (e). In the particular case it is quite clear that the plaintiff had not added 10/. worth of value to the horse, for it ultimately sold only for 17/. is., and it is incredible that it could have been only worth 7/. 4s. when it came into [(c) Randall v. Rcrper, E. B. & E. 84 ; 27 L. J. Q. B. 266 ; Passcvger v. Thorium, 35 Barbour (N. Y.), 17 ; Ferris v. Comstocl; 33 Coun. 513.] [(rf) Randall v. Rapcr, stipra ; and see Dinglex. Hare, 7 C. B. N. S. Ho; 29 L. J. C. P. 143.] (e) Clare v. Maynard, 6 A. & E. 519. 134 ACTIONS FOR BREACH OF WARRANTY. his possession. If the value were really added, however, it is difficult to see how it could form a claim for damage. Suppose a young horse, with a latent defect that renders it only worth 201, is sold with a warranty for 40^., and the purchaser by skilful training adds so to its real value, that if sound it would sell for CO/., but with its blemish will only sell for 40/., and does sell for that price. Here, on the principle stated before, he will obtain the difference between its value sound and un- sound, which appears to be 201. His skill in training has been paid for already, in the increased price of the horse, and there can be no reason why it should be paid for again. Of course it would be very diflPerent, if, in consequence of the unsound- ness, all his labour and expense had been utterly thrown away, or produced much less result than they ought. In such a case the question would probably be, whether it was bought with a view to any purpose which would render such labour and expense necessary, the purpose being part of the contract. As, for instance, if an untrained horse were bought for a lady's use, and warranted free from vice. If it turned out incorrigibly vicious, it never would be fit for the purpose, and yet the pre- liminary training must have been contemplated by the seller. Under such circumstances, the expenses would appear to be fairly recoverable, not because they had added to the value of the animal, but precisely because they never could. Costs of former Where an article sold with a warranty has been resold with a similar warranty, and the second purchaser, on discovering the defect, brings an action against his vendor, the costs in- curred in this action are sometimes recoverable, as damages, in an action by the first purchaser against his vendor. This subject, however, has been sufficiently discussed in a previous chapter (/). Fraud. [Where a wan-anty is in fact a fraudulent misrepresentation of the character or condition of the goods, the A'cndor is re- sponsible for all injury which is the direct and natural result of the purchaser's acting on the faith of his representation. Therefore, where a cattle dealer fraudulently represented a cow to be free from infectious disease when he knew that it was not so, and the purchaser placed it with five others (/) Ante, p. 53. SALES OF LAND. ] 35 which caught the disease and died, the latter was held entitled to recover as damages in an action for fraudulent misrepresentation the value of all the cows (g).] II. Sales of Land. 1. Actions by vendee against vendor for refusal to convey. Actions for Where the vendor is unable to complete the contract which trart°to°con7ey he has entered into, the vendee may sue him for its breach, laud. and in such an action he is always entitled to recover the deposit with interest, as special damage when so laid (h) ; or, even without being laid, from the day of demand under 3 & 4 W. IV. c. 42, s. 28 ; he is also entitled to the expenses of investigating title (i), such as comparing deeds, searching for judgments, and journeys for that purpose (Jc), even though he has not paid his attorney's bill before commencing the action (/). Of course in no case can any action be brought on the Dam-'^ses wben ■^ ... -r, contract void. contract to sell, unless there has been a binding one. Jiut where the contract is for any reason void, the purchaser may recover the deposit or purchase money, and a moiety of the auction duty, if payable by purchaser, as money had and received to his use, but neither interest (unless under 3 & 4 W. IV. c. 42, s. 28) nor expenses of investigating title (??<). At any time up to the completion of the purchase the pur- chaser may rescind the contract, and recover his money on account of defect of title ; but he cannot do so once the [(g) Mullett V. Mason, L. R. 1 C. P. 559 ; 35 L. J. C. P. 299 ; Sherrod v. Langdon, 21 Iowa. 518. Similar damages seem to have been recovered where there was no fraud, but the beast was warranted free from tlisease, and both parties contemplated its being placed with other stock ; Knoidcs v. Nunns, 14 L. T. N. S. 592. It is illegal to bring a glandered horse into a public market or fair, but there is nothing illegal in a simple sale ; therefore a person who sold a glandered horse without warranty, and without fraudulent mis- representation, was held not responsible for disease communicated to other horses of the purchaser's in the stable to which he removed it ; Hill v. Balls, 2H. &N. 299 ; 27 L. J. Ex. 45.] {h) Be Bernales v. Wood, 3 Camp. 258 ; Farqulmr v. Farley, 7 Taunt. 592. [As to the vendee's liability to pay interest upon the purchase-money from the day fixed for completion, under the common condition of sale to that effect, see Williams y. Glcnton, L. R. 1 Ch. 201.] [i) Waller v. Moore, 10 B. & C. 416. {h) Hodges v. Lord Litchfield, 1 Bingh. N. C. 492 ; Ormc v. Broughton, 10 Binsh. 533. (/) Richardson v. Chasen, 10 Q. B. 756. [The vendee's attorney cannot suo the vendor; WilUnson v. Grant, IS C. B. 319; 25 L. J. C. P. 233.] (m) Goshell v. Archer, 2 Ad. & Ell. 500. vcred. 130 ACTIONS FOR BREACH OF CONTRACT purchase is finally closed, and the conveyance fully executed by all the parties whose assent is necessary (n). Where he has purchased different lots, he may abandon one for defect of title and keep the others, but he cannot retain part and give up part of the same purchase (o). Each lot set up at an auction is a distinct sale ( p). What (lamases But he cannot recover expenses incurred previous to the cannot be reco- ^jjj^g ^^^^^ for i]^q performance of the contract, which the party enters into for his own benefit (q) ; nor the expense of surveying the estate (r) ; nor of a conveyance drawn in anticipation of the purchase being completed (s), unless the vendee, by the misrepresentations of the vendor, and without laches on his own side, has been induced to think that every- thing had been satisfactorily ascertained (t) ; nor the costs of a Chancery suit for specific performance, when brought by the vendor against the vendee {ic) ; or vice versd (x) ; [nor costs incurred after it was known that a good title could not be made out (y) ; ] nor the profits arising from a resale of the estate, unless perhaps where there was fraud in the original vendor ; nor the expenses of such resale ; nor the sums which he was liable to pay to the sub-contractors for the expenses incurred by them in investigating the title ; for all this damage arose from his own premature act, and not from the fault of the vendor (z) ; nor losses arising from the resale of stock procured for the estate (a) ; nor the value of improve- ments made upon the premises, though the agreement to let expressly contemj)lated such improvements being made, and (n) JoJmson v. Johnson, 3 B. & P. 162. (o) Ibid. {p) Sm. Merc. Law, Sale ; Emmerson v. HccUs, 2 Taunt. 38. {q) Hodges v, Litchjield, supra; IlansUp v. Padivicl; 5 Excli. 615, ante, p. 40. (r) Ibid. (s) Ibid.; Jarmain v. Egelstone, 5 C. & P. 172. (() Fuchards v. Barton, 1 Esjj. 268. (u) Hodijes V. Litchfield, supra. {x) Mahhn v. Ftjson, 11 Q. B. 292 ; overruling Jones v. Dijlce, Sug. V. & P. 1078, nth ed. ; and see ante, p. 43, 45. [(//) Pounsctt V. Fuller, 17 C. B. 660 ; 25 L. J. C. P. 145 ; ,S'i/tes v. Wild, ] B. & S. 587 ; 30 L. J. Q. B. 325 ; affirmed 4 B. & S. 421 : 32 L. J. Q. B. 375.] ^ (z) Walker v. Moore, 10 B. & C. 416. {a) Hodges v. Litchfield, supra ; [Godwin v. Francis, L. R. 5 C P 295 : 39 L. J. C. P. 121.] TO CONVEY LAND. 137 stated ''tliat it was understood by and between the parties,' that the defendant was possessed of the said premises for his own life, and the life of one Mrs. M., and the survivor of them." which turned out not to be the case. Damages were limited to 405,, found by the jury to be the worth of the lease (one for two years) without the improvements, on the day when plaintiff offered to take it (J). Nor can the vendee recover as damages the loss incurred by selling out stock with a view to the completion of the bargain, for the plaintiff had a chance of gaining as well as losing by the fluctuation of the price " (c). As to when a vendee is entitled to damages for the loss of Damages for the his bargain, the cases run rather close. Primd facie, where a ^^^^ ain^^^"^^^*^ ^ party sustains loss by reason of a breach of contract, he is entitled, so far as money can do it, to be placed in the same situation with respect to damages as if the contract had been performed ( ACTIONS ON- COVES XST FOR TITLE. vendor ; it was held that, in estimating the loss on a resale, the deposit, although forfeited, was to be taken into account as diminishing the deficiency (li).] Damages on 3. Analogous to the case of waiTanties in sale of chattels, covenants for are the various covenants for title, authority to convey, quiet iic^bll^er'* enjoyment, and against incumbrances which are usual upon transfers of real property. The cases upon this point m England are very scanty, while they are to be found in remarkable abundance in America. It is to be regretted that the multiplication of courts of inde- pendent jurisdiction in that country should make their de- cisions often a source of embarrassment, rather than an assistance in legal investigation. Actions may be brought for breach of the covenant for title, and authority to convey, before any eviction or disturbance of the plaintiff has taken place (/). TThat ought to be the amount of damages under such circumstances ? Where sometliing It is plain that the conveyance may, notwithstanding the ^M^lffb* *the^*' defect of title, pass something to the covenantee, or it may grant. in fact pass nothing at all. The former state of facts occurred in a very old case. " B. covenants that he was seised of Bl'acre in fee simple, when in truth it was copyhold land in fee, according to the custom. By the Court. The co- venant is broken (Jc). And the jury shall give damages, in their consciences, according to that rate, that the country values fee simple land, more than copyhold land (Z)." This is exactly the same rule as we have seen before in the case of warranty of chattels personal ; namely, that the measure of damages is the difference between the value of the thing as it is, and its value as it was warranted to be {m). And so in a case in Xew York, where, on a similar covenant, it turned out that the grantors had the fee in two-sixths of the premises, and a life estate iu the remainder, the Court said, " There is no settled rule of law to ascertain the damages in such a case without having a jury to assess them, as they [(A) Ochenden v. Henly, E. B. & E. 485 ; 27 L. J. Q B 361 ] (2) Kingdonr. ^^ottk, 4 M. &S. 53 ; [Fx parte Elmes, 33 L. J. Bkcy. 23.1 (k) ^ot broken, in the original, hut cleailv bv a misprint. (I) Gray v. Briscoe, K07, 142. (m) Ante, p. 130. ACTIONS ON COVENANT FOR TITLE. 143 miisl depend principally upon the value of the estate during the lives of the defendants, which must be deducted from four-sixths of the consideration money. Xor ought interest to be allowed during their lives ; for no one during that time will have a right to turn the plaintiflF out of possession, or call upon him for the mesne profits " (n). On the other hand, "^en nothing the defect in the title may be so complete as to pass nothing ^""^ ^'^^^'"^■ from the grantor to the grantee. In such a case, in Massa- chusetts, it was said, " The rule for assessing the damages arising from this breach is very clear. No land passing by the defendant's deed to the plaintiff", he has lost no land by the breach of the covenant ; he has lost only the consideration he paid for it. This he is entitled to recover back, with inte- rest to this time" (o). And it has been stated by Patteson, J., that where a mortgage is made with covenant for title, the measure of damages, in case of breach of the covenant, is the original debt (p). Where the plaintilT has never got into possession of the land, and in consequence of the want of title never can, the above is clearly the proper measure of damages. The action on the covenant then comes in place of an action for money had and received, on failure of consideration (q). But it may be doubted whether the same rule would hold good, as a matter of law, where the plaintiflF had got into possession, and in fact continued so still. A case may be easily imagined, and indeed constantly occurs, in which there is such a defect in the title as makes it strictly unsaleable, though there is little or no chance of the occupant ever being turned out. In such a case it would not be fair to allow the whole purchase- money to be recovered. The vendor has not given a saleable title as he engaged ,• but he has given up his own possessory title, which was worth something to him, and is worth some- thing to the purchaser. It is clear that if he were forced to refund the entire purchase-money, the estate would not revert to him, because, as against him, the title would still be in his vendee. The covenant, it will be observed, is a continuing (w) Guthrie v. Pugsley, 12 Johnson's Rep. 12G. (o) Bid-ford v. Page, 2 Mass. 455, 461. (p) 4 Q. B. 395. (q) Baber v. Hams, 9 A. & E. 532. ]4i ACTIONS ON COVENANT FOR TITLE. one (r) ; and therefore, may be sued upon from time to time, according as fresh damage arises (s). The fair rule then would be to give the plaintiff such damages as will compensate him for the defective quality of his title. This was the course adopted in the case last cited, where the special damage laid was, that the lands were thereby of less value to the owner, and that he was hindered from selling them so advantageously. And so in an American case, where it appeared that there was an outstanding paramount title, which, the plaintiff had pur- chased in, haviug been all the time in possession, it was held that he was not entitled to recover the whole consideration money with interest, but only the amount paid to perfect the title, with interest from the time of payment (t). It may be questioned, too, whether interest on the purchase-money ought in any case to be allowed, where the plaintiff has had ■ a beneficial possession. The profits received from the land ought to be assumed to be an equivalent for the outlay of his money (li). It would be different where the land had been taken for some use which could produce no return until a distant period, which had not arrived ; as, for instance, where the purchase was of building lots or unreclaimed land. "Where the plaintiff has always been in possession, and his title has since been perfected, without any expense on his part, nominal damages only can be recovered in the absence of special loss ; as, for instance, where the grantor, having conveyed without title, subsequently acquired a title, which was held to eniu'e to the gi'antee by estoppel (x). Covenant for A breach of the covenant for quiet enjoyment cannot occur quiet cnjuymcnt. ^j^-^ j.|^g plaintiff has actually been dispossessed or otherwise disturbed. Cases of this sort present less difficulty than the preceding in one respect, viz., that the nature of the damages is no longer hypothetical, but ascertained. Where the plaintiff, who was lessee of a term, was evicted, it was held that in (r) Kinrjclon v. Nottle, 4 M. & S. 53. (s) Ante, p. 62. (() Spring^ v. Chase, 22 Maine, 505 ; [Brandt v. Foster, 5 Iowa, 2S7 ; Favxett v. Woods, ib. 40O. The vendee cannot, however, swell his damages beyond the amount of the consideration paid to the vendor by purchasing the paramount title ; Cox v. Henri/, 32 Penn. 18.] [(m) Coxy. Henry, 32 Penn. 18.] (a:) Baxter v. Bradbury, 20 Maine, 2G0. [And see Nosier v. Hunt, IS Iowa, 212.] I ACTIONS ON COVENANT FOR TITLE. 145 actions on the covenant for title, or quiet enjoyment, the measure of damage was the vahie of the unexpired part of the term, and the amount of any damages recovered against the plaintiff" by the ejector as mesne profits without interest {y). And where an action is brought against the occupier by a person with superior title, and the former compromises by paying money, he is entitled in an action upon the covenant for title to recover the whole sum so paid, and his costs as between attorney and client, even though he gives the cove- nantor no notice of his intention to compromise. The only effect of want of notice is to let in the party, who is called upon for an indemnity, to show that the plaintiff" has no claim in respect of the alleged loss, or not to the amount alleged ; that he made an improvident bargain ; and that the defendant might have obtained better terms, if the opportunity had been given him (2). Of course the rule stated above, as to the damages being Mode of caicu- the value of the unexpired part of the term, would apply j^*'°f ^'^^^^ '^^ equally where the estate was of a nature higher than a chattel interest. If it were held in fee, the damages would be the entire value of the estate. And then arises the question, how is this value to be calculated ? Is it to be the value at the time of conveyance, or at the time of eviction? I am not aware of any English case in which a rule has been laid down on this point, but it has formed the subject of frequent discus- sion in America {a). (y) Williams v. Burrell, 1 C. B. 402. [So wliere a lessor, being tenant for life, with power to grant leases in possession, granted to a lessee in posses- sion a reversionary lease, which, on the lessor's death, reversioner refused to ratify, the lessee recovered from the lessor's executor the iiremium which he had paid to the lessor, and the difference in value between the term professed to be granted by the lessor, and that ultimately granted by the reversioner, together with the excess of the costs of the second lease over that of the void lease ; Lock v. Furze, 19 C. B. N. S. 96 ; 34 L. J. C. P. 201 ; affirmed in Ex. Ch. L. R. 1 C. P. 441 ; 35 L. J. C. P. 141.] (2) Smith V. Compton, 3 B. & Ad. 407. [Ralph v. Crouch, ante, -p. 55;] (a) See Sedg. Dam. 160—175. 175 et seq. 4th ed. [In the appendix to the first edition of this treatise the author adds] " In an action for breach of a covenant for quiet enjoyment it appeared that the plaintiff had erected buildings upon the land and converted it into pleasure ground, and he claimed damages for the expense he had incurred in so doing. Dallas, C. J., said, 'I very much doubt whether in any case a plaintiff can recover for the improvements and buildings he may choose to make and erect upon the lands.' The point, however, was not decided; Lewis v. Campbell, 8 Taunt. 727. 146 ACTIONS ON COVENANT FOE TITLE. when it has in- Land may have obtained an increased value since the time creased. ^^ ^.j^^ conveyance, either from intrinsic circumstances affect- ing it, or from improvements made upon it by the purchaser. In New York, and some other states, it was early decided that the measure of damages in case of eviction, when the pur- chaser derived no benefit from the property, owing to the defective title, was the sum paid, with interest from the time of payment, and the costs of ejectment (b). Kent, C. J., said, " Upon the sale of lands, the purchaser usually examines the title for himself, and in case of good faith between the parties (and of such cases only I now speak), the seller discloses his proofs and knowledge of the title. The want of title is there- fore usually a case of mutual error, and it would be ruinous and oppressive to make the seller respond for any accidental or extraordinary rise in the value of the land. Still more bur- densome would the rule seem to be, if that rise was owing to the taste, fortune, or luxury of the purchaser. No man could venture to sell an acre of ground to a wealthy purchaser with- out the hazard of absolute ruin." The same rule was applied in a later decision to the case of improvements made by the owner, for which it was held that no allowance could be made (c). And a similar doctrine was laid down where the eviction was from a lease (d). These decisions seem to have been founded not only on the arguments from expediency which were advanced, but on the analogy of the old law in the case of a warranty, upon a writ of ivarrantia char tee. There the rule also was, that the value should be taken at the time of the conveyance, and not at the time it was recovered back from the occupier (e). The law of New York upon this point is followed by the states of South Carolina, Virginia, Ten- nessee, and Kentucky. On the other hand, in Massachusetts and Connecticut, although the purchase-money and interest is held to be the proper measure of damage, in an action on the [In a case before Knight Bruce, V. C, in 1850, where a father had settled an estate upon the marriage of his son, and covenanted with the trustees that he was seised in fee, whereas he was but tenant for life, in estimating the damages for the breach of covenant, the value of the estate was taken at the death of the settlor ; Wacc v. Bickerton, 3 D. G. & S. 751. See at p. 756.1 (6) Staatsv. Ten Eyclc's Exrs., 3 Caines, 111 (/). (c) Pitcher v. Livingston, 4 Johnson's Rep. 1. {d) Kinney \. Watts, 14 Wend. 38. {e) 6 Ed. 11. , 187. ACTIONS ON COVENANT FOll TITLE. covenant for title where there has been no eviction, the Courts have decided that where there has been an eviction, the value of the land is to be estimated as it was at that time (/). I conceive that the doctrine laid down by Kent, C. J., is clearly the equitable rule, where the improvements arise from causes of an entirely collateral nature, such as the growth of a town, the formation of a railway, or the like. The occupier has had all the benefit of this increased value, so long as it lasted, without paying anything for it. Even supposing that he had sold again after the land had risen in value, and been forced to pay back to his purchaser according to that additional value, still he would be only repaying money which he had actually received, and would on the same principle have a right to call on his vendor to return the sum which he had received, and no more {g). But the same obvious equity seems by no means to exist when the additional value arises from the outlay of the plain- tiff's own capital upon the land. No doubt cases might be put in which a claim for damages on this account would be clearly inadmissible ; as, for instance, if a person bought a moor or a mountain for shooting over, and chose to reclaim the one, or build a mansion with pleasure grounds upon the other. But suppose he purchased building ground at so much per foot in London or Manchester for the exj^ress object of building, ought he not to be repaid for money laid out in this way, the benefit of which is seized by a stranger ? In this case, the damage incurred is the direct result of the breach of contract, and a result which must have been contemplated by the party enter- ing into the covenant (A). Probably this will be found to be the true ground of distinction, and that every case must be decided upon its own merits, according as the improvements were the fair consequence of the contract of sale or not. (/) Gore V. Brazier, 3 Mass. 523, 543 ; Caswell v. WcndeU, 4 Mass. 108 ; Horsford v. WrigJit, Kiiby, 3. [([/) But in Lockv. Furze, ante, p. 145, the plaintiff really recovered damages for a I'ise in the value of the land.] [(/i) Accordingly, in e(]uity a purchaser of building land has had allowed to him the amount exjjended in erecting houses ; Bunni/ v. Hoiikinson, 27 Beav. 565 ; 29 L. J. Ch. 93. In Rolph v. Crouch, L. R. 3'^ Ex. 44 ; 37 L. J. Ex. 8, the lessee, a florist, recovered the value of his conservatory. And in America, tenants' improvements rendering the land more productive, have been allowed ; Ricketls v. Lostetter, 19 Ind. 125 ; and the costs of paving in front of building lots; Hale v. Citi/ nf Nciv Orleans, 18 Louisiana (Ann.), 321.] L 2 147 148 ACTIONS ON COVENANT FOR TITLE. Damages in case of eviction from I'dTt of tlie land. Deed is conclu- sive as to amount of purchase- money. AVhcrc there has been an eviction of part of tlie land sold, the mode in which damages are to be assessed will vary accord- ing as the failure of title takes place as to an undivided share of the land, or to an ascertained portion of it. In the former case, the vendor must refund an aliquot part of the purchase- money, according to the fractional part lost by the purchaser. In the latter case, evidence may be given of the quality of the specific piece from which the plaintiff has been ejected, and the law will apportion the damages to the measure of value between the land lost and the land preserved (/). Where the land is only held on lease, and there is a partial eviction by title paramount, the rent will bo apportioned {Jc). The damages then ought, according to the principle laid down before (/), to be the value of the part evicted for the unexpired portion of the term ; that is, the difference between the rent which would have been paid, and the profits which would hare been made. Where, however, the eviction is by the lessor himself, or any one claiming through him, there is no apportionment, but a com- plete suspension of all subsequently accruing rent (w?). Would this make any difference in the claim for damage? Where the damages are to be calculated upon the basis of the purchase-money, its amount if stated in the deed of con- veyance, cannot be contradicted by parol evidence. " Where any consideration is mentioned, if it is not said also, 'and for other considerations,' you cannot enter into any proof of any other : the reason is because it would be contrary to the deed ; for when the deed says, it is in consideration of such a par- ticular thing, that imports the whole consideration, and is negative to any other " (n). On the same principle evidence cannot be given that it was really smaller than is stated, or that it was never paid at all (o). One case may seem contra- (i) Pa-Kent, C. J., Morris v. Phelps, 5 Jolmson's Rep. 49, 55. [Brandt v. Foster, 5 Clarke (Iowa), 287. In one case in America, for the pui-pose of reduc- ing the damages to a nominal sum, parol evidence was admitted to show that nothing was in fact paid for the specific piece, and that it was included in the convej-ance by mistake ; Nutting v. Herbert, 35 New Hamps. 120.] Jk) Smith V. Malim/s, Cro. Jac. 160; Stevenson v. Lambard, 2 East, 575 ; Boodle V. Cambell, 7 M. & Gr. 386. (0 Williams v. BurreU, 1 C. B. 402, ante, p. 144. (m) Morrison v. Chadmch, 7 C. B. 266. (n) Per Lord Hardwcke, Peacock v. Monlc, 1 Ves. Sen. 128. (o) RowntreeY. Jacob, 2 Taunt. 141 ; Baler v. Dewey, 1 B. & C. 704. [But equity a recital that purchase-money has been paid mav be shown to be not ACTIONS ON COVENANT AGAINST INCUMBRANCES. 149 dictoiy, but is really not so. A deed containing a- general release of all debts, recited that the releasee had previously agreed to pay to the releasor the sum of 40/., and that " in consideration of the said sum of 40Z. being now so paid as hereinbefore is mentioned," and also in consideration of cer- tain other payments to him and J. S., " the receipts of which said several sums they did hereby acknowledge," he the plain- tiff releases the delenclant from all demands, &c. ; the action Avas for the 40?. which it was proved had never been paid. It was held that the words of the deed formed no estoppel, as the general words of the release were qualified by the recital, and that the sentence ought to be read, " In consideration of the sum of 40?. being now so agreed to be paid as aforesaid ; " while the subsequent words of receipt referred more properly to the payments which were to be made to the releasor and J. S. {p). [In the case of a covenant for further assurance the whole Covenant Tor value cannot be recovered till the ultimate damage is sustained. ^"'^^^^' ^^^ur- And if no damage is suffered in the lifetime of the ances- tor, the action must be brought by the heir and not by the executor (^).] The last species of covenant we shall notice under this head Covenant against is the covenant against incumbrances. There seems to be no ^"'^'^'"^^''^'ices. difference in principle between a covenant against incum- brances, and a covenant to pay them oft'. If so, the point is decided in England. The action was by the trustees of the defendant's wife on a covenant to pay off" incumbrances to the amount of 19,000?. They had paid nothing themselves, and no special damage was laid or proved ; it was held that the full amount of the incumbrances might be recovered. Lord Tenterden, C. J., said, " If the plaintiffs are only to recover a shilling damages, the covenant becomes of no value." And Patteson, J., said, " At law the trustees were entitled to have the estate unincumbered; how could that be enforced, unless they could recover the whole amount of the incumbrances in true ; Wilson v. Keating, 4 De Gex & J. 588 ; 27 Beav. 121 : 28 L. ,1. Ch. 895.] (p) Lampon v. Corke, 5 13. & A. 606. i{q) King V. Jones, 5 Taunt. 418, 428, The paragraph in tlie text is printed from the appendix to the first edition of this work.] ACTIONS ON COVENANT AGAINST INCUMBRANCES. an action on the covenant?" (r). The rule in America is different. There it is held that the damages are merely nominal, unless the plaintiff has paid something to their discharge (s). But that when he has extinguished the incum- brances he is entitled to an indemnity (/). I conceive that the rule laid down by the Court of King's Bench is the true one. The damages are not, as Mr. Sedg- wick seems to suppose, given in respect of a future contingent loss. They are the proper compensation for an actual and existing loss. The question is, how much is the value of the estate diminished at the moment by the existence of the incumbrances ? If interest has to be paid upon them, there is a clear loss of annual profit ; but suppose the interest is pro- vided for elsewhere, and the estate is merely an ultimate security, still the owner is damnified to the full amount of the incumbrances, if he should wish to sell the estate, to mortgage it, to settle it, or to charge portions upon it. True, he may not want to do any of these things at present, but as soon as he does want to do them, he will undoubtedly fail. It is no satisfaction to a man who has to break off a match, for instance, because he cannot effect a settlement, to be told that he may now bring an action, and obtain substantial damages. Nor is it any answer to say that he may himself pay off the incum- brance, and then sue ; because very likely he may have no ready money, and be unable to borrow any, on account of the in- cumbered condition of his estate ; in short the American doc- trine converts a covenant to pay off incumbrances into a cove- nant of indemity against incumbrances, which it is apprehended is a very different thing. Where, however, both present and contingent loss are (r) Lethhridrjev. Mytton, 2 B. & Ad. 772. [The author adds, in his appen- dix to the first edition, "Where an action is brought on a covenant against incumbrances, and the incumbrance is not necessary but only a contingent one, which may never occur, the damages will be nominal : Vane v. Lord Barnard, Gilb. Eq. Rep. 7."] (s) Prescott v. Truman, 4 Mass. 627 ; [Grayit v. Tallman, 20 N. Y. 191. But where the representation that the property was incumbered was made fraudulently, the amount of the mortgage was recovered ; Haiqht v. HaM, 19 N. Y. 464.] ' y y ^ (t) Dekivergnev. N orris, 7 Johnson's Hep. 358 ; ffall v. Dean, 13 Johnson's Rep. 105. Cases where the grantee has been actually evicted in consequence of the breach of covenant, of course come under difl'erent rules. See all the cases Sedg. Dam. 185—190. ACTIONS ON COVENANT TO RENEW. 151 negatived, the damages will obviously be only nominal ; for instance, when at the time of trial the incumbrance has ceased to exist, and its removal has caused no expense to the plaintiff (it). [The amount of damage recoverable for a breach of covenant Covenant to to renew was much discussed in a case in Ireland {x). The ^^"^^^• covenant was treated as not involving a contract that the re- newal would confer a good title (y), and it followed as a necessary consequence that the value of the renewal, for with- holding which damages were to be assessed, depended partly on the value of the land and partly on the title of the lessor. It was considered that if the lessor had no title or estate out of which a valid renewal could have been carved, the lessee lost nothing by the non-renewal, for under such circumstances a renewal would have been valueless (z).] (u) HerriclcY. Moore, 19 Maine, 313; {Smith v. J efts, 44 New Hamps, 482.] [(x\ Strong v. Kean, 13 Ir. L. R. 93 Ex. Cli.] {(y) Jb. , per Tigot, C. B., at p. 146.] [{z) lb., and H&e per Crampton, J., at p. 128.] CHAPTER VI. 1. Viorlc and lalov.r. 2. Contracts of hiring and service. Next to contracts of sale, probably the most common species of contract is that by which the labour of others is purchased for a limited time. Agreements of this sort are entered into with a view to the performance of a particular work, or the procuring of a certain amount of seryice, and the remuneration to the other party resolves itself into the price of the work, or his own wages or salary. I. As to contracts for work and labour. This case will be simple enough where the work has been done according to the contract. The measure of damages will be the contract price if any, or the value of the thing, if Extras. no price has been fixed. Where the work consists partly of work done under a special contract, and partly of extras added subsequently, the plaintiff may recover for the latter at once, on a quantum meruit, even though the time for paying for the work under the agreement has not an-ived. And a quantum meruit is the only way in which such extras can be sued for, unless there has been a special contract to meet them {a). In such an action the original contract must be put in stamped, that it may be seen what work was extra {I). Where there has been a contract for a specific work at a settled price, and deviations have been subsequently agreed on, the employer is not liable beyond the amount stipulated, unless he was in- (a) Robson v. Godfrey, 1 Stark. 275. [See as to the effect of special con- tracts, Ranger v. Great Western Ry. Co., 5 H. L. Ca. 72 ; Russell v. Sa da Bandeira, 13 C. B. N. S. 149 ; 32 L. J. C. P. 68 ; Stadhard v. Lee, 3 B. & S. 364; 32 L. J. Q. B. 75.] (b) Buxton V. Cornish, 12 M. & W. 426 ; but see Edie v. Kingsford, 14 C. B. 759 ; 23 L. J. C. P. 123. ACTIONS ON CONTRACTS FOR WORK AND LABOUR. 153 formed that the alterations would create additional expense, or must necessarily have known it (c). And where the plain- Deviations. tiff has contracted to supply a particular article of certain materials at a stated price, he cannot .by making it of superior materials obtain a right to an increased price ; nor can he, when it has once been delivered to the defendant, force him to return it on his refusal to pay such a price (d). Where the plaintiff was employed to construct a machine, by means of which he was to experiment on the best mode of carrying out defendant's patent, it was held that in an action for work, labour, and materials, he might recover not only the cost of the machine and his own labour, but also for his scientific skill, and the use of other machines necessarily kept idle while the experiments were going on (e). Interest will be recoverable under 3 & 4 W. IV. c. 42 (/), but not otherwise. On the other hand there may be a failure to carry out the contract, either through the plaintiff's default, or the refusal of the defendant to allow him to proceed in it. Where the contract is to do a specific piece of work, as for Claim for pay- instance, to build a house for an entire sum, there can be no ™';^* ^iGioi-e ' ' _ entire work has claim for payment of any part before the whole is finished (g). been completed ; But where the consideration is apportionable, as when a ship- wright agreed to put a ship into thorough repair, and no entire sum has been agreed on, it has been held that tlie person who is to do the work, may sue for payment as the benefit accrues," and recover pro tanlo {h). A fortiori where the consideration is apportioned by the agreement, and a price affixed to each item, as on a contract to deliver straw at the rate of three loads in a fortnight up to the 24th June, at the sum of d2>s. per load (/). It may be observed that the contract with an attorney is an entire one, to carry the suit to its termination, and he cannot recover costs for part of a (c) Lovelock v. King, 1 M. & Rob. 60. {d) Wilmot V. Smith, 3 C. & P. 453. (e) Grafton v. Armitage, 2 C. B. 336 ; Bird v. M'Gaherj, 2 C. & K. 707, (/) See ante, pp. 110, 111. (g) Rees v. Lines, 8 C. & P. 126 ; [Applehij v. Myers, L. R. 2 C. P. 651 ; 36 L. J. C. P. 331, in Ex. Cli.] (h) Roberts v. Havclock, 3 B. & Ad. 404. (i) Withers v. Reynolds, 2 B. & Ad. 882. 154 ACTIONS ON CONTRACTS FOR WORK AND LABOUR. or where it is not in accordance with the con- tract. Case in which plaintiff may sue on quantum meruit. suit which he has abandoned, unless he has given his client reasonable notice (j), or can show some satisfactory reason to dispense with such notice (Jc) ; but if his client refuses to supply him with money, he may, after notice, discontinue the proceedings, and sue for the work done (l). No action can be maintained upon a contract to do a certain thing at a stated price, where the plaintiff has himself failed to perform his part of the agreement. Nor can he recover even for the partial benefit the defendant has received, when the labour was expended upon the defendant's own property so as to be inseparable fi-om it; as, for instance, where the contract was to make three chandeliers complete for 10?.; or to cure a flock of sheep, the agreement being that the plaintiff was to be paid nothing unless he cured all, which he did not do (m). Here the retention of the benefit accruing fi'om the plaintiff's labour clearly raises no new imphed contract to pay for it, and the original contract has been broken. "Where, however, the original agreement has not been performed, but the plaintiff has done something which the defendant has accepted and retained, dealing with it in such a manner as to raise an implied contract to pay for it, the plaintiff may recover the value of the partial benefit, not upon the original contract, but upon a quantum meruit. In such a case he is only entitled to recover the value of the work done, and the materials supplied (n); and the inferiority of the work may be given in evidence in reduction of damages (o). No remu- neration at all can be recovered, when no benefit has been received. This may happen, either where work which might be useful has been performed unskilfully, or where work which is useless for the object in view has been performed even skilfully (p). ij ) Harris v. Oshourn, 2 C. & M. 629. (/.;) NichoUsY. Wilson, 11 M. &W. 106. (I) Vansandau v. Browne, 9 Bingh. 402. (m) Sinclair v. Bowles, 9 B. & C. 92 ; Bates v. Hudson, 6 D. & R. 3 ; [Munro v. Butt, 8 E. & B. 738.] • (n) Grounsell v. Lamh, 1 M. & W. 352 ; Lucas v. Godtvin, 3 Bini-h. N. C. 737 ; Chaj^el v. Hides, 2 C. & M. 214. (o) Basten v. Butter, 7 East, 479 ; Cousins v. Paddon, 2 C. M. & R. 547 ; and see ante, p. 71. (p) Hill V. Featlierstonhaugli, 7 Bingh. 569 ; Huntley v. Bxdwer, 6 Bingh. N. C. 111. ^ ' ° ACTIONS ON CONTRACTS OF HIRING. 155 Where a party contracts to do work at a certain price, anu his employer afterwards does part of it, or furnishes part of the materials which the former had undertaken to supply, this is matter of reduction of damages, not of set-off (q). There is nothing peculiar in an attorney's claim to recover costs, except the statutory regulations as to delivering a signed bill, and getting them taxed (r). Where the nonperformance of the contract arises, not from Damages when any failure on the part of the plaintiff, but from some act of prevented pei- the defendant, who absolutely refuses to perform, or renders fomance of himself incapable of performing his share of the contract, the ' ' plaintiff may rescind the contract and sue at once, on a quantum meruit, for what he has done. This was decided in a case where the plaintiff had been engaged by the defendant to write a treatise on Costume and Ancient Armour, to be published in the Juvenile Library. When a certain progress had been made in the work, the defendants abandoned the publication for which it was intended. The declaration contained a count for work and labour, upon which it was held that the plaintiff might recover on the principle stated above (s). II. As to contracts of hiring. No difficulty can arise, when the action is for wages earned by virtue of a contract which has been completely performed. When the contract is to serve for a specified time for a when plaintiff . r. -I 1 1 • , • «^ , ,11 J.1 has not com- specified sum, the plaintiff cannot recover that sum upon the pieted time of contract unless he has performed it: nor upon a quantum service. meruit, unless the nonperformance arises from the defendant's act ; therefore where a seaman was hired for a certain sum, "provided he proceeds, continues, and does his duty on board for the voyage," and he died before its arrival, it was held that no wages could be claimed either on the contract, or upon a quatitum meruit (t). On the same principle, where a servant (q) Turner v. Diaper, 2 M. & G, 241 ; Neivton v. Forstcr, 12 M. & W. 772. (»•) 6 & 7 Vict. c. 73, s. 37. As to evidence in reduction of damages, see ante, p. 69. (s) Planche v. Colhurn, 8 Bingh. 14. [See Prichett v. Badger, 1 C. B. N. S. 296 ; 26 L. J. C. P. 33 ; Inchbald v. Western Neilgherry Coffee Co., 17 C. B. N. S. 733 ; 34 L. J. C. P. 15.] [t) Cutter V. Poioell, 6 T. R. 320, 2 Sm. L. Ca. 1. [It may be remarked, that the rule by which a seaman's right to wages was made contingent on the earning of freight was done away with by the Merchant Shipping Act, 18i34, 156 ACTIONS ON CONTRACTS OF HIRING. Difference be- tween contracts to pay for service, and contracts to employ. is dismissed for misconduct, he cannot recover any wages due to him since the hist pay-day {u). Where the service has been determined before the natural time by the wrongful act of the defendant, some questions of nicety arise, both as to the amount that may be recovered, and the mode in which it must be sued for. In the first place we may remark that where the contract consists of independent covenants or promises, by which, in consideration that A. shall serve B. for so many weeks, &c., B. promises to pay A. so much per week during the specified time, &c., there is no implied covenant that B. shall retain A. In his service during that time. A. may recover payment during the whole time, whether he is allowed to serve or not, provided he is ready and willing, and offers to do so, and is only prevented from doing so by B. But B. is under no obhgation either to continue the business for which he engaged him, or to employ him in it. Consequently a declaration alleging as a breach in such a case dismissal from service is bad, and no damages can be recovered in respect of it (x). 17 & 18 Vict. c. 104, g. 83. The rule never extended to the master j Ilawlins V. TivizcU, 5 E. & B. 883 ; 25 L. J. Q. B. 160.] (u) Ridgtvayv. Hungcrford Market Co., 3 A. & E. 171. See for instances of such dismissal, learner y. Robinson, 5 B. & Ad. 789 ; Amoi' v. Fearon, 9 A. & E. 548 ; Gould v. Webb, 4 E. & B. 933. The act need not involve any moral delinquency ; Turner v. Mason, 14 M. & W, 112 ; Smith v. Thompson, 8 C. B. 44 ; [Horton v. M'Afurtri/, 29 L. J. Ex. 260 ; and want of skill to do vi^ork undertaken justifies dismissal ; Harmer v. Corne- lius, 5 C. B. N. S. 236 ; 28 L. J. C. P. 85.] It is not necessary for the master to tell the servant the grounds of hi.s dismissal ; BailUe v. Kell, 4 Bingh. N. C. 638 ; nor even to know them at the time, provided a suffi- cient ground for dismissal did then exist ; Ridgway v. Ilmigerford Market Co., 3 A. & E. 171 ; Wiletts v. Green, 3 C. & K. 59 ; Spotsicood v. Barrow, 5 Exch. 110 ; though he may by his mode of pleading make his knowledge of the misconduct material, and necessary to be proved ; Mercer v. Whall, 5 Q. B. 447 ; Cussons v. Skinner, 11 M. & W. 161. [Disability from temporary sick- ness will not disentitle a servant to wages, if the contract is treated as subsist- ing throughout ; Cuckson v. Stones, 1 E. & E. 248 ; 28 L. J. Q. B. 25. Per- manent illness excuses non-performance of a contract for personal sei-vice ; Boast v. Firth, L. R. 4 C. P. 1 ; 38 L. J. C. P. 1. So the death of either master or servant puts an end to the contract in the absence of any stipulation to the contrary; Farroio v. Wilso7i, L. R. 4 C. P. 744 ; 38 L. J. C. P. 326. The premium paid with an apprentice cannot be recovered back if the master dies • Whincup V. Hughes, L. E. 6 C. P. 78; 40 L. J. C. P. 104.] (x) Aspdin v. Austin, 5 Q. B. 671 ; Dunn v. Sayles, 5 Q. B. 685. See too Burton v. Great Northern Ry., 9 Exch. 507. [But these two first-men- tioned cases have been much obsei-ved upon. See j^er Erie, C. J , M'lnture V. Belcher, 14 C. B. N. S. 654, 32 L. J. C. P. 254. Under the particular circumstances of Aspdin v. Austin, Cockburn, C. J., has subsequently expressed ACTIONS ON CONTRACTS OF HIRING. 157 But the words " agreed," " agreement," are the words of both {y), and where they are used, the promise by one party to do a thing, becomes a promise by the other party to permit it to be done {z). Therefore where it was agreed between plaintiff and defendants (a public Company), that the plaintiff, as attorney of the Company, should receive a salary of 100/. per annum, in lieu of rendering his annual bill of costs, and should for such salary advise the Company in all matters connected with their business, and attend upon them when required, this was held to be an agreement to continue the relation of attorney and client for at least one year, and that an action would lie for dismissal before the year, and that the agent could support an alleged promise to retain and employ. The word "employ," however, merely means to "engage in service," and neither means to supply with work, nor to employ exclvsively. And the agreement being mutual, not independent, does not amount to a promise to pay after dismissal {a). An agreement to pay a salary of so much per annum is merely a yearly hiring, at so much per annum while the service lasts (/>). "Where there is a contract to employ for a defined time, and Remedy for the servant has been dismissed without just cause, he may sue ™gga°L°'^ specially on the contract to employ him : and this action may be commenced at once upon the dismissal {c). And where the service is to commence on a future day, and before the arrival of that day, the employer positively renounces the covenant, even without doing anything to incapacitate himself from performing it at the appointed day, the servant may sue at once. And the jury, in assessing the damages, would be justi- fied in looking at all that had happened or was likely to happen, an opinion tlaat it was rightly decided. See Churchward v. The Queen, L. R. 1 Q. B. at p. 191.] (y) Pordage v. Cole, 1 Wms. Saund. 319 U). [1 Wms. Notes to Saund. 548.] (z) Elderton v. Emmens, 6 C. B. 160 ; affirmed in Dom. Proc., 13 C. B. 495 ; 4 H. L. C. 625 ; [M'Intyre v. Belcher, supra ; Bealey v. Stuart, 7 H. & N. 753 ; 31 L. J. Ex. 2S1 ; and see Churchward v. Tfie Queen, L. R. 1 Q. B. 173 ; and not voluntarily to do anything which will indirectly prevent its being done ; Stirlimj v. Maitland, 5 B. & S. 840 ; 34 L. J.Q. B. 1 ; Harrington v. Churchward, 29 L. J. Ch. 521. And see Whittle y. Frankland, 2 B. & S. 49 ; 31 L. J. M. C. 81.] (a) Elderton v. Emmens, idji sup. (b) Pjkl, 175. (c) Pagani v. Gandolji, 2 C. & P. 370. 158 Contract does not subsist for any collateral purpose. Measure of damai'es. ACTIONS ON CONTRACTS OF HIRING. to increase or mitigate the loss of the plaintiff down to the day of trial (d). By bringing this action the plaintiff treats the covenant to hire as still existing, and may recover damages upon it for the period of service up to dismissal ; and therefore if the jury do not give damages for such time, he cannot bring indebitatus assumpsit afterwards (e). In such a case, however, though the contract is treated as subsisting for the purpose of suing upon it, it cannot be taken to subsist for any ulterior or collateral purpose. The plaintiff was engaged to superintend mines in America for three years, with a stipulation that he should not be dismissed without a year's notice, or a year's salary, and that if he stayed at the mines three years, he should have the expenses of his family defi-ayed on their return. He was dismissed in eighteen months after his arrival, without either a year's notice or salary. It was held, that although the contract had not been determined, in the only mode agreed on, it could not be con- sidered as subsisting for the whole time originally contem- plated, so as to entitle him to his third year's salary, and the expenses of his family on their return (/). The measure of damages in this action is the actual loss incurred, which may be much less than the wages for the un- expired period of service, where another employment may be easily obtained (g). "Where, on a yearly hiring, the plaintiff is dismissed before the termination of the engagement, he is generally given his salary up to the end of the current year (h). Where the contract was for two years, with a fixed salary and half profits, and the plaintiff was dismissed at the end of four months and a half, the jury gave him a year's salary, and his share of the profits for twelve months, which was held not to be excessive (/). [No allowance can be made in the nature of (d) ffochster v. Be Latour, 2 E. & B. 678. [And see Frost v. Knight, L. II. 7 Ex. Ill ; 41 L. J. Ex. 78, in Ex. Cli.] (e) Goodman v. Pocock, 15 Q. B. 576. (/) French v. BrooTces, 6 Bingli. 354. (y) Eldcrton v. Emmens, 6 C. B. 178 ; Goodman v. Pocock, 15 Q. B. 583, per Erie, J. (h) Beeston v. CoUyer, 4 Bingh. 309 ; Doicn v. Pinto, 9 Exch. 327. (j) Smith V. Thom,pson, 8 C. B. 44. [In winding up companies the com- pensation to managers engaged for a term has been calculated upon the prin- ciple of ascertaining the present value of an annuity of a sum equal to the full salaiy for the unexpired term, having regard to the risk to health and life and making a deduction for the liberty of obtaining fresh appointments; Yelland's case, L. 11. 4 Eq. 350 ; Ex parte Clark, L. R. 7 Eq. 550 ] ACTIONS ON CONTRACTS OF HIRmG. 159 pretium affedionis, nor any reference to any pain that might be felt by the plaintiff, on the ground that he was attached to the place (A-).] A right of action for this cause passes to assignees in bank- ruptcy, since the injury to the personal estate is the primary and substantial cause of action (/ ). On the other hand, the plaintiff may treat the contract as rescinded, and sue at once for the time he has actually served. In this form of action he cannot recover anything more than wages for such time (w). And under non-assumpsit, the de- fendant may give in evidence the worthlessness of his services, and the jury may give damages accordingly («). It has been held that a servant improperly dismissed in the Doctrine of con- . _ - StrlllCtlVG SGI \ ICC. middle of his time, might wait till the period had expn-ed, and then sue in mdehitatus assumpsit, for the whole period, on the doctrine of constructive service (o). That doctrine, how- ever, after being severely commented upon in Smith v. Hay- ward (p), seems to have been tacitly overruled by the Exchequer Chamber in Elderton v. Emmens (q), and expressly by Patteson, J., and Erie, J., in Goodmafi v. PococJc (r). The two alternatives previously mentioned are therefore the only ones open. In the case of menial servants, usage has established the Menial servants, right to dismiss them at any time, by giving them a month's notice or a month's wages (s). A head-gardener, living within the demesne, at a salary of lOOZ. a-year, was held to be a menial within this rule (t), [and a huntsman, though hired at yearly wages, and with the right to receive perquisites which could not be fully received till the end of the year (w) ;] [{k) Per Erie, C. J., Beclham v. Drake, 2 H. L. Ca. 607. This passage in the text is printed from the appendix to the first edition of this work.] (0 Brake V. Beckham, 11 M. & W. 315; 2 H. L. Ca. 579 ; reversing ^eci- ham V. Brake, 8 M. & W. 816. (m) Archardv. Hornor, 3 C. & P. 319; Smith v. Hayivard,! A. &E. 514 ; Broxham v. Wagstaffe, 5 Jur. 815. (n) BaiUie v. Kell, 4 Bingh. N. C. 638. (oj Gandell v. Ponticjny, 4 Camp. 375 ; Collins v. Price, 5 Bingh. 132 ; Smith V. Kingsford, 3 Sco. 279. (p) 7 A. & E. 511. (q) 6 C. B. 160, 178. (r) 15 Q. B. 576. (s) Broxham v. Wagstafe, 5 Jur. 845. i^l) Nouian v. Ablctt, 2 C. M. & R. 51. [(u) Nicoll V. Grcavc:^, 17 C. B. N. S. 27 ; 33 L. J. C. V. 259.] IGO ACTIONS ON CONTRACTS OF HIRING. Actions for dis- missing without due notice. Salary now ap- portionable by statute. but not a warehouseman (x), nor a clerk (ij), nor a gover- ness (z). Where a menial, or other person, whose service is of this nature, viz., determinable by a month's notice or wages, is dismissed without either, the declaration must be special, for not giving notice (a). Tliis, however, is quite different from the case of a contract to employ for a specific time, and a breach of it by improper dismissal. In the latter case, as we have seen (b), the declaration must be for breach of the entire agreement to hire, and damages must be given, not only for the time which has been served, but for that which has not. But in the former case, the declaration is only for breach of the particular point as to notice. The damages for this are liqui- dated, viz., one month's wages (c); and the plaintiff may either recover in a separate count, or a separate action, for the bygone service (d). [By the Apportionment Act, 1870 (33 & 34 Vict. c. 35,) salaries have been made apportionable (e).] (x) Faivcett r. Cash, 5 B. & Ad. 904. (y) [Fairman v. Oakford, 5 H. & N. 635 ; 29 L. J. Ex. 459 ;] Beeston v. Colhjer, 4 Bingh 309. (z) Todd V. Kerrich, 8 Exch. 151 ; 22 L. J. Ex. 1. (a) Fcwings t. Tisdal, 1 Exch. 295 ; oven-uling Eardley v. Price, 2 B. & P. N. R. 333. (h) Ante, p. 157. (c) Fewings v. Tindal ; French v. Broolces, 6 Bingh. 354. (cl) Hartley v. Harman, 11 A. & E. 798 ; affirmed Goodman v. Pocock, 15 Q. B. 580. [(e) See sections 1 & 2, cited at length, post, p. 186. By s. 5, the word "annuities" includes salaries and 25ensions. Salaries had been held not to come within the Aijportionment Act, 4 & 5 Will. IV. c. 22, s. 2 ; Lowndes v. Earl of Stamford and Warrington, 18 Q. B. 425 ; 21 L. J. Q. B. 371.] CHAPTER VII. DEBT. The damages in an action of debt are in general merely Damages in debt nominal for its detention (a), thongli the jury may give sub- ral™^^^ stantial damages if they think fit (&). In some cases, however, the damages for detention may form a very important part of the claim ; as, for instance, .in debt on a mortgage deed, where the principal and interest are to be paid on a given day, the interest after that day can only be recovered as damages. Accordingly a plea which only answers the debt, and not the damages, is bad {c) ; but if it professes to be an answer to *' the causes of action," it will be sufficient, even though pleaded to particular special counts, while the damages are laid as a separate sum at the end of the declaration. For each count must be read with so much of the damages as are applicable to it {d). We have seen in what cases interest is given as a matter of interest. law (e). And by 3 & 4 W. IV. c. 42, s. 28, upon all debts payable at a certain time or otherwise, the jury may, if they think fit, give the current interest as damages from the time of payment, if payable by written agreement at a certain time; if otherwise, then from demand of payment in writing, if notice is given that interest would be claimed (/). Where a plaintiff has actually received payment of the debt, (a) Wilde v. Clarkson, 6 T. R. 304. (b) Per Lord Abinger, C. B., Henry v. Earl, 8 M. & W. 233. (c) Loioev. Steele, 15 M. & W. 380 : [Ash v. Povppeville, L. R. 3 Q. B. 86 37 L. J. Q. B. 55.] , (d) Gell V. Burr/ess, 7 C. B. 16. (e) Ante, p. 105. {/) See ante, p. 111. 162 NOMINAL DAMAGES IN DEBT. Case where pay- ment since action brouglit. Action cannot he cannot commence an action for nominal damages (g). If l,e commenced ^^^^ plaintiff means to demand further damages as interest, he lor nominal i / \ -r-> i i -u damages in debt, ought not to receive the principal (h). But when he has com- menced an action, if the debt is paid during the course of it, he may proceed for nominal damages to entitle him to costs (i). And in such a case the verdict should be entered for the whole sum due and paid since action brought, with Is. damages, and if execution is issued for more than the Is. damages and costs, the defendant's course is to apply to the Court for relief (j). But where the payment has been made after action, and the plaintiff has either waived or accepted damages for its deten- tion, he can have no further claim for damages, and cannot proceed for costs, which only arise out of damages. An action was brought on a cheque for 2bl. Defendant after action com- menced paid the amount, and offered 1?. for expenses, which plaintiff refused, saying he would pay them himself Held that the jury was right in entering verdict for defendant when action was continued {k). Lord Denman seems to put this on the ground that after the debt was paid, the plaintiff could not proceed for merely nominal damages. This, however, is con- trary to Nosotti v. Page. It would seem that the real ground of the decision was, that the sum was accepted in satisfaction, not only of the debt, but of all damages and costs arising from its detention, as will be seen from the argument and observa- tions of Erie, J. (/). Consequently, there were no damages to proceed for. Action for 20/. for use and occupation : pleas, 1st, except as to 12/., nimquam indelitaius ; 2nd, as to 11/. parcel of the 12/., in bar of further maintenance, payment of 11/., after writ and before declaration, in satisfaction thereof and all causes of action in respect thereof ; 3rd, as to 1/. payment into court. Plaintiff" joined issue on 1st and 2nd pleas, and took money (g) Beaumont v. Greathead, 2 C. B. 494 ; [and see, per Willes, J., Tetley V. Wanless, L. R. 2 Ex. at p. 280 ; 36 L. J. Ex. at p. 156 ; in Ex. Ch.] (h) Dixon v. Parkes, 1 Esp. 110. [{i} Nosotti V. Page, 10 C. B. 643 ; Goochoin v. Cremer, 18 Q. B. 757 : Kemp V. Balls, 10 Ex. 607.] (j) Nosotti V. Page, IOC. B. 643. (/•) Thame v. Boast, 12 Q. B. 808. (I) lb., at p. 813 ; [and in Goodioiny. Cremer, IS Q. B., at p. 761. Seeal.so as to its being a qtiestion of fact whether the payment is made on account of the debt only, or of dclit and damages, per Willes, J., in Tclleii v. Wanless, L. R. 2 Ex. at p. 280 ; 36 L. J. Ex. at p. 156 in Ex. Ch.] NOMINAL DAMAGES IN DEBT. 163 out of court on 3rcl. It appeared on trial that the debt had never exceeded 12?., and that after the writ had issued, but before plaintiff or defendant knew of it, plaintiff received the IIZ. mentioned in 2nd plea. Plaintiff contended, that as he did not know that costs had been incurred, he could not have received the 11/. in satisfaction of the causes of action, one of which was the costs to which he was not aware that he was entitled. The judge directed Is. damages to be entered. Held wrong. As to 1st plea, the verdict plainly ought to be entered for the defendant. As to 2nd, the evidence proved that he had accepted 11?. in satisfaction of it. And as to the costs arising from the action to recover it, these were exactly the same costs as the plaintiff was entitled to recover on taking the money out of court. Consequently, no more damages could be recovered under the 2nd count than those which were actually paid for under the 3rd count. Verdict was entered on the general issue for defendant ; damages were struck out, and postea to defendant {m). This decision seems to have gone on the ground that the only damage caused by the detention of the 11?. was the cost of suing for it. If so, as such cost was received by the plaintiff on the 3rd plea («), the damage was exhausted, and there was no further cause of action. But it seems pretty clear that there was a nominal damage caused by the detention, for which, when the action had once commenced, the plaintiff could continue it (o), unless this damage had itself been satisfied by the payment of 11/., as in Thame v. Boa&t. This was quite distinct from the costs of suit. Perhaps, however, the explanation is, that such nominal damage is only a fiction, maintained to enable the plaintiff to get his costs ; and as these were provided for under the 3rd count, the result of maintaining the fiction would have been to give him the costs of carrying out an action beyond its necessary limits. In a later case the action was for goods sold. Plea, except as to 22/. 8s. od. never indebted, and as to that sum payment after action brought of 22?. 8s. M. to the plaintiff, who ac- cepted it in satisfaction of the said claim of 22?. 8s. 3rf., and of (m) Horner Y. Deiiham, 12 Q. C. 813, n. \n) Rumhdow v. Whallei/, 16 Q. B. 397. i^o) Nosntti V. Parje, 10 C. B. 6-13. 164 NOMINAL DAMAGES IN DEBT. all clamages accrued in respect thereof. At the trial the plain- tiff offered no evidence on the first issue, and defendant proved payment of the sum alleged to the plaintiff, who accepted it, no mention being made of costs. The judge was of opinion that the plaintiff ought to have confessed the plea, and taken his costs under Eeg. Gen. T. T. 1853, pi. 22, and ordered a verdict for the defendant, with leave to move to enter nominal damages. The Court held, that the plaintiff was entitled to judgment in his favour, for that the plea was not proved, unless the defendant showed, either that the plaintiff consented to accept the 22/. 8s. Zd. in satisfaction of the debt, damages, and costs, or that the costs were paid. Bramwell, B., said, " With respect to the 22nd PI. rule, I will only add that it never could have been the intention of its framers that the rule should alter the law, and make a plea true which was not so before, but only that a plaintiff' might have an opportunity of confessing a plea containing matter of defence arising after action brought. The case of Beaumont v. Greathead, merely amounts to this, that nominal damages are inappreciable when they do not increase the actual claim. In the case of Thame V. Boast, all that the Court decided was, that, in point of fact, the money was paid and received in satisfaction of both debt and damages, and the question was not discussed whether it could be a satisfaction in point of law " (q). It is curious that Horner v. Denham was not cited on either side, as it seems exactly in point. There the Court seem to have thought, as the judge did here, that as all the costs incurred by the plain- tiff at the time the payment was made, were offered to him by the plea, he had no right to go on, unless he claimed something more than merely these costs. This certainly seems justice ; whether it is law is another matter (?■). (q) Cool: V. Hopewell, 11 Excli. 555, 559. [(7-) The paragraph in the text is printed from the appendix to the first edition of this work. In Tetley v. Wanlcss, post, p. 165, a difficulty was raised in argument which does not appear to have been felt by Wightman, J. , who tried Oook v. Hopcivell, viz., that the nile in question, (Rule 22, Trin. Term, 1853,) in terms only applies to cases where a plea containing a defence arising after the commence- ment of the action is pleaded, together with pleas of defences arising before the commencement of the action. The rule does not in terms provide that a plaintiif may confess such a plea, and thereupon be entitled to his costs up to the time of pleading, when such a plea is pleaded alone. No judgment was given upon thi.=^ point.] ACTIONS OF DEBT. 165 [In a recent case in an action of debt, the defendant pleaded Release after to the further maintenance of tlie action a composition deed '^ '"" Jiuugi . executed by a statutory majority of his creditors under the Bankruptcy Act, 1861, containing a release of "all actions, suits, debts, claims, or demands," which the creditors had or had had against the defendant, and an acceptance of the stipu- lated composition in full satisfaction of the several sums of money owing to them. The action was commenced before the execution of the deed. A verdict having been entered for the defendant, and a rule to enter it for the plaintiff and for judg- ment non ohsfanfe veredicto having been discharged by the Court of Exchequer, it was argued in the Exchequer Chamber that the effect of a release after action brought of a debt which was the cause of action was only to discharge the debt itself, subject to the creditor's right to go on with the action to obtain a judgment for nominal damages to which judgment the law would annex costs. The Court of Exchequer Chamber gaA'e judgment for the defendant, considering that the release being of all " actions, suits, debts, claims, or demands," the debt and action were both gone (s).] As a plea of tender alleges that the defendant has been ready Tender. to pay at all times, if the plea is found for the defendant, the plaintiff cannot obtain any damages, because there has been no detention of the debt (/). As to damages in debt for a penalty given by statute, see Penalty. mite, p. 2. As to the cases in which a penalty may be recovered as Liquidated liquidated damages, see ante, p. 99. damages. In debt upon a bond for performance of covenants, condi- Provisions of tions, &c., the plaintiff formerly not only had judgment, but was ?^^*j|j® ^ ^J^ entitled to take out execution for the whole penalty, together with his costs, without any regard to the amount of damage he had suffered («). But now by 8 and 9 W. III. c. 11, s. 8, it is enacted, that [(s) Tetlei/ V. Wanless, L. R. 2 Ex. 21 ; 36 L. J. Ex. 25 ; affirmed, L. R. 2 Ex. 275 ; 36 L. J. Ex. 153. The plea was, in the first instance, pleaded in bar, but the Court of Exchequer amended it by making it a plea to the further maintenance of the action. ] (t^ Cutlers' Company Y. Ilursler, Comb. 224 ; 1 W. Saund. 33 d ; [1 Wms. Notes to Saund. 42.] (it) 1 W. Saund. 57, n. 1 ; [1 Wms. Notes to Saund. 67, n. 1.] 166 ACTIONS OF DEBT. Statute is com- pulsory. How judgment to be entered. in all actions in any court of record npon any bond, or on any penal sum, for non -performance of any covenants or agree- ments, contained in any indenture, deed or writing, the plain- tiff may assign as many breaches as he shall think fit ; and the jury shall assess not only such damages and costs as were there- tofore usually done, but also damages for such of the breaches as the plaintiff shall prove to have been broken, and the like judgment shall be entered on 'such verdict as theretofore was usually done. And if judgment shall be given for the plaintiff on demurrer, or by confession, or nil dicit, the plaintiff may suggest on the roll as many breaches as he shall think fit, which shall be inquired into by a jury summoned to appear before the sheriff (x). After the damages assessed and costs have been satisfied, either before or after execution, a stay of execution is to be entered on the record; but the judgment shall notwithstanding remain as a further security for future breaches. This statute is compulsory in all cases to which it applies. Therefore when the plaintiff has judgment on verdict, or on demurrer, or by default, he must have the damages assessed by a jury, otherwise the verdict in the former case will be erroneous, and a venire de novo awarded ; or in the latter case, the execution will be set aside (y). "The like judgment," however, "shall be entered on such verdict as heretofore hath been done." Therefore, at the trial, the juiy must find a verdict for the plaintiff with Is. damages and 405. costs, as before. And the judgment is to recover the debt, i. e., the penalty, and Is, damages, for detention, and 40s. costs ; together with the costs of increase, which include of course the costs of trial (z). Where breaches are assigned, whether in the declaration or in the replication, the jury who try the cause may assess the (x) 3 & 4 W. IV. c. 42, s. 16. iy) Drarje v. Brand, 2 Wils. 377 ; Hardy v. Bern, 5 T. R. 540, 636 ; Roles V. Rosewell, 5 T. R. 538 ; Walcot v. Goulding, S T. R. 126 ; over- ruling Walker v. Priestley, Com. Rep. 376 ; Dry v. Bond, Bull N. P. 164, [The provisions of the statute cannot be waived by agreement between the parties ; Montgomery v. Byrne, 2 Ir. C. L. R. 230.] (2) 1 W. Saund. 58, d ; [1 Wms. Notes to Saund. 75. The writ of execu- tion, if sued out, must be for the entire penalty, damages, and costs ; but it must be indorsed to levy only the damages assessed for the breaches, the costs found by the jury, and the costs of increase, and the costs of execution. If the damages assessed and the charge of execution exceed the penalty of the bond, the execu- tion must be only for the amount of the penalty and costs of increase. 1 W. Saund. 58 e; 1 Wms. Notes to Saund. 77; 1 Chitty's Arch. Pr. 611, 12th ed.] ACTIONS OF DEBT. 167 damages without a special venire ad inquirendum. But where they are suggested, a special venire is necessary (a). The plaintiff may choose any of the following alternatives Mode of suing in suing. He may state the condition of the bond in his g°!^,g^^!^^^. ° declaration, and assign several breaches under the statute. He may declare on the bond generally. In this case, if defendant suffer judgment by confession or nil dicit, or the plaintiff have judgment on demurrer, breaches may be suggested. Or the defendant may plead to the declaration. If his plea be one to which the plaintiff might reply at common law, without assigning breaches, as non est factum, covin, he may do so, aud enter a distinct and separate suggestion of breaches under the statute, whether before or after judgment (b) ; but he cannot join an issue to a plea, and a fi-esh suggestion in the same replication (c). If the defendant plead so as that the plaintiff must have assigned a breach at common law, e. g. general performance, the plaintiff must assign breaches still, but may by virtue of the statute assign several (d). Where the plaintiff does not assig-n damages at first, and the defendant, setting out the conditions, pleads performance to part and an excuse for the residue ; " then as to the part of the condition as to which performance is pleaded, the plaintiff may assign one or more breaches : but as to the part of which performance is not pleaded, but is excused, there must be a suggestion ; or if the matter of excuse is traversed, then there must be no assignment but a suggestion of breaches, the truth of which, without any issue, must be tried with a view to ascertain the amount of damages if the issue on the traverse is found for the plaintiff, otherwise not " (e). This statute extends to all bonds and deeds for the perform- ance of covenants, or payment of money, which are of a divisible nature, and capable of only a partial breach ; or fi'om the viola- To what cases the statute extends. (a) ParUns v. ffmclsJiaw, 2 St. 381 ; Quin v. Kinr/, 1 M. &. W. 42; Scott V. Staley, 4 B. N. C. 724. (b) Ethersey v. JacJcson, 8 T. R. 255 ; Homfray v. Righy, 5 M. & S. 60. (c) De La Rue v. Stewart, 2 B. & P. N. R. 362. {d) Plomer v. Ross, 5 Taunt. 386. (e) Parke, B., Wehb v. James, 8 M. & W. 645, 658. See 2 W. Saund. 187, a, et seq. 168 ACTIONS OF DEBT. tion of which, only part of the damage guarded against may arise. It includes, therefore, bonds for the payment of money by instalments {/) ; for the payment of an annuity {g) ; for the performance of an award {h) ; and where a bond is conditioned for the payment of a single sum, and also for the performance of other covenants, breaches must be assigned, though the action is merely brought to recover the single sum, for which purpose it is like a common money bond (/) : for in all such cases, as the plaintiff would have been entitled at law to issue execution to the full amount of his judgment, the defendant would have been forced to an expensive remedy in equity. And it applies equally whether the covenants, &c., are con- tained in the same deed or writing, or in a different one {Tc). When it does The Statute does not extend to bail-bonds (/), nor replevin app y. bonds (m), because the Court can give such relief as a Court of Equity could, and the form of the bond ascertains the value of the thing which it is taken to secure (n) ; nor to actions by assignee of a bond, given to the Lord Chancellor by a petition- ing creditor, on suing out a commission of bankruptcy, because he has authority himself to assess damages upon it {o) ; nor to money-bonds for payment of a sum certain at a day certain, against which the Court can relieve on payment of the money due, by 4 Ann. c. 16, s. 13 {p) ; nor to post obit bonds {q)', nor to bonds for payment of interest and principal, where both have become due (r), even though the money became payable in consequence of certain provisions in an indenture of even date, provided that by the course of pleading the jury have {/) Willoughby v. Swinton, 6 East, 550 ; [Harrinnton v. Coxe, 3 Ir. C. L. 87.] {q) Walcot V. Gotddinrj, 8 T. R. 126; [Rijan v. Massy, 2 Ir. C. L. 642.] (/(.) Welch V. Ireland, 6 East, 613. (i) Quin V. King, 1 M. & W. 42. (k) 1 W. Saund. 58, n. 1 ; [1 Wms. Notes to Saiuid. 68.] {I) Moody V. Pheasant, 2 B. & P. 446. (m) Middkton v. Bryan, 3 M. & S. 155. («) Ibid. ; 10 Bingh. 131, Tindal, C. J. [See now as to replevin bonds, 19 & 20 Vict. c. 108, ss. 63, seqq., tlie C. L. P. Act, 1860, 23 & 24 Vict, c. 126, s. 22, and the County Court Rules, 1867, 259, ser/g.] io) Smithey v. Edmonson, 3 East, 22 ; Smith x. Broomhead, 7 T. R. 300. ' -.ol^' ^V'VVr"^' "^ *'^""'' 2 B. & C. 90, 92. [Under the C. L. P. Act, 1860, 23 & 24 Vict. c. 126, s. 25, by leave of a judge, money may be paid into court m an action on a money bond. ] (5) Ibid. ; Cardozo v. Hardy, 2 B. Moore 220. (>•) Smith V. Bond, 10 Bingh. 125. ' ' ACTIONS OF DEBT. 169 found that tlie money had become payable (s) ; nor to bonds for payment of principal and interest, with proviso that on default in paying the interest, the whole amount of principal and interest should become due (i). But where the bond is for payment of principal on a future day, and interest in the meantime, and the bond becomes forfeited before the day by a default in the interest, the statute applies (u). It does not extend to judgment entered upon a warrant of attorney to secure a sum by instalments ; though the Court, if necessary, would direct an issue to inquire whether the instalments had been paid (x) ; or to secure an annuity (y) ; because in sucli a case, if execution were issued for more than the arrears due, " the Court would have set it aside, or in case of any mistake have referred it to their officer, or if necessary to a jury, to say for what sum the execution ought to stand" {s). And the rule is the same where the warrant of attorney is collateral security for a bond for the same purpose (a). But where a bond was nominally absolute for payment of a particular sum, but by indenture of same date reciting the bond, it was agreed that it should stand as security for all sums of money which then were, or might afterwards become, due from the obligor of the bond ; this was held to be a mere evasion of the statute, and that an assignment of breaches was necessary (b). It is not necessary for the Crown to assign breaches under this statute, and if any one breach is proved it is entitled to judgment (c). On the whole current of authorities, it appears that no more No more than than the amount of the penalty and costs can be recovered on ^™°1^ * "^^j a bond ; because the penalty ascertains the damages by consent costs can be of the parties (d) ; and upon payment of the penalty and costs ^oTd^^'^'^ °° ^ the Court will order satisfaction to be acknowledged (p). (s) Ibid. ; Darbishire v. Butler, 5 B. Moore, 198. (t) James v. Thomas, 5 B. & Ad. 40. (m) Tighe v. Grafter, 2 Taunt. 387 ; Vansandau v. , 1 B. & A. 214. (x) Cox V. Rodbard, 3 Ta.unt. 74 ; Kinncrsley v. Mussen, 5 Taunt. 264. i^y) Shaio v. Marq. Worcester, 6 Bingli. 385. (z) Tindal, C. J., ibid. 389. {a) Austcrbury v. Morgan, 2 Taunt. 195. (b) Hurst V. Jennings, 5 B. & C. 650. (c) Per Alexander, C. B., R. v. Peto, 1 Y. & J. 171. \d) White V. Sealy, Dougl. 49. (e) Ibid. : Brangwiny. Perrot, 2W. Bl. 1190 ; Wildex. Clarhson, 6 T. R. 303 ; overruling Lord Lonsdale v. Church, 2 T. R. 388 ; Clarice v. Seton, 5 170 ACTIONS OF DEBT. When plaintiff is not forced to sue for penalty. Value of sura in foreign currency. Where the debt and the penalty were the same sum, and the bond was stated to be for the payment of the debt with lawful interest, Littledale, J., ruled that interest might be given beyond the penalty, as damages for the detention, on the ground that it was expressly provided that the debt should bear interest (/). Here the express agreement negatived the presumption that the parties intended to fix the penalty as the amount of ultimate damage to be recovered. But where the penalty is contained in any other instrument than a bond, it is optional for the plaintiff, either to sue in debt for the penalty, or to proceed upon the contract, and re- cover more or less than the penalty, Mies qKottes {g) ; and accordingly greater damages than the amount of the penalty have been recovered in actions on charter-party {h). Of course where the sum named is not a penalty but liqui- dated damages, the statute does not apply. In such a case the amount is not discretionary. It is of the substance of the agreement ; a jury cannot assess damages where the parties themselves have fixed them {i ). Where an action is brought in England, to recover the value of a given sum in a foreign currency, upon a judgment obtained abroad, the value is that sum in sterling money which the currency would have produced, according to the rate of ex- change between the foreign country and England at the date of the former judgment {k). Ves. 415; M'Clure v. Dunkin, 1 East, 436—8;- ffellcn v. Ardley, 3 C. & P. 12. (/) Francis v. Wilson, Ry. & M. 105. (g) Per Lord Mansfield, Lowe \. Peers, 4 Burr. 2228. {h) Winter v. Trimmer, 1 W. Bl. 395 ; Harrison v. Wright, 13 East, 343 ; Maylam v. Norris, 2 D. & L. 829. (i) Loive V. Peers, 4 Burr. 2229; Barton y. Glover, Holt, N. P. C. 43; ante, p. 97—99 ; 1 W. Saund. 58 c ; [1 "Wms. Notes to Saund. 74.] (fc) Scott V. Bevan, 2 B. & Ad. 78. it is calculated. CHAPTER VIIL BILLS OP EXCHANGE AND PROMISSORY NOTES. Interest is, by usao-e, always allowed upon bills of exchange Interest on bills 1 of excIiciiiSTC and promissory notes {a). But where it is not expressly re- served, it is not part of the debt, but merely damages for its detention, and the jury are not bound to give it unless they think proper. But negligence or default on the part of the holder, seem to be the only grounds which will justify the jury in withholding it (&). Interest ought not to be allowed on a bill or note for any time that it has been in the hands of an alien enemy (c). The mode in which the interest is to be calculated varies according as it is expressly reserved, or given as damages. Where interest is expressly reserved, it is calculated from the From what timo date of the instrument {d), whether the promise is general or to pay interest on demand (e). And even where no action could originally have been maintained upon the note, as having been given to a married woman by her husband and two others as sureties for him, it was held that she might recover within six years after the death of her husband, and obtain interest from the date (/). And similarly, where the promise was by the maker of the note for himself and executors, one year after his own death to pay 300?. with legal interest. In this case no previous deahngs between the parties were shown ; but, in (a) Ante, p. 105. (&) Du Belloix v. Lord Waterparh, 1 D. & R. 16 ; Cameron v. Smith, 2 B & A. 308 ; Laing v. Stone, 2 M. & R. 561 ; [Keene v. Keene, 3 C. B. N. S. 144; 27 L. J. C P. 89.] (c) Du Belloix v. Waterparh, libi sup. {d) Kennerly v. Nash, 1 Stark. 453. (e) Hopper v. Richmond, 1 Stark. 508. (/) Richards v. Richards, 2 B. & Ad. 447. 172 ACTIONS ON BILLS AND NOTES. Liability of drawer or en- dorser to pay interest. the absence of proof, it was presumed that the note was given for value. Had the evidence proved the contrary, so as to render the note a voluntary gift, in the nature of a legacy, it appears the interest would have been held to run from the maker's death {g). Where interest is not specially reserved, it runs from the maturity of the bill or note {h), and in case of an instrument payable on demand, fi'om the time of demand. The commence- ment of the action is a sufficient demand for this purpose (0- But it is different where there is neither a person competent to sue for the money, nor authorised to receive it. Therefore where a bill, upon which interest was not expressly reserved, became due after the death of an intestate, and before adminis- tration, it was held that interest ran, not fi'om the maturity of the bill, but from demand by the administrator (Jc). It has been held that the drawer or endorser of a bill, not bearing interest on the face of it, is only liable for interest from the time he receives notice of dishonour (/). But this decision seems contrary to principle, as the contract by drawer and endorsers is, that the acceptor shall pay at maturity, or that they will. Any damage suifered by his default ought to be borne by them. Accordingly, it is held that a person who guarantees a bill, must pay interest upon it from the time it is due (m). There is one case in which the plaintiff, in an action against the endorser, was given interest from the time of dis- honour by non-acceptance {/?-). It does not appear, however, whether any interval had elapsed between the dishonour and notice to the defendant. It may be observed that the further principle laid down in Walker v. Barnes, viz., that the drawer was entitled to a reasonable time to pay after notice of dis- honour, has been expressly overruled by a much later case (o). This is so far important to the present point, as showing that (rj) Roffey v. Greenwell, 10 A. & E. 222. {h) Gantt V. Mackenzie, 3 Oamp. 51. (i) Piercer. Fothergill, 2 Bingh. N. C. 167. [A demand may sometimes Ije dispensed with where it would be a useless formality : Be East of Eny ^ ' 93. default is final, 15 & 16 Vict. c. 76, s (x) Gibbs V. Fremont, 9 Exch. 25 (y) Upton V. Ferrers, 5 Ves. 803 (z) Story, Confl. Laws, s. 315. 174 ACTIONS ON BILLS AND NOTES. In actions against acceptor, Drawer, Or endorser. express contract, may be of a very different amount. Where a bill was drawn, endorsed, and accepted in France, but pay- able in England, it was held in an action against the acceptor, that he was only liable for the English rate of interest {a). But if the action had been against the drawer, upon default of the acceptor, his liability to interest would have been regulated by the rate of interest in France. " The drawer, by his con- tract, undertakes that the drawee shall accept, and shall after- wards pay the bill according to its tenor. If this contract of the drawer be broken by the drawee, either by non-acceptance or non-payment, the drawer is liable for the payment of the bill, not where the bill was to be paid by the drawee, but where he, the drawer, made his contract, with such interest, damages, and costs as the law of the country where he contracted may allow" (b). AYhen, however, a bill has been drawn at A., and endorsed at B., and the action is against the endorser, it is a question whether this endorsement is a new drawing of a bill at B., or only a new drawing of the same bill, that is, a bill expressly made at A. In the former case it would carry interest at the rate at B. ; in the latter, at A. (f). There is a difference upon this point. Pardessus adopts the latter opinion {d). He says, " L'obhgation de dommages-interets fait partie de la conven- tion intervenue entre le tireur et le preneur, et chaque endosseur s'est porte caution d'executer I'engagement du premier. Chacun d'eux pent done, dans I'espece presentee, etre contraint de payer tous les dommages-interets auxquels le defaut d'acquittement de la dette pent donner lieu." The weight of authority in England, however, is certainly in favour of the other view. Lord Langdale, M.R., in the case previously cited (e), says, " At the time when there is a breach of the contract of the acceptor by non-payment in the country where payment is contracted to be made, there may be a contemporaneous breach of contract by the drawer or endorser in the country where the contract was entered into — where the bill was drawn (a) Cooper v. Waldegravc, 2 Beav. 2S2. (6) Per Hon. Peniberton Leigh, Allen v. Kemble, 6 Moo. P. C. 314, 321 ; Cou[/an V. Bankes, CLitty, Bills, 9th ed., 683 ; Gibbs v. Fremont, 9 Exch. 25. (c) Per Alderson, B., 9 Exch. 31. (d) Cours de Droit Com. Art. 1500. (e) Cooper V. Waldegravc, 2 Beav. 282, 285. ACTIONS ON BILLS AND NOTES. 175 and the endorsement made, — and the consequences of that breach of contract might be governed by the law of the country where it takes place." Here his Honour places drawer and endorser as each liable on the same principle, viz., according to the law of the place where their contract was made. These words are relied on by Mr. T. Pemberton Leigh in Allen v. KemhU (/). And no difference is taken between the cases. As the latter decision settled the liability of the drawer, accord- ing to the opinion first quoted, it maybe fairly argued that the liability of the endorser would have been similarly settled, if tlie question had arisen. The high authority of Mr. J. Story is also marshalled on the same side {g). AVhere interest at a particular rate is expressly reserved Where interest upon the face of the instrument, it becomes of course part of j^^^^g^.^etr ^ the debt, and the drawer and every endorser is liable to pay this exact amount, wherever his own contract was made. It is not an additional damage accruing from his own breach of contract, but an integral part of the sum which he has con- tracted to ensure. Interest may, however, be expressly re- served, without any mention of the rate. It such cases, the rule is laid down by Mr. Chancellor Kent {h), and by Mr. J. Story («) as follows. "The law of the place where the contract is made is to determine the rate of interest, when the contract specifically gives interest ; and this will be the case, though the loan be secured by a mortgage on lands in another state, unless there be circumstances to show that the parties had in view the law of the latter place in respect to interest. Wlien that is the case, the rate of interest of the place of payment is to govern." The circumstances which utterly vitiate a bill, such as fraud, immorality, and illegality, of course do not come within our object {1c). But as the bill may be a perfectly fair and legal transaction, and yet the holder have no right to recover (/) 6 Moo. P. C. 322. (g) Story, Confl. L. s. 315. [See further, Hirschfeld v. Smith, L. R. 1 C. P. 340 ; 35 L. J. C. P. 177 ; Lehd v. Tucktr, 8 B. & S. 830 ; L. K. 3 Q. B. 77 ; 37 L. J. Q. B. 46.] {h) 2 Kent Com. 460, 461. (t) Couri. Laws, s. 305. {k) See Byles, Bilk, 5th ed., 95—105 ; [10th ed. 131—145.] 176 ACTIONS ON BILLS AND NOTES. # at all, or only a part of the sum named in it, the question of consideration becomes important Effect of 'nant As between immediate parties to the instrument, such as of consideration. ^^,^^^,^^ ^^^ acceptor, endorser and his endoi-see, the rule is very simple. An original absence of consideration (l), or an entire failure of consideration (m), will be an entire bar to the action. And a partial absence, or failure, of consideration will be a bar pro tanto («). " But between remote parties, for example, between payee and acceptor, between endorsee and acceptor, between en- dorsee and remote endorser, two distinct considerations at least must come in question : first, that which the defendant received for his liability; and secondly, that which the plain- tiff gave for his title. An action between remote parties will not fail, unless there be an absence or failure of both these considerations. And if any intermediate holder between the defendant and plaintiff gave value for the bill, that intervening consideration will sustain the plaintiff's title " (o). Xor is it any defence in an action by endorsee for value against the acceptor, or any other person who has received no considera- tion, that the plaintiff took with notice of that fact (p) ; unless the endorsement to the plaintiff amounted to a fraud upon the defendant, of which the plaintiff at the time was aware (q). And the same rule prevails, though it was indorsed to him after due (r). But where the bill is an accommodation bill, and known to be so by the endorsee, he can only recover on it the amount he has actually paid on it (s) ; though if he were ignorant of that fact, he might recover the whole amount, although he had not paid so much (/). (l) HolUday v. Atkinson, 5 B. & C. 501 ; Southall v. Rinn, 11 C B 481 • Crofts V. Beale, 11 C. B. 172. (»i) Wdls V. Eoplins, 5 M. & W. 7 ; Solly v. Einde, 2 C. & M. 516. («) Darnell v. Williams, 2 Stark. 166 ; Barler v. Backhouse, Peake, 86 • Simpson v. Clarke, 2 C. M. ^ R. 342. (o) Byles, Bills, 5th ed., 92; Rohinson v. Reynolds, 2 Q. B. 196; Collins V. Martiri, 1 B. & P. 651 ; Bunttr v. Wilson, 4 Exch. 489. (p) Fentum v. Porcrk, 5 Taunt. 192 ; Manley v. Boy cot, 2 E. & B. 46 ((/) Evans v. Kynnr, 1 B. & Ad. 528. (r) Sturtevant v. Ford, 4 M. & G. 101 ; Stein v. Yglesias, 1 C. M. & E. 565 ; Lazarus v. Coicie, 3 Q. B. 459. (s) Jones V. Hibhert, 2 Stark. 304. it) Wiffen V. Roberts, 1 Esp. 261. ACTIONS ON BILLS AND NOTES. 177 "With regard to failure of consideration, three things are Effect of failure to be observed : 1st, that if the consideration for which the °^ consideration. bill was given is once executed, no subsequent tortious act by which tlje defendant is deprived of the benefit of that consideration, can be a defence to the bill. Therefore where the plaintiflF had agreed to execute a lease of premises to the defendant, and the defendant had accepted a bill for the consideration money, and been let into posses- sion, it was decided to be no answer to an action upon the bill, that the plaintiff had refused to execute the lease (u). And the same decision took place where the bill was given for the price of goods, which the plaintiff, who was the vendor, had forcibly retaken in two months after delivery (x). In each case the only remedy was by cross action against the plaintiff. 2nd. That where the bill is given in pursuance of an agreement to pay money on a particular day, such agreement being absolute and not dependent upon the execution of the consideration ; the non-performance of the latter is no defence to an action on the bill, while the contract remains open and unrescinded. An action was brought upon a note for 200/, There was an agreement of the same date with the note, by which it appeared that in consideration of 200/. then paid or secured to them by the defendant, and in consideration of 1140/. to be paid on the 2nd February, the plaintiffs agreed to convey to the defendant an estate subject to two mortgages. The estate was not conveyed owing to a dispute with the mortgagee, who refused to assign his interest ; Held that the action on the note was maintainable. Lord Tenterden, C. J., put the decision on the ground that by the agreement the purchase-money was to be paid on the 2nd February in any event. Parke, J., inclined to think that the action would not have been maintainable, if the circumstances had been such that the defendant, having paid the 200/. as a deposit, would have been entitled to recover it back. This he could not do as long as the contract remained open. But that was the case here, for the plaintiffs agreed only to convey the estate subject (u) Moggridge v. Jones, 14 East, 486. (x) Stephens v. Wilkinson, 2 B. & Ad. 320 ; and see Gmnt v. Welchman 16 East, 207. 178 ACTIONS ON BILLS AND NOTES, to the two mortgages. They were never bound to convey the legal estate to the plaintiff, but only the equity of redemption ; and that they never had refused to convey (tj). 3. A bill of exchange cannot be accepted on a quantum meruit (2) ; and where a bill or note is given for the price of goods, evidence of inferior quality is never admissible in re- duction of the claim (a). But it is otherwise where the inferiority of the article arises from fraud on the part of the seller ; this makes the bill bad ah initio (b). It would appear then, that though a partial absence of consideration may be set up (c), a partial failure of consideration never can, but must always be matter of cross action. Re-exchange. For an explanation of re-exchange on dishonoured bills, see Byles, Bills (d). The drawer of the bill is liable to re- exchange, no matter how many the hands through which the bill has been returned, and on which the exchange charges have been accumulating, because, by making himself liable for the acceptor, he makes himself liable for all the conse- quences of the acceptor's default (e). And the same rule holds as to an endorser (/). But the acceptor is not liable on this account, as his contract is only to pay the sum speci- fied in the bill, and legal interest, according to the rate of the country where it is due (g). "Where, however, the maker of a note made it " payable in Paris, or at the choice of the bearer, in Dover or London, according to the course of ex- change upon Paris," and shortly after all direct exchange ceased between London and Paris, though a circuitous course of exchange was maintained through Hamburg ; Held that the (2/) Spiller V. Westlalce, 2 B. & Ad. 155. (2) Lord Ellenborough, 2 Camp. 347. (a) Ihid. ; Morgan v. Richardson, 1 Camp. 40 n. ; Fleming v. Simpson, Hid. ; TricTcey v. Lame, 6 M. & W. 278 ; [Cripps v. Smith, 3 Ir. L. R. 277 ] ; the niling of Tindal, C. J., in Be Scwhanberg v. Buchanan, 5 C. «& P. 345, upon this point seems incorrect. (6) Lnvis V. Cosgrave, 2 Taunt. 2 ; Solomon v. Turner, 1 Stark. 51. (c) Wiffen V. Roberts, 1 Esp. 261 ; Jones v. Hihhert, 2 Stark. 304. {d) 5th ed., 312. [10th ed., 412. And as to the inadmissibility of evi- dence of an alleged custom among London merchants, gi\ang to the holder an election between the re-exchange and the amount given for the bill, Suse v. Pompe, 8 C. B. N. S. 538 ; 30 L. J. C. P. 75.] (e) Mcllish v. Simeon, 2 H. BI. 378. , (/) Auriol V. Thomas, 2 T. R. 52. (g) Napier v, Shneider, 12 East, 420 ; Woolsey v. Crawford, 2 Camp, 445. ACTIONS ON BILLS AND NOTES. 179 plaintiff was entitled to recover upon the note, according to the system of circuitons exchange existing at the time the note was presented for payment {h). In the case of a foreign bill of exchange, a protest for non- Protest in case acceptance is necessary by the custom of merchants, to charge ^ "^'^^^ the drawer {i) ; but it may be dispensed with under those circumstances which render notice of dishonour unneces- sary {k). Protesting inland bills is unknown to the Common And inland bills- Law (/) ; but St. 9 & 10 W. III. c. 17, authorises the pro- testiug for non-payment of all inland bills for the amount of 5Z. or upwards, drawn payable at any time after date ; and 3 & 4 Ann. c. 9, s. 4, authorises a protest of the same bills for non-acceptance, for which protest there shall be paid 2s. and no more. And 2 & 3 W. IV. c. 98, allows the protesting for non-payment of all bills of exchange, which are made payable at any place, other than the place named as the resi- dence of the drawee. No bills can be protested except such as come within the words of the statutes, and a bill payable so many days after sight is not within stat. W. III., and no expenses of protesting can be recovered upon it (;»). It has been thought that the stat. of 3 & 4 Ann. c. 9, which places pro- missory notes on the same footing for all practical purposes as bills, authorises protest (w). It certainly does not do so in terms, and if they were included, it is strange no mention should be made of them in 2 & 3 W. IV., c. 98. Since it has been decided that interest may be recovered on an inland bill without protest (o), the practice has become quite useless. Expenses of noting and postage, incurred on the return of Noting and an inland bill, must be specially laid {p) ; and it is doubtful P°^^ge. Qi) Pollard v. Herries, 3 B. & P. 335. (i) Gale Y. Walsh, 5 T. R. 239 ; Orr v. Maginnis, 7 East, 359. {k) Rogers v. Stephens, 2 T. R. 713 ; as to these cii'cumstances see Bicker- dike V. BoUman, 2 Srn. L. C. 22. [6th ed., 45.] (I) Byles, Bills, 5th ed., 193 [10th ed., 259]; Leftleijx. Mills, 4 T. R. 173. (m) Leftley v. Mills, 4- T. R. 170. (w) Byles, Bills, 193. [10th ed., 259.] (a) Windle v. Andretos, 2 B. & A. 696. {2)} Hohhs V. Christmas, Byles, Bills, 192 [10th ed. 258] ; Kendrick v. Lomax, 2 C. & J. 405. [Under the Summary Procedure on Bills of Ex- change Act, 1855, 18 & 19 Vict. c. 67, s. 5, the bolder of a dishonoured bill or note has the same remedies for expenses of noting as for the amount of the bill or note.] N 2 180 ACTIONS ON BILLS AND NOTES. Cost of former action. Liability of transferor who does not endorse. whether a charge for noting is in any case recoverable on an inland bill that has not been protested {q). A party to a bill, who has been sued upon it, cannot recover the costs of the suit, in an action against the party who is liable to him (r), A party to a bill, who transfers it without endorsement, does not warrant the solvency of the parties to it (s), and no action can be maintained against him, if it is dishonoured. He does, however, warrant it to be such a bill as it purports to be. Therefore if it is forged (/); or if, professing to be a foreign, it is really an inland bill, and therefore void for want of a stamp, the transferor must refund the amount received, though he was ignorant of the defect, and though the bill would have been paid, notwithstanding the defect, only for the bankruptcy of the acceptor (w), or the laches of the holder (x). (q) Kendricl- v. Lomax, ibid., ubi sup. (r) See ante, pp. 46, 47. (s) Fenn v. Harrison, 3 T. R. 757. {t) Jones V. Ryde, 5 Taunt. 488. (u) Gompertz v. Bartlett, 2 E. & B. 849. {x) Wilson V. Vysar, 4 Taunt. 288. CHAPTER IX. 1. Actions for Rent. 2. A dions on Covenant to Ee2)cdr. 3. Actions on Covenant to Build or Mine. 4. Actions on Covenant to pay Rc- neioal Fine. 5. Actions on Covenant to Itisure. 6. Actions on Covenant to pay Rates. 7. Actions on Covenant to deliver lip possession. 8. Actions on Covenant not to assign. In a previous chapter I examined contracts relating to the purchase or sale of land, and the damages which might arise from their breach. In the present chapter I propose to collect together those contracts which relate to the terms on which it is to be held. The most universal and important of these is the contract for payment of rent. Others, such as covenants to repair, present important matter for consideration also. Covenants for title, quiet enjoyment, and against incumbrances, have been discussed before {a), as referring rather to the nature of the thing parted with, than the manner in which it was to be occupied. Rent is generally a fixed sum, reserved by a written instru- Actions for rent, ment. In this case difficulty can seldom arise, as the jury have merely to give a verdict for the amount claimed for arrears, and interest upon it from the time due (b). Where there was a lease of coal mines to the defendant, yielding, and paying yearly for every ton of coal that should be worked, raised, or got in each year, not exceeding 13,000 tons in any year, 8d. per ton, or yielding and paying that amount of money, viz. 433^. 65. Hd. each year as fixed rent, whether the coal should be worked or not, and also dd. per ton for each ton over and above that quantity ; it was held that the whole rent was payable, though the mine was so exhausted that the lessee (a) Ante, pp. 142—151. (b) .3 & 4 W. IV. c. 42, s. 2S. 182 ACTIONS FOR USE AND OCCUPATION. Use and occux^it- tion. Where there is au agreement. could not raise 13,000 tons of coal in a year (c). The only two cases which ever admit of conflicting evidence as to the amount to be received are, where the rent is claimed in an action for use and occupation, and where a right to an apportionment is set up. 1. Debt for use and occupation lay even at common law, although there had been a demise at a fixed rent, provided it could be treated as a mere agreement, and not a lease (d). But by 11 Geo. II. c. 19, s. 14, it is lawful for a landlord, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, &c. held or occupied by the defendant, in an action on the case for the use and occupation of what is so held or enjoyed ; and if in evidence any parol demise, or any agreement (not being by deed) whereon a certain rent was re- served, shall appear, the plaintiff in such action shall not there- fore be non-suited, but may make use thereof as evidence of the quantum of the damages to be recovered. Where there has been an agreement settling the amount of rent, of course the case is clear, and such agreement may be proved for this purpose, though void as a lease by the Statute of Frauds (e). Such an agreement, however, is only evidence of the amount of rent to be paid, where the lessee has enjoyed under it. And where the lessee took under an agreement which he never signed, and the lessor failed to fulfil the agree- ment, in the principal point which had induced the lessee to propose becoming a party to it, the Court held that he could scarcely be said to have so enjoyed. Accordingly, the jury Avere at liberty to find any such value, as they considered that which he had enjoyed to be worth (/). Even payment of rent (c) Bute V. Thovipson, 13 M. & W. 487 ; R. v. Bedworth, 8 East, 387 ; [Jervis v. Tomkinson, 1 H. & N. 195 ; 26 L. J. Ex. 41. In an action re- cently brought for breach of a covenant to dig an annual amount of not less than 1000 tons of potter's clay, an equitable plea that there was no clay, and therefore performance was impossible, was held good, the covenant not being considered to amount to a stipulation for a minimum rent in any event ; Lord Clifford v. Watts, L. R. 5 C. P. 577 ; 40 L. J. C. P. 36. Equity will not relieve a tenant from his liability to pay rent after premises have been burnt down, even though the landlord have received funds from an insurance oflace, and refused to rebuild j Lofft v. Denis, 1 E. & E. 474 ; 28 L. J. Q. B. 168.] (d) Gibson v. Kirh, 1 Q. B. 850. (c) Be Medina v. Poison, Holt, 47. (/) TomUason v. Day, 2 B. & B. 680 ; Swatman v. Ainllcr, 8 Exch. 72. ACTIONS FOR USE AND OCCUPATION. 183 at a particular rate is only evidence of an agreement, and will not be conclusive, where any facts show that such rate was not intended to be permanent. A tenant was let into possession of land during the currency of a term, the rent then being 47?., with an agreement that at the end of the term he was to pay 801. He paid the 47?., but disputes arising on the new agreement, it was abandoned, and he continued to occupy. It was held that the jury were to consider what was a fair rent for the continued holding, and that no necessary inference could be drawn from the former holding at 47/. (g). The question as to the value of the premises is of course one Value of pre- entirely . for the jury. Some light may be thrown upon the "J^'/^g^J^^y^ principles which should guide them in cases of difficulty, by extrinsic circum- reference to cases decided under the acts for assessing to the stances. poor rates. It has been held for this pm-pose, that lands and houses are rateable, not only with reference to what may be re- garded as their present intrinsic value, but to any circumstance which for the time increases the beneficial interest of the party who enjoys them. Thus, where a small plot of ground was rendered valuable by a mineral spring, and the buildings upon it derived a profitable character from that circumstance, the lands and buildings were held to be rateable with the spring, at the profits which they produced in association (h). So where any right is attached to the possession of a tenement, as a soke mill, which is entitled to the sole multure of all the corn and grain in the neighbourhood, or a canteen in a barracks, which naturally attracts all the custom of the soldiers and their fol- lowers (i). And so where machinery is demised along with the tenement, whether that machinery be real or personal pro- perty {k). Of course there is this difference between the rules to be observed in assessing for poor rate, and assessing for rent ; that in the former case, the entire value of the tenements and their adjuncts is to be taken into consideration, whether such additional value has been conferred upon them by the act of the tenant himself or not ; but for the purpose of ascertaining (g) Thetford {Mayor of) v. Tyler, 8 Q. B. 95. (h) R. V. Miller, Cowp. 619. (i) R. V. Bradford, 4 M. & S. 317. {k) R. V. St. Nicholas, Gloucester, Caldec. 262 ; R. v. Hoyg, 1 T. R. 721 ; R V. Guest, 7 A. & E. 951; Rcr/. v. Haslam, 17 Q. B. 220 ; {Reg. v. Lee, L. R. 1 Q. B. 241.] 184 ACTIONS FOR USE AND OCCUPATION. Beneficial con- tract with land- lord not part of value of liremises. Annual value, how estimated. Period for which ]>l.iintiff can recover. Rent in general cannot be appor- tioned. the rent due to the landlord, only such value as has been re- ceived at the time of the demise can be taken into account. Otherwise the tenant would be paying a rent upon the outlay of his own capital. But although the value of lands or tene- ments consists not only in the laud itself, but also in those things which have been attached, so as to become part of it, the case is different where the increased value arises from a contract by the landlord, to do something which will be bene- ficial to the occupier. For instance, to supply a public-house with ale at fixed prices, or to provide a tenant with horses to be used on or off the tenemenl: as a moving power, or with steam for the like purpose. The compensation for the power can in neither case form a part of the value of the subject of the occupation (/). This is clearly a matter quite independent of the demise, and in respect of which either party may main- tain an action on the contract. The annual value is properly estimated at the rent which a tenant would give, he paying the poor rates and the expenses of repairs, and the other annual expenses for making the sub- ject of occupation productive ; if the subject of occupation be of a perishable nature, or require an annual expense to secure its existence, an allowance ought to be made on that account. It is on this principle that buildings, machinery, canals, gas- works, &c. are rated at a less proportion than arable or other land (m). Where the tenant has not come into possession under the plaintiff, the latter can only recover for the time during which he himself has had a legal title, although he may have had the equitable estate, as assignee of the equity of redemption long before (n), 2. The general principle of law is, that there can be no apportionment of rent, except by the assent of the parties, either in respect of a portion of the time, or a portion of the {I) Per Parke, B., Robinsonv. Learoyd, 7 M. & W. 48 ; [Sunderland Parish V. Sunderland Union, 34 L. J. M. C. 121.] (m) It. V. Loivcr Mitton, 9 B. & C. 810 ; Eeg. v. Cambridge Gas Light Co., 8 A. & E. 73 ; 7?. v. Adames, 4 B. & Ad. 61. [An allowance should le made for ground-rent if paid by the occupier ; Barber v. Broivn, 1 C. B. N. S. 121 ; 26 L. J. C. P. 41, and for the annual repairs of perishable farm- buildings and machinery, and in respect of their contingent or future renewal or reconstruction when past repair ; R v. Wells, L. R. 2 Q. B. 542.] (n) Cobb V. Carpenter, 2 Camp. 13, n. ACTIONS FOR RENT, 185 property. Therefore where there has been a surrender or an eviction in the middle of the period for which rent is payable, the landlord cannot recover rateably for the shorter pei'iod during which the tenant was in possession (o). Nor can he recover any part of the rent, where he has himself evicted the tenant from part of the land ; but where there has been a sur- When rent may render of part of the land, or the lessor has entered upon part ^^ common kw for a forfeiture, or by special condition for entry, or the lessee be evicted from part of the land by title paramount, the rent shall be apportioned (p). And so, where the reversion is severed by a grant of part of the premises, the rent-service incident to the reversion shall be apportioned (q). Possession by a tenant, who has been let in by the lessor under a lease of prior date, and still in existence, is an eviction by superior title, such as would create an apportionment of rent in favour of a subsequent lessee. But where such lease lasts for the entire term over which the subsequent lease was to extend, the lease is utterly void as to that part, and the rent is not apportion- able, and no distress can be maintained for it (r). No action will lie for use and occupation of a part, where there has been an eviction of another part by the lessor (s). Various statutory provisions have passed, to remedy the evil Apportionment which arose on the determination of leases, by a death in the ^^ statute, middle of the current half-year. In such cases the rent for the fractional period was wholly lost. The party who made the lease, or his representatives, could not recover, because the rent was never due ; and the person next entitled could not recover, because the tenant had never been in possession of his land. By the joint operation of 11 Geo. II. c. 19, s. 15, and 4 W. IV. c. 22, 8. 1, in all cases in which a lease determines on the death of the lessor (although not strictly tenant for life), or on the death of the life during which the lessor was entitled, the representatives of the lessor in the former case, or the lessor himself in the latter may recover a rateable portion of the rent growing due. (o) Walls V. Atcheson, 3 Bingh. 462 ; Mall v. Burgess, 5 B. & C. 332. ip) Co. Lit. 148, a ; 3 Rep. 22. (q) Co. Lit. 148, a ; 13 Rep. 57, a. (r) Ncale v. Mackenzw, I M. & W. 747. (s) Reeve v. Bird, 1 C. M. & R. 86 ; overruling Stol:cs v. Cooper, 3 Camp. 514, n., contra. As to pleading eviction, see 1 Wms. Saund. 204, n. 2. [1 Wms. Notes to Saund. 209, n. 2.] 186 ACTIONS FOR KENT. The next section of the last-named Act (/), provided that in case of any rent-service reserved on a lease, made subsequent to 16 June, 1834, by a tenant in fee or for life, or person demising under a power, and also, in case of all other rents and fixed periodical payments of any description, payable under any instrument executed, or (in case of a will) coming into opera- tion after the same date, there shall be an apportionment thereof on the death of any person interested in such rents, &c., or on the determination, by any other means whatsoever, of the interest of such person, so that he or his representatives shall be entitled to a proportion according to the period since the last payment. Apportionment [The relief given by these Acts has been extended by the recent Act, 1870. Apportionment Act, 1870, 33 & 34 Vict. c. 35. Section 1 enacts, that all rents, annuities, dividends, and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise) shall, like interest on money lent, be considered as accruing fi'om day to day, and shall be apportionable in respect of time accordingly. And by section 2, the apportioned part of any such rent, annuity, dividend, or other payment, shall be payable or recoverable in the case of a continuing rent, annuity, or other such payment, when the entire portion of which such apportioned part shall form part, shall be- [(t) 4 & 5 W. IV. c. 22, s. 2. This act was held only to apjjly to cases in wliich the interest of the person interested in rents and payments was determined by his death or by the death of another person ; but not to allow an apportionment to be made between the real and personal representatives of a tenant in fee ; Browne v. Amyot, 3 Hare, 173 ; Beer v. Beer, 12 C. B. 60 ; 21 L. J. C. P. 124 ; Ex parte Clulozo, 3 K. & J. 689 ; 26 L. & J. Ch. 513. Seemingly it applied only to the death of the party entitled to the rent in whose favour it was to be apportioned, not to the death of the party bound to pay. The Court of Queen's Bench expressed a strong oxiinion that no apportionment could take place where the tenancy had been put an end to by the act of the landlord ; Oldershaw v. Holt, 12 A. & E. 590. In no case did the statute apply to payments which were not due under some instrument in writing; Re Marhhy, 4 My. & Cr. 484 ; Cattley v. Arnold, 1 Johns. & H. 651; 28 L. J. Ch. 352. It was held to apply to suits arising out of leases made after the passing of the Act, but by virtue of powers contained in settle- ments or wills executed or coming into operation previous to that date. See Lock V. De Bmyk, 4 De G. & Sm. 470 ; 20 L. J. Ch. 384 ; Plummer v. Whitelcy, Johns. 585 ; 29 L. J. Ch. 247 ; though in Fletcher v. Moore, 26 L. J. Ch. 530, an opinion to the contrary was expressed by Kindersley, V. C. See further as to the operation of this Act, St. Aubyn v. St. Aubi/n, 30 L. J. Ch. 917 ; 1 Drew. & Sm. 611 ; Mills v. Trumper, L. R. 1 Ej. 671 ; and as to annuities. Trimmer v. Dauby, 23 L. J. Ch. 979 : Robinson v. Robinson, 2 Jr. C. L. R. 370.] ACTIONS rOR RENT. 187 come clue and payable, and not before, and in the case of a rent, annuity, or other such payment determined by re-entry, death, or otherwise, when the next entire portion of the same would have been payable if the same had not so determined, and not before.] The legislature, with its usual anxiety to support the interests of landlords, has also enacted some provisions with a view to secure the recovery of their premises, when the period of tenancy has expired. By 11 Geo. II. c. 19, s. 18, if any tenant shall give notice of Tenant holding *' ., -iiiii- J.J.- over after notice his intention to quit the premises holden by hnn, at a time to quit given by therein mentioned, and shall not deliver up possession at such himself, time, he shall pay double the rent which he should otherwise have paid, and so during his continuance in possession. Notice by the tenant under this statute may be by word of mouth {u). But it must state such an ascertained time as would bind the landlord, and enable him to get another tenant. Accordingly where the notice was that he would leave when he got another situation, which he did get, this was held insuffi- cient (v). And on the same principle of reciprocity, the notice must be given by a tenant competent to determine his tenancy, and at the proper distance of time necessary to make such a notice valid. Therefore, where a tenant, who could determine his holding by a six months' notice, gave a shorter one, and then held over, the landlord was not allowed to distrain for double rent (x). The 4th Geo. II. c. 28, s. 1, provides, that whenever any Holding over . , . nil 1 after notice by- tenant, or person coming into possession ot land under a landlord. tenant, shall wilfully hold over after the end of the term, and after notice in icriting for dehvering up possession from his landlord or lessor, or the person to whom the remainder or re- version shall belong, he shall pay double the yearly value of the premises. This statute, being a penal one, is to be strictly interpreted. Where the defendant was tenant of a room in a mill, through which the revolving sliaft of a steam-engine passed, it was ruled that in calculating the double value, the (u) Timmins v. Roivlinson, 3 Burr. 1603. [The analogous Irish Act, 15 Geo. II. c. 8, s. 9 (Ir. ), required written notice ; Parrel v. Donnelly, i Ir. L. R. 476.] (v) Farrancc v. Ellciiiffton, 2 Camp. 591. (x) Johnstone v. Hudlcstone, 4 B. & C. 922. 188 ACTIONS FOR RENT. Deduction on ancount of pay- ments made by the tenant. value of the power of the steam-engine, which was supphed by the landlord to turn the machinery by means of this shaft, could not be taken into consideration. The Court said that although the rent paid was an entire sum, part of it was paid, not for the value of the occupation, but for the landlord's per- formance of a contract to do something beneficial to the tenant. If the landlord, by means of the tenant having held over, is prevented from using the steam-power beneficially, and de- prived of profit thereby, he has a remedy on his contract with the tenant to give up at the end of the term, or for a trespass in continuing to occupy, and may recover compensation for his loss by way of special damage {y). This statute, it will be observed, requires the notice to be in writing {0). [The action for double value must be brought by the person standing in the position of landlord or lessor. It cannot, therefore, be brought by a person to whom the landlord has granted a fresh lease to commence from the expiration of the former lease, and who is prevented from coming into pos- session («). The holding over must be contumacious, and not under a bondjide though mistaken claim of right (&).] The landlord's claim to rent is always liable to be reduced by the amount of any payment necessarily made by the tenant, in liquidation of a charge upon the land, or a debt due from the landlord. Of this nature are payments made in respect of ground-rent to the superior landlord (c) ; interest due upon a mortgage prior to the lease (d) ; an annuity charged upon the land (e) ; property-tax (/) ; land-tax and paving-rates (g). And it makes no difference that the landlord was not really liable to the tax in question, if by his own laches in not estab- (y) Rohinson v. Learoyd, 7 M. & W. 48. {z) See as to the requisites of sucli a notice, Page v. More, 15 Q. B. 684. [(a) Blatchford v. Cole, 5 C. B. N. S. 514 ; 28 L. J. C. P. 140. See as to the landlord's right to recover from the old lessee the costs of an action brought against him by the new lessee, ante, p. 55.] [(b) Sicinfen v. Bacon, 6 H. & N. 184, 846 ; 30 L. J. Ex. 33.] (c) Sapsford v. Fletcher, 4 T. R. 511. See Boodle v. Camhell, 8 Sco. N. R. 104 ; 7 M. & G. 386. {d) Johnson v. Jones, 9 A. & E. 809. (e) Taylor v. Zamira, 6 Taunt. 524. (/) Bakery. Davis, 3 Camp. 474. (g) Andrew v. Hancock, 1 B. & B. 37. [See as to deducting land-tax after its redemption, Moody v. Beaii and Chapter of Wells, 1 H. & N. 40 ; 25 L. J. Ex. 273.] ACTIONS ON COVENANT TO RErAIR. 189 lishing his exemption, the tenant has been forced to pay (h). The amount so deducted must, however, be paid strictly in exoneration of the landlord. Therefore where the plaintiff demised land to the defendant upon a building lease, at the rent of GO/., clear of all rates and assessments, the sewers-rate and land-tax excepted, and the defendant, by building, in- creased the rateable value of the land to 300/. per annum, he was only allowed to deduct the sewers-rate and land-tax upon the original rent, and not upon the improved value (/). Deductions of this sort are^ro tanto, a payment of the rent, Should be plead- and not a set-off, and should be pleaded accordmgly (k). By the express terms of the statutes, payments of land-tax, paving- Should be de- ^ , 1 T J 1 ^ .1 J. 1 ducted from rent rates, and property-tax must be deducted irom the rent clue ; ^^^^ j^g and if the tenant pays the rent in full, without making such a deduction, he is left without remedy (/). The same principle appears to be laid down by Park, J. (m), as applicable to other payments, as, for instance, of ground-rent. The reason is, that when the entire rent is paid, where part only is really due, the surplus is a voluntary payment, with full knowledge of the facts, and therefore not recoverable (n). II. Covenants to repair may throw that obligation either upon the tenant or the landlord. The tenant also may either contract to keep in repair during the tenancy, or leave in repair at its determination. 1. When the tenant covenants to keep in repair, an action Actions against may be brought for breach of covenant at any time during the ^^^^ ^^ },ggp j^ continuance of the lease (o). And Lord Holt ruled that in repair, such a case the measure of damages was the amount it would cost to put the premises into repair (p). This view, however, has been departed from in later cases, and it has been ruled that (h) SwatmanY.'Amhhr, 24 L. J. Ex. 185. (i) Smith V. HmiUc, 15 C. B. 321. \k) Sapsford v. Fletcher, uU sup.; Denby v. Moore, 1 B. & A. 123 ; Franklin v. Carter, 1 G. B. 750. (1) Andrew v. Hancock, ubi sup. ; Stubbs v. Parsons, 3 B. & A. 516 Ctimming v. Bedborough, 15 M. & W. 438. (m) Carter v. Carter, 5 Bingh. 409, 410. (n) See 1 Sm. L. C. 1(53, 6th Ed. (o) Luxmore v. Robson, 1 B. & A. 584. [A covenant to put in repair can only be broken once ; and when damages have been o.ice recovered in respect of that breach, no more can be recovered ; Coimrd v. Creaori/, L. R. 2 C. P. 153; 36 L. J. C. P. 1.] (p) Vivian v. Champion, 2 Ld. Raym. 1125. 190 ACTIONS ON COVENANT TO REPAIR. the measure of damage is the extent to which the marketable value of the reversion is injured. Tliis would be very great if the lease were near its expiration; very small if it had a long time to run {q). A recent case {r) seems opposed to this rule. The action was upon a contract to repair. Plea that the pre- mises were in good repair until they were accidentally burnt down, and verdict for the defendant upon this plea. Damages were to be assessed contingently, in case the plea should be held bad, and Rolfe, B., directed nominal damages. He said that otherwise, as the action was brought during the tenancy, the plaintifi" might put the money into his pocket, and then bring another action for non-repair, in which, on the principle contended for by the plaintifi", he would be entitled again to recover substantial damage. The plaintiff", he thought, could at most recover damages on account of the premises continuing out of repair up to the commencement of the action, and he did not see how these damages could be other than nominal. It is clear however, that this decision must have rested upon the circumstances of the particular case. As the source of the injury was found to be accidental, no damages could of course be given for allowing the premises to get out of repair. The only ground of action was for not putting them into repair. This would be measured by the extent to which the reversion was injured by such neglect at the time of action. No actual damage was proved, and as the premises were insured, and the whole thing was mere accident, the jury, no doubt, were of opinion that the reversion was not, in fact, damaged sub- stantially by any wrong committed ty the defendant. Nominal damages in such a case were quite just. To lay it down, how- ever, as a general rule, that damages must necessarily be nominal for leaving a house in ruins during the currency of the term, would clearly be absurd, and could never have been in- tended. The value of the reversion would be essentially injured. Nor would the objection of the learned baron apply to damages given on this account. The plaintiff might, no doubt, put the money into his pocket, and commence a fresh action next day, but he could not recover substantial damages in such an action, (9) Doe. d. Worcester School Trustees v. Rowlands, 9 C. & P. 734 ; Smith V. Peat, 9 Exch. 161 ; 23 L. J. Ex. 84. (r) Harriott v. Cotton, 2 C. & K. 553. ACTIONS ON COVENANT TO REPAIR. unless he could prove some additional injury to his reversion, subsequent to that for which he had been already recompensed. [But though Marriott v. Cotton cannot be treated as an authority (s), neither can it be said that the rule laid down in Doe, V. Roivlands, that the injury to the marketable value of the reversion is the measure of damages, is of universal applica- tion. In a case which was much considered in Ireland, the lease, containing a covenant to keep in repair by the lessee, had, at the time of action brought, more than eight hundred years to run. It was argued that the lessor was only entitled to nominal damages, the measure of damages being not the amount which would restore the premises to their pristine con- dition at the date of the lease, but the amount of injury done to the reversion, and that one shilling laid out at interest would at the end of eight hundred years far exceed the sum which the plaintiflFs could then claim. Maziere Brady, C, after ex- pressing doubts both of Marriott v. Cotton, and Doe v. Roivlands, and remarking on the difficulty of saying what upon the authorities should be the measure of damages, refused to say that nominal damages only could be recovered, and left it generally to the master to ascertain the amount of damage sustained by the plaintiff in consequence of the dilapidations (/). And shortly afterwards in England, where a lessee sued his sub-lessee for breach of a covenant to keep in repair, he was held entitled to recover substantial damages although he had no reversion, the lessor having ejected both lessee and sub- lessee for non-payment of rent. Bramwell, B., said, that the criterion of damage proposed, namely, the diminution in value of the reversion was a very good test, but not the only test of the damages to be recovered; and Watson, B., said "the damages recovered are usually such as are sufficient to put the premises into repair. As a matter of fact, it is never proved in evidence to what extent the reversion is damaged " {u). [(s) In Bell V, Haydcn, 9 Ir. C. L. Eeji. 301, wliere substantial damages were recovered pending the term, O'Brien, J., stated that he had procured from the offices of the Queen's Bench in England, copies of the orders made in Marriott v. Cotton, and that the case went to the court above, and the verdict for nominal damages was set aside, and a verdict entered for substantial damages. ] [(i) Macnamara V. Vincent, 2 Ir. Ch. Rep. 4S1.] [(m) Davies v. Undenuood, 2 H. & N. 570 ; 27 L. J. Ex. 113.] 191 192 ACTIONS ON COVENANT TO REPAIR. Where the land- lord has repaired himself. When damage ■was before exe- cution of lease. In a recent case the action was brought by the assignees of a bankrupt lessee against the representatives of the lessor for breaches of covenants to put premises in repair and keep them in repair. The defendants, inter alia, pleaded to the breach of covenant to keep in repair for a defence on equitable grounds, that the lessee had recovered a sum of 1080Z. in an action for breaches of the covenants to put and keep in repair, and that if he had expended that sum in putting the premises in repair, the want of repair now complained of would not have existed. Upon demurrer it was held that this was a bad plea, and that ■the matters alleged in it did not amount to a bar of the action, but went in mitigation of damages (x).] Where the landlord is forced to repair himself, even in the midst of his tenant's term, in order to save a forfeiture of his own estate to his head landlord, the measure of damages will, of course, be the cost of such repairs, so far as they are fit and necessary. And it is not necessary for the plaintiff to prove that the defendant assented to the repairs being done by him, because, if there is no assent, the plaintiflFs would be trespassers and liable to an action for the entry {y). In such a case it would not operate in mitigation of damages, that the plaintiff had, before the commencement of the action, assigned the premises to a third party, who pulled them down and entirely rebuilt them. The injury was done when his breach of covenant compelled the plaintiff to lay out money {z). The interest in premises passes from the execution of the lease, though the duration of the term may date from some anterior period. Therefore, where the tenant entered upon the premises in June, and the lease was executed in Novem- ber, habendum from June, with covenant to repair : an ac- tion was brought upon the covenant, the breach being- that he pulled down and altered the premises between June and November ; it was held that only nominal damages could be recovered («). [(x) Coward v. Gregory, L. R. 2 C. P. 153 ; 36 L. J. C. P. 1. The diffi- culty of reducing the measure of damages to fixed rules in such cases is dwelt upon in the judgment of Willes, J.] (y) Colley V. Streeton, 2 B. & C. 273. (2) Ibid., ubi sup. (a Shaw v. Kay, 1 Exch. 412. ACTIONS ON COVENANT TO REPAIR. 193 The assignee of a lease is, of course, only liable for breach Damages against of covenants committed dm'ing his own holding. But where assignee of lease, the lease has passed through several hands, and the premises are out of repair when the action is brought, and are proved to have been so when they were held by the defendant, it will be for him to show how much of the injury arose subsequent to his occupation. And in default of evidence by him, the jury may assess the damage at the whole amount to which he Avould have been liable, had all the dilapidations taken place in his own time (&). Of course strict proof must always be given of the amount Proof of dis- of disrepair. Accordingly, where a county court judge told ^^i^^'*'"- the jury that this action was not like one for goods sold and delivered, and that the plaintiff might rest upon general evidence in support of his particulars of demand, without proving every item, especially as the jury had viewed the premises with the particulars of demand in their hands, and would therefore be able to judge if the plaintiff had made out his case, — a new trial was granted (f). 2. Where the action is brought upon the covenant to re- when action is pair at the end of the term, the damages are such a sum as brought at the ^ . . . . end of the term. will put the premises into the state of repair in which the tenant was bound to leave them ; where, beside the covenant to repair, there is also a covenant to insure against fire for a specific sum, the defendant's liability, in case of the premises being burnt down, is not limited to this sum. The condition is only intended as an additional security to the landlord {d). The defendant, however, is not liable to pay for unproved modes of doing the work, by means of which the parts repaired are more durable than they were on their former principle of construction (e). When the covenant is only to repair the demised premises, the defendant is not bound to repair any buildings afterwards erected, even though he was wrong in erecting them, and no damages can be recovered in respect of the disrepair into which they may have fallen (/). (&) Smith V. Peat, 9 Exch. 161 ; 23 L. J. Ex. 84. (c) Smith V. Douglas, 16 C. B. 31. (rf) Bifjbij V. Atkinson, 4 Camp. 276. (c) Soivard v. Ler/gatt, 7 C. & P. 613. (/) Doe d. Worcester School Trustees v. Foiclands, 9 C. & P. 734. [Every such 194 ACTIONS ON COVENANT TO REPAIR. When plaintiff's interest has ceased. Damages must arise from tie defendant's neglect. Meaning of a covenant to repair. It is no answer to a claim for dilapidations, that the plaintiffs interest in the premises has ceased. The plaintiff may be liable over to his superior landlord ; but independently of this, the objection cannot be set up by a party who is himself in fault (g). Of course no claim can be maintained for any damages which do not flow immediately from the defendant'.s neglect. Therefore, where the plaintiff held land under several cove- nants, one of which was a covenant to repair, with a right of entry by the landlord on breach of the covenants, and made a sub-lease to the defendant, rith a covenant to repair, which was broken by the defendant. The head landlord ejected the plaintiff for breach of all the covenants, including that violated by the defendant. It was held that the plaintiff could not recover from the defendant the value of the term so forfeited, since there were other breaches besides those in the defendant's lease, and it did not appear on which of them the ejectment had turned. And Maule, J., and Bosanquet, J., doubted whether, in any case, the sub-tenant could be liable in such an action for all the consequences to his landlord of a breach of covenant contained in a lease to which he was not himself a party (h). In estimating the amount of damages, it is of course, im- portant to know what state of repair the tenant was bound to put the premises into. Where the covenant is, " to put the premises into repair," this clearly means to put them into a better state of repair than the tenant found them in (/). It has also been decided, however, that a covenant to " keep " in repair involves a covenant to put in repair. For they cannot covenant must be construed according to its particular -words ; Cornish v. Cleife, 3 H. & C. 446 ; 34 L. J. Ex. 19 ; and sometimes a distinction may exist between a liability to repair newly-erected houses and a liability to repair newly-erected additions to existing houses ; per Bramwell, B., 76.] (g) Clow V. Brogden, 2 M. & Gr. 39 ; [and see Dav'ies v. Underwood, ante, p. 191. In another case, a lessor recovered substantial damages for dilapidations, although at the expiration of the term the premises were i^ulled down under a verbal arrangement for that purpose made previously with a proposed new lessee. But in this case the Court laid stress on the fact that the agreement with the proposed new lessee was verbal only, and therefore not binding on either party ; Raidings v. Morgan, 18 C. B. N. S. 776 ; 34 L. J. C. P. 185.] (h) Clow V. Brogden, ubisup., 2 Sco. N. R. 303, 314, S. C. (i) Belcher v. M'Intosh, 8 C. & P. 720. ACTIONS ON COVENANT TO REPAIR. 195 be kept in good repair without being put into it {Tc). But the what amount amount of repair, of course, depends on the age and class of °^ ^^p^'^ ^^ the house, and must differ as that may be a palace or a cottage. No one is bound to give his landlord a new house instead of an old one (/). A house in Spitalfields may be repaired with materials inferior to those requisite for repairing a mansion in Grosvenor Square (m). And, accordingly, where a lessee took premises, which at the time were old and out of repair, under a covenant to repair ; and they were destroyed by fire, it appeared that the cost of reinstating them would amount to 1635?., but they would then be more valuable by 600/. than they were at the time of the fire ; it was decided that defendant was only liable to pay 1035/., that being the amount which the plaintiff had really lost (n). This is all quite clear ; but a more difficult question arises as to how far evidence of actual disrepair, as distinguished from mere in- feriority, may be admitted. The rule laid down in Stanley v. Towgood (o), and JIanfz v. Goring (p), and approved of in Payne v. Haine (q), was, that evidence might be given as to the age and class of the premises, with their general condition as to repair; but that the defendant could not prove in detail that such and such a part was out of order. Burdeit v. Withers (r) has been thought to go beyond this. There the defendant's counsel wished to cross-examine as to the state of the premises at tlie time of his coming into jDossession. The evidence was refused, and a new trial was granted in conse- quence. Lord Denman said, " It is very material with a view both to the event of the suit, and the amount of damages, to show what the previous state of the premises was." And in Pay7ie v. Haine, Alderson, B., says, " The marginal note (s) of Burdett v. Withers may be incorrect ; but the judgment is (h) Payne v. Haine, 16 M. & W. 541 : [Easton v. Pratt, 2 H. & C 676 • SSL. J. Ex. 31, 233, in Ex. CL] (1) Per- Alderson, B., Bdcher v. M'lntosh, 8 C. & P. 723. {m) Per Parke, B., Payne y. Haine, 16M. & W. 545. (n) Yates v. Dnnstcr, 11 Ex. 15 ; 24 L. J. Ex. 226. (o) 3 B. N. C. 4. {p) 4 B. N. C. 451. (2) 16 M. & W. 545. (r) 7 A. & E. 136. («) " The defendant is entitled to prove at the trial what the state of the pre- mises was at the time of the demise." o 2 19G ACTIONS ON COVENANT TO REPAIR. quite right, and shows that a lessee who has contracted to keep demised premises in good repair, is entitled to prove what their general state of repair was at the time of the demise, so as to measure the amount of damages for want of repairs by refer- ence to that state." This reconciles that case with the others mentioned before. The question, therefore, for the future will probably be, not so much as to the admissibility of such evi- dence, as the purpose to which it may be applied. Since Paijm V. Haine, a tenant cannot justify keeping premises in bad re- pair, because they happened to be in that state when he took them. But evidence of this nature, like evidence of age, will be admissible to show how far they were capable of being re- paired at all, and what amount of repair could have been con- templated by the covenant (0- The doctrine of Payne v. Haine will be peculiarly difficult of application in the case of assignees of a term, where the original lease contained covenants to repair. Each assignee is only liable for breach of covenant committed during his own holding. But if he is bound, not only to keep the premises in as good repair as he got them, but to put them into better, where there is actual disrepair, he will in effect be liable for all the breaches of his predecessors. In the recent case of Smith v. Peat (u), it is said he might be called to prove the state of the premises at the time of the assignment to him. But it is clear that that dictum must be taken with some limitation. Expenses of The expenses of survey are usually borne by the landlord, sur%-ey. unless there be some special agreement to the contrary. It is not, therefore, common in an action for breach of covenant, by the dilapidation of premises, to allow to the landlord the ex- penses he has been put to in ascertaining what has been the extent of injury sustained. Incidentally, however, the jury consider this matter, in estimating the amount of damages they give by their verdict (x). {t) See Harris v. Jones, 1 M. & Rob. 173, and GuUeridge v. Munyard, ih., 334, 336, where Tindal, C. J., says, " Where a very old building is de- mised, and the lessee enters into a covenant to repair, it is not meant that the old building is to be restored in a renewed form at the end of the term, or of greater value than it was at the commencement of the term. What the natural operation of time flowing on effects, and all that the elements bring about in diminishing the value constitute a loss, which, so far as results from time and nature, falls on the landlord." (m) 9 Exch. 161 ; 23 L. J. Ex. 84. [x) Woodf. L. & T. 466, 6th ed. [489, 7th ed., by Harrison and Horn.] ACTIONS ON COVENANT TO HEPAIR. 197 A tenant [was] not liable, on his general covenant to re- Repairs of party- pair, for the repairs of a party-wall effected under 14 Geo. III. c. 78 {ij), except so far as they were rendered necessary by his own default, and it was for the landlord to establish the cir- cumstances under which he claimed to charge the tenant with any proportion of the expense so incurred (z). The landlord's claim to recover for breach of a covenant to Where there is a „ „ ■,.,. conditiou prece- repair may depend on the performance of some condition pre- ^^g^^ cedent, such as putting the premises in repair himself {a). Such a condition, when applied to a single house and premises, is indivisible, and where the landlord has only repaired a part he cannot recover for non-repair by the tenant, even of the very part which he has put into repair. But if the covenant applied to two separate dwelling-houses, of which one might be completely enjoj^ed, though the other was not in a condition for proper occupation, the covenants would be divisible, and the performance of one part would, it seems, entitle to an action for the non-performance of the corresponding part of the covenant {h). Where one count of a declaration stated an agreement by plaintiflF and defendant to take certain premises, subject to a covenant to repair, and alleged non-repair ; the second count stated, that in consideration that defendant was tenant to plaintiff of a certain other messuage, he promised to use it in a tenant-like manner, laying as a breach, that he had made holes in the walls, &c. : one demise only as to one house was proved ; it was held that damages could not be recovered on both counts, as they must be taken to refer to different mes- suages {c). 3. Covenants to repair on the part of the lessor present no A'tion against distinction as to the amount of damages that may be recovered. In an action by the tenant on such a covenant, it was held that he could not recover, as special damage, rent, taxes, and other sums laid out upon a house into which tlie plaintiff' was forced [{y) Repealed by 28 & 29 Vict. c. 90, s. 34.] (z) Moore v. ClcirJc, 5 Taunt. 90. [(a) Ncale v. RatcUff, 15 Q. B. 916 ; Coivard v. Gregory, L. R. 2 C. P. 153 ; 36 L. J. C. P. 1. See, as to tlie tenant's right to timber, Bristol (Dean and Chapter) v. Jones, 1 E. & E. 4S4 ; 28 L. J. Q. B. 201.] (6) Neale v. Ratdiff, 15 Q. B. 916. (c) Holfordv. Dunnett, 7 M. & W. 348. 198 ACTIONS ON COVENANT TO BUILD. Actions for breach of build- ing covenants. to move, while his own was uninhabitable. Because, although the defendant covenanted to repair, he did not covenant to find him another house while the repairs were going on, any more than he would have been bound to do so if the premises had been consumed by fire {d). But an allowance might be made for the additional time during which he was obliged to be in another house, on account of defendant's delay in commencing repairs (e). Where the defendant covenants to repair part of the premises only, injury done to the other parts by the non- repair of the former may be recovered, if it resulted from neglect on the plaintiffs part (/). It was ruled in one case, that if the premises become more out of repair after the com- mencement of the action, the jury may consider this in assess- ing damages {g). This, of course, only applies where the de- fendant is still liable (A). III. Building and Mining covenants. For breach of these, the only criterion is the amount of damage the plaintiff has suffered by the diminished value of the premises. Plaintiff agreed to let defendant land for ninety-eight years, from 1835, at a pepper-corn rent for three years, and afterwards at 115/. per annum. Defendant was to build on the ground in three years, and then accept a lease. There was a proviso for re- entry in case of default. Defendant did not build, and in 1839 plaintiff got possession of the land. He then demised to B. for the residue of defendant's term, at a pepper-corn rent for the year ending Midsummer, 1840 ; 70/. for the next year, and 140/. for the rest of the term. He then sued defendant for breach of agreement to build ; and, amongst other things, claimed as damages the difference between the rent which he would have obtained up to 1841, had defendant kept his agree- ment, and that which he was to obtain from the new tenant : — Held that the jury were not bound to give him that difference ; that the real measure was the damage he had on the whole sustained, and that in estimating this they must consider the new agreement he had entered into. Accordingly they found {d) Green v. Bales, 2 Q. B. 225. (e) lUd. (/) Ibid. ((/) Shortridge v. Lamplugh, 2 Ld. Eaym. 803 ; see ante, p. 64. [(h) See furtlier as to damages recoverable against tlie lessor, Coward v. Gregory, L. R. 2 C. P. 153 ; 36 L. J. C. P. L] ACTIONS ON COVENANT TO MINE. 109 that no damage had accrued beyond 2/. which had been paid into Court (/). In a very recent case, the action was on a contract, by which Covenant to the defendants agreed that if the plaintiff would surrender to ™^'^®- his lessor the land then in his possession, they would, on obtaining a lease of it to themselves, sink a shaft to the depth of 130 yards in search of coal, and if they found a vein of marketable coals, would pay the plaintiff 2500/. The defen- dants never sank a shaft. Evidence was given that if a shaft had been sunk to the depth of 130 yards, a vein of marketable coal would have been found : the cost of such a shaft would have been 2600/. The judge told the jury, that the plaintiff had a right to have a pit sunk to the depth agreed on at the defendants' cost, and that they ought either to estimate the damages with reference to the expense of so doing, or might give the amount which would have become payable on the contingency. A verdict was given for 2500/, A rule to enter nominal damages was refused. Pollock, C B., Alderson, B., and Martin, B., gave no opinion as to which alternative in the judge's ruling was most correct. Parke, B., inclined to think that the expense of sinking the pit was a wrong criterion of damage, because the plaintiff could not go upon the land and make it. But at ail events, he said, this was a case for more than nominal damages ; and as the defendants had been instrumental in preventing the discovery of marketable coal, they ought to pay the plaintiff such an amount as he had lost by their neglect to perform the covenant {Ic). If this had been a covenant between the lessor and lessee of the mine. Baron Parke's objection would of course fail, since at the expiration of the lease he could himself sink the pit. As long as there was any chance that a mine might be found, he would obviously be entitled to the cost of the shaft, which the defendant had undertaken to make at his own expense. But suppose all possibility of a mine being found, and therefore of any advan- tage being derivable from the shaft, could be negatived, what would be the damages then ? None could be given in respect of the payment of 2500/., because, by the hypothesis, it could (i) Oldershawv. Holt, 12 Ad. & E. 590. {k) Pill V. Shearman, 10 Excli. 766. 200 ACTIONS ON COVENANT TO PAY RENEWAL FINE. Covenant to pay renewal fine. Covenant to insure where no loss has occurred never become due. Then the damages would be measured by the loss he had sustained by not having a shaft sunk, free of charge, in his own land. It is hard to see that more than nominal damages could be recovered for this ; since here also, by the hypothesis, no damage could accrue ft'om breach of the covenant, as no benefit would flow from its performance. IV. There are various cases in which the occupier of laud covenants to make certain payments, connected with his in- terest in it. 1. Covenants to pay renewal fine. When the plaintiff held an archbishop's lease, renewable from time to time by payment of fines, and demised to the defendant for a term, the latter covenanting, that he would fr-om time to time, and at every time during the said term, pay to plaintiff or the archbishop, such part of the fine or fees which, upon every renewal of the lease by which plaintiff held the premises, should be paid or payable by plaintiff in respect of the premises demised to defendant. Plaintiff renewed for a longer period than the term demised by him to the defendant, and it was iiiled that the latter was only liable for a part of the fines, commensurate with the interest which defendant now acquired in the pre- mises (I). 2. Covenant to Insure. In an action for breach of this covenant, the plaintiff, who had himself paid the insurance premium, was held entitled to recover it back from the de- fendant as damages, no special loss having occurred (?«). In this case the plaintiff was himself a lessee, bound by covenant to insure, and the defendant was his assignee, who had taken subject to the original covenants, so that the payment by the plaintiff was necessary for his own safety. Even in the ordi- nary case of lessor and lessee, the same rule would, it is conceived, hold good. If the plaintiff has paid the insurance premiums, he ought to recover their amount ; because as he is entitled to the protection of an insurance policy, he is also entitled to adopt such means as may keep it on foot. If, however, he has not paid the premiums, then the question is, how much is the reversion the worse by reason of the lapse or non-existence of such a policy ; no loss having as yet (0 Cluirlton V. Driver, 2 B. & B. 345. (m) Hey v. Wyche, 12 L. J. Q. B. 83. ACTIONS ON COVENANT TO INSURE. 201 occurred ? The answer to this would seem to be, that the loss to the reversion is measured by the amount which it would cost the plaintiff to put himself into the same position, as he would now be in, had the defendant kept his contract. If no insurance has been effected, this amount would consist of the cost of entering into one ; that is, all the charges which a party has to incur at starting, before his next premium falls due. If a policy has been effected, then the arrears of pre- miums (if the office will accept them) or the cost of a new policy, whichever is cheaper. It seems plain that this is all to which the plaintiff is entitled; he can claim nothing in respect of the past risk, for this is over ; nor in respect of past payments, for he has made none. The cost of com- mencing an insurance will, at any moment, secure him against risk till default made in paying the premiums ; and when this takes place, he may pay them himself, and recover their amount as damages. These views are to a considerable extent confirmed by the Court of Common Pleas, in a recent case, where the question incidentally arose. It was agreed by the terms of a charter- party, that the charterers should pay one-third of the freight in advance — the same to be returned if the vessel did not reach her destination — the charterers to insure the amount at the owner's expense, and deduct the cost of so doing from the first payment of freight. The charterers paid the one-third freight, deducting insurance premium. The vessel and cargo never arrived. The charterers sued for a return of the freight. The owners pleaded that if the insurance had been properly effected, it would have indemnified them against the loss of the one-third freight stipulated to be returned. That by the negligence of the charterers, the insurance had become worth- less. Consequently, that the defendants had a right of action against the plaintiffs, to exactly the same amount, as that which the plaintiffs had against them. This, if true, would have made the plea good, in avoidance of circuity of action. It was held bad, on the ground that the damages for negli- gence in insuring were not necessarily the same as the freight to be returned. Maule, J., said, " I do not think that the concluding allegation sufficiently identifies the sum men- tioned in the plea with that sought to be recovered by the 202 ACTIONS ON COVENANT TO INSURE. declaration. That which is complained of in the plea would give the defendants a right of action against the plaintiffs, so soon as they were guilty of the negligence charged, and the defendant was thereby damnified. That which happened subsequently does not necessarily determine the amount of damages the defendant would be entitled to. A jury might have given exactly the same amount of damages before as after the loss. The question is, what damage has the party sustained at the time the cause of action vested in him ? If nothmg had happened, and a policy might then have been effected, the jury would consider what was probable : if the loss had then happened, they perhaps might have given the full amount ; but they were not bound to do so. There were a variety of circumstances which they might properly take into their consideration. Therefore, it is not a necessary and conclusive thing that the sum to be insured by the policy, neither more nor less, is the sum which the plaintiffs would have to pay ; but a compensation for the injury resulting from their negligence." " Perhaps, after the loss, they would be bound not to give more than the amonnt of the actual loss, when no greater loss could happen" (n). It will be observed that it was not necessary for the Court to lay down positively what the measure of damages would be, where the action was brought before a loss had arisen. It was sufficient for their purpose to show that they were not necessarily the full amount of the policy (o). This will account for the absence of any direct and positive assertion as to the rule of law in such a case. Where a loss lias There seems, on principle, no reason to doubt that after a occunea. ^q^^ had occurred, the measure of damages would be the exact value of the thing lost, which ought to have been insured. A very recent case expressly decides the point. R., the owner of a saw-mill, received from B. timber to be sawed. An agreement was made as to its being kept insured by E., as to which various evidence was given. According to one account the agreement was, that R. should hold all B.'s timber insured from fire, and should pay its value if burnt. According to another account, the whole substance of what (n) Charles v. Altin, 15 C. B. 46, 65 ; 23 L. J. C. P. 197, 204. [(o) So in CahiU v. Dawson, 3 C. B. N. S. 106 ; 26 L. J. C. P. 253.] ACTIONS ON COVENANT TO INSURE. 203 passed as to insurance was, that the goods should be alwa3's insured from fire. No written memorandum was made — no particular office was mentioned — no time for insurance was mentioned, nor any particular amount. No insurance was effected. The goods were burnt, and R. became bankrupt. B. applied to prove for the value of the timber. His right depended upon the question, whether his claim was for an ascertained amount, or for unliquidated damages. It was decided on appeal to the Lords Justices that his claim was admissible. The Court held that on the whole evidence they were satisfied that there was a contract on the part of the bankrupt to make good the value of the timl^er. L. J. Turner, however, added, " In any event it seems to be clear that there was a contract on the part of the bankrupt to insure the petitioner's timber, and that this insurance was to be made for the purpose of securing to the petitioner the value of his timber, in case it should be destroyed by fire ; and under such circumstances, I apprehend, that the value of the timber would be the measure of damages in an action for breach of the contract." This being so, and the value of the timber being an ascertained thing in the market, the amount of the claim of course became a mere matter of account (;;). [Loans by insurance companies are frequently secured by Loans secnreil by the assignment of a policy effected with the company by the assignment of borrower, who covenants to keep up the policy by paying the premiums. Upon his failing to do so companies have claimed to be entitled to recover in an action for breach of covenant the amoimt of unpaid premiums, but it has been held that this is not the proper measure of damages. If the company has effected a fresh insurance and paid the premiums to other insurers they may be entitled to recover what they have paid, but being themselves the insurers their real damage is the loss of the security. How this is to be estimated has not been suggested, but in the absence of any expense {p) Ex parte Bateman, 20 Jur. 265 ; 25 L. J. Bkcy. 19 ; [approved by Erie, C. J., Betteley v. Stainshy, 12 C. B. N. S. at p. 499; 31 L. J. C. P. at p. 342. In Upper Canada it has been on this principle laid down, that the measure of damages is the value of the premises lost to the plaintiff by the neglect to insure, not exceeding the sum in which the defendant was to have insured by his covenant ; Douglass v. Murphy, 16 Upper Canada Q. B. 113.] 204 ACTIONS ON COVENANTS TO PAY RATES, Covenant to pay rates. Alternative covenants. shown to have been caused by the breach, nominal damages have been held to be alone recoverable (q). Where a deed by which the defendant assigned to the plaintiffs a policy of insurance upon his own life contained a covenant that he would not do anything by which the policy should be forfeited, and a forfeiture was caused by the de- fendant's going beyond the limits of Europe without the licence of the assui-ers, the damages were assessed upon the present value of the policy, to be assessed by an actuary, taking into consideration that the defendant covenanted to pay and should pay premiums on the policy (r).] 3. A covenant to pay rates is broken as soon as the rates are due, though no demand has been made (s). I can find no case in which any rule is laid down about the measure of damages in such an action. There would of course be a broad distinction, according as the rates were primarily pay- able by the person who covenants to pay them or not. For instance, if the landlord covenanted to pay what was usually tenant's taxes, this would be similar to a covenant to pay off incumbrances, and the whole amount of the tax would be recoverable, even though none had been paid by the tenant (/). On the other hand the tenant may covenant to pay his own taxes, for which the landlord is not liable at all, except by means of legal process against his house. This would seem to be analogous to a covenant to repair, and the measure of damage would be the injury to the reversion, by having arrears of taxes due, distresses put in, and the like. Where there are alternative covenants, and plaintiff declares for a breach of both, if money is paid, and accepted in satis- [(q) National Assurance Co. v. Best, 2 H. & N. 605 ; 27 L. J. Ex. 19 ; Browne V. Price, 4 C. B. N. S. 598 ; 27 L. J. C. P. 290. In this last case the deed j)rovided that unpaid premiums paid by the plaintiffs sliould be added to the principal debt and charged upon the land, but contained no covenant by the defendant to repay premiums paid by them. See also Warbui'g v. T'ucker, E. B. & E. 914 ; 28 L. J. Q. B. 56 in Ex. Ch. A mortgagee cannot insure and add the jsremiums to his mortgage debt in the absence of an express contract authorising him to do so ; Brooke v. Stone, 34 L. J. Ch. 251.] [{r) Haxvlcins v. Coulthurst, 5 B. & S. 343 ; 33 L. J. Q. B. 192. An executor who dropped a policy on the life of a debtor to the testator's estate, without consulting those beneficially interested, was held liable for the whole sum which would have been recovered if he had kept up the policy ; Garner v. Moore, 3 Drew. 277 ; 24 L. J. Ch. 687.] (s) Davis V. Burrell, 10 C. B. 821. (t) See Lethhridge v. Mytlon, 2 B. & Ad. 772 ; ante, p. 149. TO GIVE VP POSSESSION, AND NOT TO ASSIGN. 205 faction of one, the plaintiff is only entitled to nominal damages in respect of the other (ii), [4. In an action for breach of covenant to give up possession Covenant to at the end of a term, the plaintiff can recover only the actual ^^^ly^"^ '^'P P°^- ' 1 _ _•' _ session. damage which he has sustained. This was ruled in a case in which the defendant was tenant to the plaintiff, who was the owner of the equity of redemption. The lease contained a covenant to deliver up the premises and all fixtures therein at the expiration of the term. The term expired on the 1st April. The plaintiflF demanded possession on the 10th, but it Avas not given. On the 13th April the mortgagee gave notice to the plaintiff to pay the rent and deliver up the premises to him. The plaintiff sued the defendant for breach of cove- nant in not delivering up the fixtures, and the defendant paid 5/. into Court, which the jury found to be sufficient to cover the actual damage sustained by the plaintiff being deprived of the possession of the fixtures for three days. The plaintiff claimed to have the verdict entered for him for the full value of the fixtures, but a rule to that effect was discharged. Martin, B., said that the absurd result would follow from the plaintiff's reasoning, that where a person hired a chattel and agreed to deliver it up on a certain day, but did not do so, and it afterwards turned out that the chattel was stolen, and the true owner demanded possession, the person wlio lent it might recover the whole value of the stolen chattel. No doubt he might maintain an action, because the person who hired the chattel agreed to deliver it up on a certain day, but he would only be entitled to nominal damages. In an action on a covenant in a lease to deliver up the land, the sum to be recovered would not be the value of the land but the real damage sustained (x). 5. In an action for breach of covenant not to assign, an Covenant not to arbitrator in assessing damages was dii'ected to find such a assign, sum as would, as far as money could, put the plaintiff in the same position as if he had still the defendant's liability for the breaches of the other covenants, instead of the liability of a person of inferior ability, and to take into consideration breaches both past and future (?/).] (u) Foley v. Addenhr'ooke, 13 M. & W. 174. [(.r) Watson v. Lane, 11 Ex. 769; 25 L.J. Ex. 101. See also Henderson V. Squire, L. R. 4 Q. B. 170; .38 L. J. Q. B. 73.] [{y) Williams v. Earle, L. R. 3 Q. B. 739 ; 9 B. &S. 740.] CHAPTER X. CAERIERS. Land carriage. Packed parcels /. Actions by Carriers. 1. For Freight. 2. For Breach of Contract to provide Cargo. II. A ctiois against Carriers. 1, For Breach of Contract to Carry. 2. For Injury or Loss to Goods. The extensive commercial transactions of this country render contracts for the conveyance of goods a matter of great and daily importance, and the doctrine of damages, arising out of such contracts, presents some peculiar considerations. There are some distinctions, principally statutory, between the liability of carriers by land and sea, but the whole subject may without confusion be examined in a single view. Actions may be brought upon a contract of carriage, either by the earner, or by the owner of the goods. The former may sue for the costs of carriage, or for breach of the contract to employ him. The latter may sue for a refusal to convey the goods, or for their loss or injury. I. Actions by carriers. 1. Actions for the price of carriage are generally much less complicated where the carriage is by land than by sea. A fruitful source of discussion, however, has sprung up between the railway companies and other carriers, on the subject of the charges made upon the latter for carrying goods, collected by them from various customers. One point of controversy arose out of the packed parcel question, viz., the right of the railway companies to impose peculiar terms upon the carriage of large packages of goods, in which a number of smaller packages were contained. These cases are so involved in the particular word- ing of the private Act, authorising tolls to be taken, that it ACTIONS BY CARRIERS FOR FREIGHT. 207 would be impossible to attempt a statement of the facts. The general rule, however, is laid down beyond doubt, that where the company carries such parcels for any of the public, they must carry them for all on the same terms, and that the fact of their having issued orders, stating that they would no longer carry them, makes no difference, if, as a matter of fact, they do continue to carry them for some {a). Any overcharge may be recovered as money had and received to the nse of the plaintiff {a). On the other hand, questions of nicety very often arise in Actions for actions for freight due on account of the various modes in '®^^^" which contracts for carriage by sea are formed, and the uncer- tainty that may prevail at the time of the contract as to the species of goods that are to be conveyed. Where the entire ship has been engaged at a specific price. Where entire or where a cargo has been loaded at a settled price per ton, of >='o • course the matter is simple enough. In the former case, the whole sum will be payable, though the merchant only fills part of the ship (b). "Where the covenant was to pay for hides at so much per pound net weight at the scales, and it appeared that the packages were wrapped in hides of an inferior quality, which are generally somewhat damaged, and the evidence varied as to whether freight was paid for them or not, and whether they paid duty : — Held that they must pay both freight and duty (c). "Where an entire ship, of a certain specified burthen, is When payment , . , 1,111. J. J. • r is to be made by hired, and the charterer agrees to pay a certain sum for every ^j^g ^q^_ ton of goods which he shall have on board, but does not agree to supply a full cargo, he is only liable for the actual amount carried {d). (a) Parl-erT. G. W. Ry. Co., 7. M. & Gr. 253 ; 11 C. B. 545 ; Edwards V. G. W. Ry. Co., 11 C. B. 588 ; Crouch v. G. N. Ry. Co., 9 Exch. 556 ; Crouch V. London and N. W. Ry. Co., 14 0. B. 255 ; [Baxcadale v. G. W. Ry. Co., 14 C. B. N. S. 1 ; 32 L. J. C. P. 225 ; and 16 G. B. N. S. 137 ; 33 L. J. C. P. 197, in Ex. Ch. ; Baocendale y. London and 8. W. Ry..Co., L. R. 1 Ex. 137 ; 35 L. J. Ex. 108 ; 4 H. & C. 130 ; Sutton v. G. W. Ry. Co., 8 H. & C. 800 ; 35 L. J. Ex. 18 ; affirmed, L. R. 4 H. L. 226 ; 38 L. J. Ex. 177. Under the Regulation of Railways Act, 1868, 31 & 32 Vict. c. 119, s. 17, railway companies are bound upon application to furnish accounts showing how much of their charge is for conveyance of goods upon the railway, and how much for collection, delivery, and other expenses.] (b) Abbott on Shipping, 410. [367, 11th ed.] (c) Moorsom v. Page, 4 Camp. 103. {d) James {Lady) v. East India Co. , Abbott on Shipping, 412. [368, 1 1th ed. ] 208 ACTIONS BY CARRIERS FOR FREIGHT. And a full cargo is to be sup- plied. "Weight, how calculated. Freight where cargo changes in bulk or weight. On the other hand, wliere he does agree to supply a full cargo, his liability is not limited to the tonnage expressed in the charter-party ; and tlie burthen being described as 261 tons or thereabouts, whereas the vessel would really have held 400 tons, it was held that the merchant must pay for the entire amount she could have stowed. Of course, if there was a fraudulent representation it would be different (e). If part of the cargo has been delivered to, and received by the consignees, freight is payable upon it, even though the rest has not been delivered, and though it has not been landed at the port named in the charter-party, but at some other port to which the con- signee directed the captain to come (/). In the absence of any special contract, it is said that freight payable by weight is to be calculated upon the net weight, as ascertained at the king's landing scales, and not according to that expressed in the bill of lading (//). But where the bill of lading was of 100 lasts of wheat, in 2092 bags, upon which- freight was to be paid at 14/. sterling per last ; the bill of lading bore date Dantzic ; no evidence was given that the corn was measured at Dantzic by either party, but it appeared that the Dantzic last was much larger than the English, and that the English last was the one by which the defendant had pur- chased. The plaintiff therefore sought to be paid fi'eight for 100 lasts, which the cargo was believed to amount to in English measure, and which were expressed in the bill of lading. The defendant, on the other hand, claimed only to pay freight on such a reduced number of lasts as the whole cargo would amount to if measured by the Dantzic scale : — Held that no evidence was admissible to vary the written contract, which stated tlie number of lasts to be 100, and that the plaintiffs mode of calculation was the true one (h). [Goods sometimes change in bulk or weight during a voyage or after delivery> In such cases it has been laid down that, special contract and usage of trade apart, freight is to be cal- (e) Hunter v. Fry, 2 B. & A. 421 ; Thomas v. aarke, 2 Stark. 452 ; [BarJcer v. Winclle, 6 E. & B. 675 ; 25 L. J. Q. B. 349.] (/) Christy V. Roio, 1 Taunt. 300. In that case the non -arrival at the right port, and the non-delivery of the rest of the cargo, arose from restraint of princes, a peril excepted against. (g) Geraldes v. Donison, Holt, N. P. 346. (/i) Moller v. Livinrj, 4 Taunt. 102. ACTIONS BY CARRIERS FOR FREIGHT. 209 culated and paid on tliat amount only which is put on board, carried throughout the whole voyage, and delivered to tlie merchant (/). Thus, where wheat increased in bulk from being wetted during the voyage, freight was recovered on the quantity shipped, and not on that delivered (Ic). And so where cotton shipped in compressed bales expanded on being unloaded (/).] A case which has, on several occasions, caused a good deal of Mode of caicu- debate, is that in which the rate of freight has been fixed with ^^^^^^ Seen a view to certain articles, and either none or only some of these fixed with refe- have been actually carried. Tlie question has then been, What JJ°J^J° ^^l""^^^ freight was payable on the remaining articles ? Tiie rule seems carried, now, however, to be established as follows: — Where a charter- party provides for the carriage of various classes of goods at specified rates, and gives no permission for the substitution of other goods ; or permits, but does not provide a scale of pay- ment for such substituted goods ; in either case, the freight payable in respect of them is calculated upon an average of what would have been earned, by carrying a similar amount of all the enumerated articles in equal quantities (m). But where some of the enumerated articles are limited as to the amount which may be carried, and that amount has been reached, the freight of the non-enumerated articles can only be ■ calculated on an average of the remaining articles (»). And in all cases where a particular class of goods are to be calcu- lated according to a particular scale of bulk, &c., that scale [!{) Gihson V. Sturje, 10 Ex. 622 ; 24 L. J. Ex. 121 ; BucUev. Knoop, L. R. 2 Ex. 333 ; 36 L. J. Ex. 223, in Ex. Ch. In Iwth of these cases the cai-go had increased in Ijulk. Willes, J., in his eh^borate judgment in Dalin V. Oxlaj, 15 C. B. N. S. 646 ; 33 L. J. C. P. 115, after mentioning the rule as applicable to cases where the cargo has accidentally swelled, speaks of it as "perhaps" applying where the cargo has diminished, and draws attention to some arbitrary provisions in foreign codes respecting loss of liquids. In the West India trade, freight of sugar and molasses is said to be regulated by the weight of the casks at the port of delivery, the loss of freight by leakage falling on the owners of the .ship. Abbott on Shijiping, p. 382, 11th ed. This would seem to follow naturally from the rule laid down in Gibson v. Sturge, that to constitute a title to freight, the commodity must be "shipped, cai-ried, and delivered."] [(k) Gibson v. Sturge, supra.] \_U) Buclcle V. Knoop, supra. In that case it was found to be usual to ship cotton at Bombay in compressed bales. In Coultkurst v. Sweet, L. R. 1 C. I'. 649, there were express words making the freight payable per ton, " nett weight delivered. "] («i) Capper v. Forster, 3 B. N. C. 938. {n) C'ockburn v. Alexander, 6 C. B. 791. 210 ACTIONS BY CAIIRIERS FOE FREIGHT. nmsfc be applied in estimatinn: the freight, though, were it not for the agreement, it would furnish an incorrect standard of measurement (o). The facts of the above three classes of cases were these :— 1. A charter-party provided that the merchant should ship a full and complete cargo of lawful merchandise, which was to be delivered up on being j:a id freight as follows: viz., for gum, bees'-wax, ivory, and palm-oil, il per ton: hides, 7Z. per ton: rice. 31. per ton. A fall cargo was not shipped, and it was held on the authority of Thomas v. Clarice (p), that the same rule should be applied to a deficient cargo as to none at all, and that the short-coming should be calculated by an average of what might have been shipped of all the articles speci- fied (q). 2. Covenant to load a fall cargo of wool, tallow, bark, or other legal merchandise, the entire quantity of bark not to exceed 100 tons, and the quantity of tallow and hides not to exceed 80, to be delivered up on being paid freight as follows : pressed wool, l\d. per pound ; unpressed, l^d. per pound ; tallow, 3/. per ton ; bark, 4?. per ton ; and hides, 21. per ton ; the latter not to exceed 20 tons, without the consent of the captain. She brought home less than the stipulated quantity of some of the articles, more of others, and some not named at all : — Held that the owners were entitled to payment as if she had brought home the full amount of the enumerated goods, viz., 100 tons of bark, 60 of tallow, and 20 of hides, and the remainder wool pressed or unpressed (r). 3. In the last case there was a proviso for shipment of a full cargo of produce, freight to be paid at and after the rate of 55. Qd. per barrel of flour, meal, and naval stores, and lis. per quarter of 480 pounds of Indian or other grain. The cargo was not to consist of less than 3000 barrels of flour, meal, or naval stores, and not less flour or meal than naval stores was to be shipped. The full amount of flour, meal, and naval stores was not shipped, other articles were ; among them 2000 bushels of oats. A quarter of the latter weighed less, and (o) Warren v. Peahody, 8 C. B. 800. (p) 2 Stark. 450. {q) Capper v. Forstcr, 3 B. N. C. 938. (.r) Cvckburn v. Alexander, uhi sup. ACTIONS BY CARRIERS FOR NOT SUPPLYING CARGO. 211 occupied more room, than Indian corn. It was held that the owner was entitled to freight, as if the stipulated amount of flour, meal, and naval stores, in their respective portions, had been put on board, and the remainder of the space had been filled with grain, averaging 480 pounds to the quarter, and paying lis. (s). Where there is an agreement for a spei;ihc freight, no evi- Evidence in dence can be given of a deficient performance cF contract not ^^a||^^!^^ °^ amounting to breach of condition precedent, wich a view to reduce the damages; though it would 1= r^';erwise if the action were on a ([uantum meruit. For iuocance, evidence cannot be offered of a deviation which caused delay and ex- pense {t). Nor of injury caused to the contents of some of the packages by the negligence of the master, in not ventilating them sufiiciently («)• And where the fi-eighter engages a ship for a certain time, the owner to keep her in repair, he cannot claim to deduct from the freight any time during which she is under repairs, and, therefore, lying idle {x). So, where there is an agreement to pay pilotage and port charges, for an entire voyage, and only part of the cargo is delivered, if this is re- ceived, the whole of the charges must be paid, and there can be no apportionment {y). [Nor can the value of missing goods be set off against the freight payable in respect of goods de- livered (2).] 2. In actions for supplying no cargo, or an incomplete one, Actions for not the measure of damage is the difference between what the c^Jgof'"" ^ plaintiff would have earned if the contract had been fulfilled, and that which he has earned, notwithstanding the breach («). The amount which he would have earned is open to the same (s) Warren v. Peabuchj, 8 C. B. 800. (t) Bornmann v. Tooke, 1 Camp. 377. (u) Davidson v. Gwynne, 12 East, 381. [See ante, p. 93, n. {i). A set-ofiF for culpable damage in an action for freight is allowed in some of the United States, though not in our country ; DaUn v. Oxley, 15 C. B. N. S. at p. 667 ; 33 L. J. C. P. at p. 120, per Willes, J., citing 1 Parson's Mercj.ntile Law, 172 n. If the damage amounts to absolute destruction, the shipowners are not ready to deliver, and therefore cannot sue for freight ; Duthie v. Hilton, L. R. 4 C. P. 138.] (ic) Havdoch v. Geddcs, 10 East, 555; Ripley v. Scaifc, 5 B. & C. 167. {y) Christy v. Row, 1 Taunt. 300. ((z) Meyer v. Dresser, 16 C. B. N. S. 646 ; 33 u. J. C. P. 289.] (a) Hunter v. Fry, 2 B. & A. 421, 424, et seq. [In calculating net earn- ings, the expenses must be deducted ; Smith v. McGuire, 3 H. & N. 554 ; 27 L. J. Ex. 465.] p 2 212 ACTIONS BY CARRIERS FOR NOT SUPPLYING CARGO. questions, and decided upon the same principles, as the amount of ii-eight payable (b). Upon this point, Maule, J., says, in Cockbvrn v. Alexander (c), " It may he that in cases of this sort, different amounts might, under different states of circum- stances, be the proper measure of damage." " If you could show that there were goods which the charterer might have obtained, then the proper measure of damages would be the non-shipment of that cargo. But if there were none, it may be that in ascertaining the damage an average is to be taken of all kinds of goods. It is in that way I think that Lord Tenterden arrived at the opinion he expressed in Thomas v. Clarke, viz., that where there is no cargo at all to be had, the average is to be taken of all possible kinds of cargo ; that is, that you are to assume, contrary to the fact, that there are goods of each of the kinds enumerated, because the obtaining goods of any one kind, where none are in truth obtained, cannot €i priori be considered as more probable than the obtaining of any of the others." But, whatever may be the default made by the charterer, the captain is still bound to do his best to obtain freight, and where a/lor breach by the defendant he has refused an offer, the measure of damages is what the charterer ought to have paid, minus what the owner might have got. But he is not bound to accept any offer before the final breach by the defendant (d). Where the charter-party allows the freighter to load several different species of goods alternatively, he may fill up the load with any he pleases, though in the way least beneficial to the owner, provided he does not exceed the limits specified, if any. Of course, if he does exceed those limits, he may pay as if the cargo in excess was of a nature permitted. Covenant to take on board a full cargo of copper, tallow, and hides, or other goods, but not more than 50 tons of copper and tallow, nor (6) See as to cases wliere a scale of freight is fixed for certain articles which are not actually carried, or not to the stipulated extent, T/tomas v. Clarice, 2 Stark. 450, and ante, p. 209. (c) 6 C. B. 814. (d) Ilarries v. Edmonds, 1 C. & K. 686, per Parke, B. [In Smith v. McGuirc, uli supra, Martin, B., declined to say that the captain was bound to look for employment for his ship, though whaterer the ship did earn the defendant would be entitled to have deducted. It has been said that if the captain's conduct has been unreasonaljle, the jury may diminish the damages on that account ; Wilsoyi v. Hides, 26 L. J. Ex. 242.] ACTIONS BY CARRIERS FOR NOT SUPPLYING CARGO. 213 more than 15 tons of copper; covenant to furnish a full cargo of copper, tallow, and hides, or other goods, as above mentioned at certain rates. Defendant provided a quantity of tallow, and as much hides as the vessel could carry, but no copper. In consequence, she had to keep in her ballast, the place of which mighb have been supplied by the copper, and lost so much freight, for which the action was brought. Lord EUenborough said, " The parties very likely intended that copper should necessarily form a part of the cargo, but they have not said so. The covenant leaves a latitude to the freighter to furnish a cargo of ' copper, tallow, hides, or other goods' Tlierefore, if the ship had as large a quantity of tallow and hides as she could take on board, I think the covenant has been per- formed" {e). It will be observed that the plaintiff sought to obtain not only a full cargo, which he had, but something more, viz., to turn the ballast, which is generally waste weight, into productive freight. Now, as Tindal, C. J., remarked in Irving v. Clegg (/), " it is the duty of the owner to find proper ballast for the ship." And any agreement which would have the effect of transferring this obligation to the charterer would be interpreted very strictly. In the last-named case it was agreed that the freighter should ship a full cargo of certain specified goods: "100 tons of rice or sugar to be shipped previous to any other part of the loading, to ballast the vessel." The 100 tons were shipped, but were not sufiicieut for ballast, and tlie owner had to take on board 36 tons of stones. It was held that the freighter had done his duty in loading the 100 tons; that the agreement with regard to them was for the benefit of the owner in ensuring him a freight for what would otherwise be unproductive, but that except so far as the special agreement extended, it left his obligation to find ballast just as it was at first {g). If there is a known and recognised custom of loading, at the Evidence of custom. (e) Moorsom v. Paije, 4 Camp. 1 03. (/) 1 B. N. 0. 53. (o) 1 B. N. C. 53, 58. [Aud see Southampton Steam Colliery Co. v. Clarke, L. R. 4 Ex. 73 ; 38 L. J. Ex. 54 ; affirmed iu Ex. Cli. L. R. 6 Ex. 53 • 40 L. J. Ex. 8. Whether in addition to the cai-go the charterer is bound to fill u]5 with broken stowage, depends on the terms of the charter-party ; Cole V MecJc, 15 C. B. N. S. 795; 33 L. J. C. P. 183 ; Duckett v. Satterjield, L. R. 3 C. P. 227 ; 37 L. J. C. P. 144.] 214 ACTIONS BY CARRIERS FOR NOT SUPPLYING CARGO. Eigiii of char- tei-er who \ms not supplied a cargo to be allowed for freight earned afterwards. port to which the charter-party refers, this custom will, accord- ing to the well-known rule of evidence (h), be incorporated in the contract, and, if departed from, to the loss of the owner, damages will be estimated accordingly (/). Accordingly, where, by the practice of the port, cotton bales for exportation were always compressed by machinery, the furnishing a cargo of uncompressed cotton bales was held not to be a compliance with the contract to load a full cargo. The same charter-party gave the freighter an option either to load the whole ship with cotton at a high fi'eight, or part of it with cotton, and the re- mainder with rice at a lower freight. The latter, if loaded at all, would have to be put on board first. It was held that by beginning to load with cotton, the freighter had elected to furnish a full c?irgo of it, and that damages for not supplying such a cargo mast >,i estimated at the higher freight (k). Sometimes there is a stipulation that in case the charterer cannot find a cargo, he shall pay a certain sum, and in such cases questions often arise as to his right to be allowed for freight subserjueir: ^y earned by the ship. It would appear from the cases, that where the right of the ship-owner to the sum specified has once absolutely vested, he may earn as much as he can, and retain it, over and above the payment from the charterer. A ship was freighted for a voyage to Petersburg and back at so much per ton measurement. She was to bring a single cargo of lead out, and to bring home a return cargo. If from political circumstances she should remain forty days at Petersburgh without the outward cargo being unloaded, and consequenthj unthout the rdurn cargo Tjeing loaded, the captain was to return to England, and be paid a gross sum, which was less than the money payable per ton. The cargo could not be unloaded, and the captain returned as agreed, bringing back the lead, but on his way home he obtained further freight, and earned money : — Held that he was entitled to retain it. On the whole construction of the charter-party it was considered to amount to an alternative agreement, either to load a return cargo, and pay so much per ton, or to pay a Qi) Tayl. Ev. 767. [See p. 1009, et seq, 6tli ed.] {i) Wallace v. Small, cited 1 B. N. C. 55. {k) Benson v. Schneider, 7 Taunt. 272. [And see Buckle v. Knoop, ante, p. 209.] ACTIONS BY CAERIERS FOR NOT SUPPLYING CARGO. 215 gross sum for the conve\'ance of the lead to Petersburg and back again. In the latter erent there was no reason why the captain should not earn what else he could by taking other people's goods on board for his own benefit (/). On the other hand, where, under a similar state of things, the master, instead of bringing the goods home, sold them at Stockholm, and brought home another cargo, upon which he earned freight, it was held that the amount so earned must be deducted from the amount payable by the freighters (m). With regard to this case, Mansfield, C. J., says (w), " For aught that appears the means which the captain had of obtaining any freight at Stockholm might arise from the use he made of the lead there ; and on that account perhaps the Court of King's Bench might think that the captain, who had not been authorised, or directed, to act thus, but had done all this for his own benefit, should not be entitled to that profit, leaving the underwriters to pay the whole 2500?." Should such a case recur, the question will probably be, whether the captain was bound to bring back the cargo, as it seems to have been assumed in the above cases he was. If so, any money earned by not bringing it home Avould clearly be earned for the benefit of the freighters, if they chose to ratify his act. If, however, there was nothing to prevent him putting the goods on shore, or throwing them overboard, unless received from him, it is hard to see what difference it could make as to the freight of the goods substituted, that they had been sold instead of cast away. If, however, the freighters have not followed the agreement sphere cliarterer in such a manner as to entitle themselves to pay the stipulated j^^s not become .„ , , liable to pay sum in full discharge of all damage, their case will return to penalty. the ordinary rules, and while they on the one hand may become liable to pay more than that sum, so the owners may be entitled to demand less. The defendants chartered a ship to New Zealand, and it was agi'eed that they were to load her there, or by their agent to give notice that they abandoned the adventure, in which case they were to pay 500/. On the ship's arrival there was no agent of theirs, either to supply a (7) Bell V. Puller, 2 Taunt. 285. (m) Puller Y. Staniforth, 11 East, 232. {•,/) 2 Taunt. 800. 21G ACTIONS BY CARRIERS FOR NOT SUPPLYING CARGO. carg6, or to abandon the adventnre. The captain waited the prescribed time, and then went in search of freight, and ulti- mately obtained a cargo far more remunerative tlian that which the defendants were bound to supply. He claimed to retain the freight and to recover the 500/. also. It was held, however,— 1st, that if the defendants had given due notice of abandonment, their obligation to pay the 500/. would have become absolute, and that while the plaintiff could have re- covered no more, whatever his loss had been, they could have claimed no reduction on account of his gains. 2ndly, that as no notice of abandonment had been given, their right to close the transaction by payment of 500/. had never attached, nor on the other hand the right of the plaintiff to demand this sum. Therefore the contract remained as if there had never been such a stipulation. If the plaintiff had lost more than 500/. he might have recovered more ; but as he had in fact lost nothing, he was only entitled to nominal damages for the breach of contract (o). If the charterer himself consents to the owner's making any profit of his ship, as, for instance, by taking an intermediate trip between the outward and homeward voyage, no claim to a reduction of freight can be set up on this account, even though the result of the indulgence may be that higher freight is pay- able by the defendant {p). Actions for breach of contract to employ, probably seldom, if ever, occur in the case of carriers by land. The principles upon which the damage would be assessed in such a case are too obvious to require comment. Dangerous goods. [There is an implied undertaking on the part of shippers of goods on board a general sliip that they will not, without giving notice, ship packages of a dangerous nature, which the servants of the shipowner may not, on inspection, be reason- ably expected to know to be of a dangerous nature. In case of such a shipment causing damage, the shipowner must com- pensate the shippers of other goods sustaining damage, and will have a remedy against the shipper of the goods which have caused the calamity (g). And so if personal injury is caused to (o) Staniforth v. Lyall, 7 Bingli. 1C9. (p) Wiggins v. Johnston, 14 M. & W. 609. [{q) Brass v. Maitland, 6 E. & B. 470, 483 ; 2G L. J. Q. B. 49. The ACTIONS AGAINST CARRIERS FOR NOT CARRYING. 217 the carrier or his servants, and 'it is the probable consequence of not giving notice, the sender is responsible (r). By 29 & 30 Vict. c. 69, carriers may refuse to receive goods declared to be specially dangerous, and penalties are imposed on persons sending them without notice.] II. Actions against carriers. Actions against 1. Damages against the owner of the ship for not taking a takbg^ooas! ' cargo are regulated, on exactly the same principles as those against the freighter for not supplying it, by the amount of damages actually and necessarily incurred (s). If the freighter could not procure any other ship, the damages would of course be measured by the injury suffered, from having his cargo left on his hands ; bearing, however, in mind, that in all such cases the damages suffered must be such as the contracting parties were led to contemplate (f). If another ship could be procured, the damages would be measured by the increased rate of A'eight payable (u), and if such freight was in fact less than that contracted for, the damages would of course be merely nominal for breach of contract. In all cases, however, the damages must be the necessary and immediate consequence of the breach committed. A ship's husband covenanted to load brandy on board a ship, and proceed with it to Madeira, and the merchant covenanted to pay freight for it there, and load it with a full cargo home. The merchant arranged at Madeira to barter the brandy which he expected for fruit, which was to form the cargo home. No brandy arrived, in consequence of which he was unable to procure a cargo. The ship's husband sued and recovered against him for not supply- ing cargo. He then sued the ship's husband for not bringing the brandy, laying as special damage that by reason of his not doing so, plaintiff had been unable to procure a return cargo, and in this way he claimed to recover the amount paid in the former action and its costs. It was held that such damage was too remote, and Tindal, C. J., said, "If I contract to shipper's duty was, by Crompton, J., limited to the obligation to take proper care not to deliver dangerous goods without notice.] Ur) Farrant v. Barnes, 11 C. B. N. S. 553 ; 31 L. J. C. P. 137.] (s) Hunter v. Fry, 2 B. & A. 421, 427 ; Walton v. Fothergill, 7 C. & P. 892. (t) Hadlcy v. Baxendale, 9 Exch. 341; 23 L. J. Ex. 179. [(it) Jlirjfjinson Y. Weld, 80 Mass., 165.] 218 ACTIONS AGAINST CARRIERS transfer stock and do not, the party with whom I contracted has no right to tell me a month afterwards that if I had transferred the stock he could have bought an estate with the money. There was a case of a man who brought an action against the keeper of a ferry-boat for refusing to carry him across a river, in consequence of which he sustained loss by not being able to keep an appointment. But it was held that he could not recover damages on any such ground " (.r). If, however, the plaintiff, in order to perform a contract, is forced to buy other goods at an increased price, in consequence of the non-arrival of those which the defendant had contracted to bring, this, it seems, is such a natural result of the defen- dant's neglect as to entitle him to recover his loss (y). Effect of notice In most questions of special damage, it is very important to cM ckmaL''^'^" ii^quire what notice the defendant had received of the effect which might result from his breach of contract. The 'plaintiff sent goods by rail, which he intended to sell at the B. market on Saturday, and which ought to have arrived in time for it. No notice, however, of this desire was given to the defendants. On Saturday the plaintiff's clerk went down to B. to look after them. They did not arrive till Monday, in consequence of which he removed them to N., and sold them there. The question was, whether the expense of removal, and of his wages and expenses while absent on this duty, were recover- able. Pollock, C. B., told the jury they were at liberty to give these expenses as damages if they liked. The jury gave them, and on motion for new trial it was held, 1 st, that it was a question for the jury, not for the judge, whether these expenses were the reasonable consequences of the breach of contract, and that whether any particular class of expenses is reasonable or not, depends upon the usage of the trade, and various other circumstances. 2nd, that if the carriers had distinct notice that the goods would be required to be delivered at a particular time, they would, perhaps, have been liable for these expenses ; but that otherwise they would not be. 3rd, that under the circumstances these expenses (x) Walton V. Fotliergill, 7 C. & P. 394. (y) Walton v Fotliergill, uhi sup. FOR BREACH OF CONTRACT TO CARRY. 219 were unreasonable and the damages excessive (s). But with great deference it may be submitted, whether the question, as it appears to have been left to the jury, did not involve matter of law as well as matter of fact, and whether upon the question so left they could have found differently. The defen- dant's liability to loss or expense arising out of the non- delivery of goods, or any other act connected with the discharge of his duty, depends upon the answer to two ques- tions : 1st, was that loss or expense the reasonable result of the existing state of facts ? 2nd, did the defendant contem- plate and contract to guard against such a state of facts ? If both these questions are answered in the affirmative, he is of course liable. In the case under consideration the facts were that goods were to be sold at a particular market, that they were too late for it, and that they could only be sold with proiit at some distant place. The jury found, no doubt ]3roperly, that the expenses incurred under these circum- stances were proper and reasonable. But the most important question was, whether the defendants had ever contemplated or contracted to guard against this state of facts. It seems quite clear they had not ; and if so, it may be suggested whether the learned judge ought not to have told them that there was no evidence upon which they could find affirmatively in answer to the latter question. If, then, one of two neces- sary premises was negatived, it would seem that it became a matter of law to direct them that the conclusion sought for by the plaintiff could not be drawn. The judgment in Hadley v. Baxendale (a) seems in favour of the view which is here offered {b). (z) Blacl V. Baxendale, 1 Excli. 410. (a) 9 Exch. 341 ; 23 L. J. Ex. 179. (b) See further as to remoteness of damages, Hadley v. Baxendale, and Watson V. Amhergate Ry. Co., 15 Jur. 448, which have been stated and dis- cussed already at such length, pj). 9, 30, as to make it only necessary to refer to them now. [Also Hales v. London and N. W. Ry. Co. , 4 B. & S. ffe ; 82 L. J. Q. B. 292, where expenses incurred in inquiring for goods were held recoverable, but not loss of hire caused by their not arriving by the day for which they were hired ; G. W. Ry. Co. v. Redmayne, L. R. 1 C. P. 329 ; where loss of profit on sale by reason of the goods being delayed till after the plaintiff's traveller had left, was held too remote ; Crouch v. G. N. Ry. Co., 11 Ex. 742 ; 25 L. J. Ex. 137, as to loss of business from defendants refusing to carry the plaintiff's packed parcels ; and as to delay in con- veyance of passengers, Hamlin v, G. N. Ry. Co., 1 H. & N. 408 ; 26 L. J. Ex. 20.] 220 ACTIONS AGAINST CARRIERS FOR LOSS OR INJURY TO GOODS. [And accordingiy in a very recent case ^liere the plaintifiP, a commercial traveller, sent a parcel of samples by luggage train from Oxford to Liverpool without informing the railway com- pany what it contained or for what purpose it was required, and by the negligence of the company the delivery of the parcel was delayed, and the traveller spent three days at Liverpool un- employed waiting for it, Lush, J., directed the jury that the plaintiff could not recover his hotel expenses from the railway company, and the ruling was supported (c).] Penalty. Where the charter-party contains a penalty, which is not hquidated damages, a larger sum than the penalty may be obtained by suing, not for it, but for damages for the breach of contract {d). Mode of calra- 2. The damages in actions for loss or injury of the goods lating value of are generally confined to the value of the articles lost. And foTti^'lJljury it makes no difference that they have got into the hands of to them. third parties who are also liable to the owner. In a very late case the defendants, a railway company, delivered the plaintiff's goods by mistake, not to the right consignee, but to J. S., who had been in the habit of receiving the plaintiff's goods as his factor. J. S. sold the goods, as he fancied he was authorised to do, and rendered an account of the sale to the plaintiff. He subsequently stopped payment. The plaintiff sued the de- fendants for the goods, and it was held that he was entitled to recover the amount for which they sold, and that he was not prejudiced by having tried to obtain the proceeds of the sale from J. S. This was no ratification of the defendants' act (e). The only question then will be as to the mode of estimating this value. [It will be in general the market value of the goods at the place and time at which they ought to have been delivered (f), independently of any circumstances peculiar to the plaintiff {g). If from the smallness of the place or the [(c) Woodier v. G. W. Ei/. Co., L. R. 2 C. P. 318 ; 36 L. J. C. P. 177. (d) Wiiiter v. Trimmer, 1 W. El. 395 ; Harrison v. Wnyht, 13 East, 343 ; Maylam v. Norris, 2 D. & L. 829. (e) Sanquer v. London and 8. W. By. Co., 16 C. B. 163. [(/) Rice V. Baxendale, 7 H. & N. 96 ; 30 L. J. Ex. 371 ; Wilson v. Lancashire and Yorkshire Ry. Co., ante, p. 15 ; Collard v. S. E. Ry. Co., ante, p. 15; O'Hanlan v. G. W. Ry. Co., 6 B. & S. 484; 34 L. J. Q. B. 154.] [(^f) G. W. Ry. Co. V. Redmayne, L. R. 1 C. P. 329.] ACTIONS AGAINST CAKRIERS FOR LOSS OR INJURY TO GOODS. 221 scarcity of the article or other reasons there is no market price, the real value at the time and place must be ascertained, as a fact, by the jury, taking into consideration the circumstances ■uhich would otherwise have influenced the market price if there had been one, price at the place of manufacture, cost of carriage, and a reasonable sum for importer's profit (A).] In an action against shipowners for loss of goods. Lord Ellen- borough said that the plaintiffs were entitled to recover the value of the goods on board at the time she was captured, by means of the deviation. That in the absence of any other evidence, that value could not be taken as more than the cost price and shipping charges, and that the insurance premium could not be added, as no new value was given to the goods by insuring them (i). AVhere, however, the cargo was conveyed to its proper destination, and there handed over to a person Avho was not entitled to it, it was decided that its value at the port of discharge was the proper measure of damages. Parke, J., said, " The plaintiffs are entitled to be put in the same situation as they would have been in, if the cargo had been delivered to their order at the time it was delivered to B. ; and the sum it would have fetched at that time, is the amount of loss sustained by the non-performance of the defendant's contract " (_/). Where no evidence at all can be given, tlie question of value must be resolved by the usual rules upon which presumptions of this sort are governed. If any evidence of value is withheld by the defendant, the goods, as against him, would be presumed to be of the highest value articles of that nature were capable of (Jc). Unless any such circum- stances existed, the jury would, no doubt, as in a former case, be directed to give damages proportioned to what they might consider to be the fair and probable value of the articles in question (/) ; " and not to pare down the amount of damages, because the articles could not be distinctly proved." Where the plaintiff is not himself the owner of the goods, but has only a qualified property in them, he will be entitled to recover their whole value from the carrier, if he is himself liable for their [(A) O'Hanlanv. The 6. W. Ry. Co., supra.] (i) Parker V. James, 4 Camp. Il2. (j) Brandt v. Bowlby, 2 B. & Ad. 932, 939. (k) Armory v. Delamirie, 1 Stra. ."(Oo. {/} Butler V. Basing, 2 C. & V. 613. 222 ACTIONS AGAINST CARRIERS FOR LOSS OR INJURY TO GOODS. value to the owner ; aud it is not necessary that he should have actually paid the owner (m). Cases of special damage accruing from loss of goods, injury to them, or delay in their delivery, are governed by the prin- ciples laid down above. The same question as to the mode of valuing goods that have been lost to the owner, often arises in a different way. ^Yhcn goods It is the primary duty of the master of a ship, acting for have bcea sold ^j^g owner, to convey the cargo to its place of destination in for repair of , . , . _ ^ , • • . m ship. the same ship, and m case of damage to repan- ifc. J o accom- plish the latter object, he may, in cases of urgent necessity, sell the cargo, which is, in effect, borrowing from the shipper through the medium of a sale. Such a proceeding raises an implied contract of indemnity from the owner, for whose benefit the act was done, in favour of the shipper (w). The question then arises, at what value are the goods to be taken for the purpose of this indemnity? "Where the ship has arrived, the owner is entitled to the amount which they would have fetched at the port of destination (o). If, however, the goods have actually been sold for a higher price than they would have been worth, if delivered, it does not seem quite settled whether the owner can claim this sum. In one case, where goods had been sold in this manner. Lord Ellenborough decided that the owner might deduct the sura which they had brought from the entire freight due {i)). It does not appear, however, whether the owner lost or gained by taking this standard. In another case, where the selling price was de- cidedly higher than what they would have fetched ut their destination, and an arbitrator adjudged the selling price to be due, the Court refused to set aside the award, saying it did not clearly appear that it was wrong. Holroyd, J., seemed in- clined to think it was right. He said, " There is strong reason for contending that the owner of goods should receive a com- pensation for the goods sold according to their highest value. If the master could get money by other means, he had no right to sell ; and if he had sold the goods, the owner ought to be (m) Crouch v. London and N. W. Ry. Co., 2 C. & K. 789. (w) Benson v. Duncan, 1 Exch. 537 ; 3 Exch. 644. (o) AUrs V. ToUn, Abb. Ship. 372 ; [330, 11th ed.J Halldt v. Wijrcm, y \j. t>. 580, {])) Cami^hell v. Thompson, 1 Stark. 490. ACTIONS AGAINST CAIIRIERS FOR LOSS OH INJURY TO GOODS. '^'^^ entitled to the actual proceeds, for the owner of the ship, in the event that has happened, ought not to be allowed to make any profit by such sale" (q). Where the ship has never arrived at her destination, but has been lost since the sale, it is now settled that the goods cannot be taken at their price at a place which they never could have reached. It is not decided whether, in such a case, the owner would be liable at all (r). The foreign codes and jurists are at issue upon the point. Lord Tenterden, in his treatise (s), considers it to be the most reasonable doctrine that the money should only be payable in case of the safe arrival of the ship, as the merchant is not thereby placed in a worse situation than if his goods had not been sold, but had remained on board the ship. On the other hand, the shipow-ner is clearly in a better situation than if he had furnished the money himself, or it had been borrowed on his credit. It seems curious that a case so likely to occur in a mercantile country should never have been decided. The liability of shipowners for loss not attributable to theii- Liability of ship- own default, has been restricted by statute in various cases. " ^is^d by pUoV The Merchant Shipping Act, 1854 (/), s. 388, provides, that no owner or master of any ship shall be answerable to any person whatever for any loss or damage occasioned by the fault or in- capacity of any qualified pilot, acting in charge of such ship, within any district where the employment of such pilot is com- pulsory by law. This section will only protect the owner, &c., where the loss occurred wholly from the fault of the pilot ; and if it was, [or may have been,] partly the fault of the master or crew, the liability continues (w). This clause differs from the corresponding section of 6 Geo, IV. c. 125, s, 55, which ex- tended the immunity to cases where a pilot was acting in charge of the ship under any of the provisions of the act. Accordingly it was held, [under that section,] that the owner was not liable when the pilot was taken on board under circumstances which iq) Richardson v. Nourse, 3 B. & A. 237. ()■) Atkinson v. Stephens, 7 Excli. 567. (5) Abb. Ship. 372, [330, 11th ed.] («) 17 & 18 Vict. c. 104. (i() {The lona, L. R. 1 P. C. 426 ; The Vclas}). In an action on a covenant of indemnity by a surety, who Interest, has been compelled to pay money for his principal, the jury may give interest as damages. The damages ought to in- demnify, and the surety has been damnified by losing the interest of the money he has paid. Such a case differs from that of direct contracts to pay a sum of money, upon which no interest is given at common law, because there the intention of the parties is presumed to be expressed in the terms of the contract. And the rate of interest which the principal him- self had allowed, in stating an account with the surety, was held to be the proper basis of calculation (o). In an action by bail against their principal, the former may Action by bail, recover all expenses incurred in rendering up the latter. In a case of this sort Lord Ellenborough said, " The relation of principal and bail is this, — the principal engages to indemnify the bail from all expenses fairly arising from his situation as bail. I think the indemnity goes against all charges which are necessary to secure themselves. The bail have a right to surrender the principal in their own discharge, and for their own security. If, therefore, the principal abscond, so that he (I) West V. Chamherlin, 8 Pick. 336. (m) Ainsliev. Wilson, 7 Cow. 662. (n) Bonney v. Seelif, 2 Wend. 481 ; Howe v. Maclcay, .5 Pick. 44. (o) Petre v. Duncomhe, 20 L. J. Q. B. 242; 2 L. M. & P. 1U7 ; [and see Ilitchmanv. Stewart, post, p. 249.] 248 ACTIONS ON CONTRACTS OF INDEMNITY Wlien surety may sue co- surety, and for what. Proportion for which each surety is liab'e. cannot be had, the bail may take every proper and necessary step to secure him." Where however the bail employed an agent to find the principal, and then refused to pay him, and was sued, it was held that he could not recover against his principal the costs incurred in defending the action (?;). But no damages can be recovered by bail in respect of his trouble or loss of time in taking a journey to become bail. Because he does this, not as a person employed by the defendant, but as a friend through motives of kindness (q). [Where a de- fendant, removing an indictment by certiorari, gives bail for his appearance and for the ppvment of the costs, a contract on his part will be implied to indemnify the bail against the prosecutor's costs. An express or implied contract to indemnify the bail against the consequences of the defendant's not appearing would probably be contrary to public policy, in- asmuch as it would be giving the public the security of only one person instead of two (r).] 3. Action by surety against co-surety. This action does not arise till it appears that one surety has paid more than his proportion of what the sureties can ever be called upon to pay, and then it only lies for the sur- plus. Thus if the surety has paid less than his aliquot portion of the debt, and the principal has then paid the residue, the right of action against the co-surety will not run from the payment by the surety, but from the payment by the principal, for until the latter date it does not appear that the surety has paid more than his share (s). The proportion which each surety is bound to pay as his own share differs at law and in equity. At law it is calculated in reference to the original number of sureties, though some of them have since become insolvent {t), or have died since the making of the contract (u). But in the latter case the Court of Queen's Bench were strongly of opinion that the personal representatives of the deceased surety would be liable (p) Fisher v. Fallows, 5 Esp. 171.1 (q) Reason Y. Wirdnam, 1 C. & P. 434. [(?•) Jones V. Orchard, 16 C. B. 614; 24 L. J. C. P. 229.] (s) Davies v. Humphreys, 6 M. & W. 153, 169. (<) Cou-ell V. Edivards, 2 B. & P. 268. (m) Batard v. Hawes, 2 E. & B. 287. BY SURETY AGAINST CO-SURETY. 249 for a share. lu equity, however, it is calculated according to the number who are still solvent (v). [In equity, also, the surety has been held entitled as against Interest. his co-sureties to interest on what he has paid {w}.] Where the plaintiff and defendant had executed, as sureties, Costs of suit. a warrant of attorney, given as a security for the debt of their principal, and on default by him, judgment was entered up on the warrant of attorney, and execution issued for the amount due, which the plaintiff' paid with costs, it was held that he might recover the moiety of the costs of the execution {x). But he cannot recover costs improperly incurred in defending an action brought by the original creditor, and money paid by the principal debtor cannot be applied in payment of such costs, but must be taken in reduction of the debt itself (y). The right to sue a co-surety for contribution exists equally When sureties whether they are bound in one instrument or several, and '^'I't'^"^^^*! ^{ •' ' clinerent mstru- whether they knew of each other's engagements or not ; for meuts. the payment by one is equally a benefit to the others {.z). There is one important difPerence, however, viz., that sureties bound by the same instrument must all contribute equally, whereas, if bound by different instruments, the sums in each ascertain the propoi'tions of the principal debt they are to pay (a). But one surety, who has induced another to enter into an engagement of suretyship, has no claim against him for contribution {!)). And so, if by arrangement between themselves, one of the joint contractors, though liable to the creditor, was not to be ultimately liable to pay any portion of the debt, no action could be maintained against him (c). Where there are several under-lessees, at distinct rents, of separate portions of premises held under one original lease, at an entire rent, and one pays the whole rent under a threat of distress, he cannot have an action for contribution against the (v) Peter v. Rich, 1 Cha. Rep. 19. [(w) Hitchman v. Steivart, 3 Drew. 271 ; 24 L. J. Cli. 090. ] (x) Kemp V. Finden, 12 M. & W. 421. ly) Knight v. Hughes, 3 C. & P. 467. (2) Dtei-ing v. Winchdsca, 2 B. & P. 270 ; Crai/ihorne v. Sivinhuriie, 14 Yes. 160. (a) 2 B. & P. 273. (6) Turner v. Davies, 2 Esp. 478. (c) Per Lord Campbell, Batard v. Hawes, 2 E. & B. 287 ; Craijthorne v. Swinburne, 14 Yes. 160. 250 LIFE INSURANCE. other lessees. His only remedy is in equity (d). But it is different where several have bound themselves for the rent of an entire set of premises. Therefore where the plaiutiflp and defendant, who were members of a committee, hired premises from D. for the use of their company, and the plaintiff was sued for the rent, he was allowed to recover contribution from the defendant, though the latter had ceased to be a member of the committee before the rent had accrued (e). II. Life, Fire, and Maritime Insurance, Life insurance. The two former of these heads require little remark. A life insurance is a simple contract to pay such a sura at the death of the insured, and neither more nor less than this sum, with interest, under 3 & 4 W. IV. c. 42, s. 29, can be recovered. It was once decided in a remarkable case arising out of the debts of W. Pitt, that a life insurance, when entered into by a creditor of the party insured, was a contract of indemnity, and that he could only recover upon it the amount of debt still un- paid when the policy became due (/). This decision was for a series of years rather acquiesced in than confirmed, while in practice it was uniformly disregarded by the insurance offices, who always paid the amount of the policy without asking any questions as to the existence of the debt. The decision itself has been simultaneously oven-uled, at law and in equity, by two very recent cases (g). It is now settled that the stat. 14 Geo. III. c. 48, s. 3, {h) which enacts, " that no greater sum shall be recovered from the insurers (^) than the amount or value of the interest of the insured in such life," refers to the interest possessed at the time of making the policy. (d) Hunter v. JIunt, 1 C. B. 300. [Nor is a landowner under any obliga- tion to indemnify tlie owner of a stack of wheat which, being lawfully on the land, is seized by the Ecclesiastical Commissioners under 6 & 7 W. IV. c. 71, for a tithe-rent charge on the land ; Griffinhoofe v. Daubuz, 4 E. & B. 230 ; 24 L. J. Q. B. 20 ; affirmed 5 E. & B. 746 ; 25 L. J. Q. B. 237, in Ex. Ch.] (e) Boulter v. Peplow, 9 C. B. 493. (/) Gndsall V. Boldero, 9 East, 72. {y) Dalhy v. India and London Life Assurance Co., 24 L. J. C. P. 2 ; 15 C. B. 365; Law v. Indisputable Assurance Co., 1 Kay & John. 223; 24 L. J. Ch. 196. [(h) Extended to Ireland by 29 & 30 Vict. c. 42. By 30 & 31 Vict. c. 144, assignees of policies who have given notice, may sue in theii" own names.] [{{) That is, whether upon one policy or many ; Hebdon v. West, 3 B. & S. 579 ; 32 L. J. Q. B. 85. In that case a promise by the person whose life was insured, to employ the plaintiff for seven years at a certain salary, was consi- dered to be a pecuniary interest in the life "to the extent of as much of the period of seven years as remained unexpired at the time when the policy was effected. ] FIRE INSURANCE. 251 Of course an insurance against injury to life or lirab by Insurance _ accidents, is strictly a contract of indemnity. In case of J^^^"^ death, the amount is regulated by the sum insured. Where the injury falls short of death, the damages are not to be estimated by any proportion between the amount of injury sustained by the accident, and the amount of loss by death. The true measure is the amount of injury the plaintiff has sustained, not exceeding the entire sum insured ; that is the expense, and pain, and loss, it may be of a limb, connected with the immediate accident, but not the remote consequences that may follow, according to the pursuit or profession which he may be following. Therefore, loss of time or profits can- not be considered, otherwise one party, whose time was more valuable than that of another, would, for precisely the same personal injury, receive a larger remuneration {Jc). A fire insurance differs from a life insurance in being pro- Fire insurance ^ . , . • ^ 1 ^ contract of perly a contract of indemnity ; the insurer engaging to make indemnity, good, within certain limited amounts, the losses sustained by the assured in their buildings and effects (l). Most fire policies contain provisions by which the company is at liberty either to pay the amount of the loss, or to supply the like quality or quantity of goods with those burnt or damaged by fire, and rebuild the premises themselves {771). There is a remarkable dearth of decisions in England on Mode of valuing . , 1 p r. ■ T 1 1 subject matter. the subject of damages m the case of fire insurance ; probably on account of the liberality usually displayed by the com- (k) Theobald v. Raihvay Passengers Assurance Co., 10 Exch. 45; 23 L. J- Ex. 249. , , , r-r , ^ -,r (I) Per Lord Campbell, Dalbijv. India and London Life Assura7ice Co., 15 C. B. 365 ; 24 L. J. C P. 6. (m) See Forms in Park on Insm-ance ; Marshall, Insurance. [When they have once elected to re-instate they are bound to do so or to pay damages for not doing so, though performance may have become impossible ; Broivn v. Royal Insurance Soc, 1 E. & E. 853 ; 28 L. J. Q. B. 275 ; decided^ upon demurrer, and dissentiente, Erie, J. In this case the Commissioners- of Sewers had caused the structure insured to be taken down as being in a dangerous condition. The Coui-t expressly declined to state upon what principle the damages were to be assessed. Morrell v. Irving Fire Ins. Co., 33 N. Y., 429, is also an authority that an election to rebuild converts the contract of insurance into a building contract ; and that the damages in case of partial performance will be the amount required to complete the building by making it substantially like the one destroyed ; and that where two companies have elected to rebuild, the entire damages may be recovered from one company, leaving them to seek contribution from the other. ] 252 FIllE INSURANCE, panies (fi). The question was, however, very fully discussed in an American case, in which some leading principles were laid down, with that fulness which characterises the judgments of the Transatlantic Courts. The plaintiff was lessee of a term, which would expire on the 1st September. Upon the land was a moveable building. He had the option of either renewing his lease, or taking away the building with him. It was insured for 160/. with the defendants. On the 15th August it was burnt, the lessee having at that time given no notice to renew the lease. The only question at the trial was as to its value. Evidence was given that the building if suf- fered to remain on the premises was worth 200Z., but that if taken away, it would only, as a separate chattel, be worth 40/. The defendants contended, that as at the time of the fire no notice to renew the lease had been given, it must be presumed that the plaintiff did not intend to renew it, and therefore the building should be valued at 40/., which was all it would be worth to him when taken away. The plaintiff, on the other hand, claimed to recover the whole amount of the policy, on two grounds. First, that the sum named must be taken to be the ascertained value of the subject-matter of insurance. Secondly, that the intrinsic value of the building as it stood should be the standard of measurement, and not its value in reference to his mode of dealing with it. The Judge ruled in his favour on the latter ground, and this ruling was decided to Amount of policy be correct by the Supreme Court of New Yoi'k (o). The first vduation^'^'^'^ poiut made by the plaintiff was given against him, the Court holding on the analogy of marine insurance, and on the authority of two English cases (p), that " the recovery of the assured must be regulated by the value of the property; for if the policy be a personal agreement to indemnify him against loss or damage, his claim will be satisfied by the reimburse- ment to him of the actual value of the property at the time, which is the true amount of his loss by the peril ; " and that the amount named did not operate as an agTced valuation [(n) There have been numerous decisions in North America which, with tliose in Great Britain, will be found collected in Littleton and Blatchley's Digest of Fire Insurance Decisions, 2nd ed., New York, 1868.] (o) Laurent v. Chatham Fire Insurance Co., 1 Hall, 41. (p) Lynch v. Dahell, 4 Bro. P. C, 431 ; Sadlers' Co. v. BadcocL 2 Atk. 554. FIRE INSURANCE. 253 of the subject-matter. "The undertakmg is to pay the amount of the actual loss or damage, but with the restriction of the amount of tlie payment to the sum mentioned in the policy." On the second point their judgment was equally clear in Absolute value his favour. " But it is said that the policy is a contract of °^' {J^VSr not indemnity, and that the principle of indemnity wdiich pervades its value to the the insurance, must control the construction of the policy; "'*^^"'*^^- and upon this principle it is insisted, that the value of the property to the assured at the time of the loss, circumstanced as it may then be in reference to his use and enjoyment of it, is the loss he sustains by the destruction of it, and is the measure of his indemnity for the loss. It will be at once seen that if this principle of indemnity is to be admitted, the extent and value of the recovery will in eveiy case vary with the special and peculiar circumstances of the insured, and the local advantages or disadvantages of the building, and the uses to which it is applied ; and the intrinsic value of the building will form no criterion of the loss of the proprietor in case of its destruction. A building for example, which the necessities of the owner compel him to offer at public sale for ready money, will be worth to him no more than what it will produce at such a sale ; and a building for which there happens to be a great competition, will command a much larger price than its true value. Are these collateral and incidental circumstances to enter into the estimate of value ? Two houses of equal value may, from their local situation, be very unequal in the revenue they produce to their proprietors ; would the loss of them, if destroyed by fire, entitle the pro- prietors to diflFerent indemnities, in proportion to the rents or the revenues of the tenants ? It is the tenement upon which the insurance is made, and the actual value of it, as a building, is the loss of the insured in case of its destruction by fire. To that measure of indemnity the proprietor is entitled, how- ever unproductive the property may be, and he is entitled to no more, whatever revenue he may have derived from the tenement." " It is of no importance whether the tenement stands on freehold or leasehold ground, or whether the lease is about expiring, or has the full time to run, when the fire occurs, or whether it is renewable or not. The condition of 254 I'"l^^^ INSUilANCE. the policy is satisfied if tlie title and ownership are in the insured, at the time of the insurance, and at the time of the loss. And the measure of his indemnity is the amount of his interest in the tenements when destroyed by fire, notwith- standing that the whole interest would have expired the very next day, or soon after the loss occurred. But whether there may not be incidents, or special circumstances so intimately connected with the premises, or so permanently attached to them, as to affect their intrinsic value, or the insurable interest of the party in them, we arc not prepared to say, and it is not material to the decision of the ijuestion before us to inquire, for this clearly is not such a case." Whether pro- I am not aware that it has ever been decided, whether the rhoiL'\^je*taken ^^"^g" it>sured should be estimated at its value when destroyed, nt its value be- or at the amount for which it might be replaced. In the case OTlt^^t^he^miun't ^^ goocls, the two values would be in general synonymous. for which it Half-wom fumiture, for instance, might be replaced by second- re laced^ hand articles of precisely similar value. Of course articles of vertu, such as antiques, statues, or pictures, which could not be replaced at all, or only at an extravagant cost, would clearly come under the former rule. The question would probably arise in the case of houses. Suppose a house, from age or dilapidation, to, be only worth 700/. when burnt, but that it could not be rebuilt at all without an outlay of 1000/., and that the policy was for the latter amount, would the larger or only the lesser sum be recoverable ? I apprehend still the lesser. It might no doubt be argued, that the value of the house was not to be taken at the amount for which it would sell, but at the amount which the owner could make by keeping it ; that this value could only be replaced by putting him again in possession of a house of similar capacity, and that the cost for which this could be done, ought to be the measure of his indemnity. The plain answer seems to be, that the policy is a contract to insure against all loss caused by fire, but not against any loss caused by time, weather, or any other source of dilapidation. The effect of the opposite rule to that for which I contend, would be in the event of fire, to throw upon the insurer the charge of making good all want of repairs by the owner, however culpable ; and all depreciation by lapse of time, however necessary. The insured would step FIRE INSURANCE. '^00 out of an old house into a new one at the expense of the insurer (q). It was assumed all through the American case which I have quoted, that the value should be taken at the time of the destruction, on whatever principles it was to be calculated. But this cannot have much weight, as the policy expressly provided that the loss was to be estimated, " according to the true and actual value of the property at the time the fire shall happen." The analogy of marine insurance seems decisive upon this point. There the well-known rule of deducting one-third new for old, in valuing repairs (see post, Marine Insurance), is based upon this principle. The same has been lately decided in a kindred case, viz., that of a covenant to repair by a tenant. It was held that when the house was burnt down, th6 tenant was entitled to deduct from the full cost of re- building, the increased value which the new premises would have, as compared with the old. The residue only could be recovered in an action for breach of covenant (r). Bailees, who have an interest in goods, such as wharfingers and warehousemen, may insure them to their whole value. Where the property is entirely destroyed, the whole of it interest, must be made good ; and not merely the particular interest of the assured in it. They will be entitled to keep for their own indemnity as much as will cover their interest in the goods ; and they will be trustees of the residue of the money for the absolute owners (s). Insurance by parties having only a partial [(5) The question arose in Ireland in an action on a policy of insurance on the machinery in a mill, and Pennefather, B. , ruling that the plaintiff was not entitled to the full expense of rejJacing new machinery in the mill, said — "The loss is to be estimated by the expense the plaintiff would be at in re- storing the premises to the state in which they were at the time of the fire. But inasmuch as there may be a difficulty or an imijossibility in restoring the premises to the state in which they were, I think it would he a fair criterion to see what would be the expense of ijlacing new machinery, such as was in the mill before, and to deduct from that expense the difference in value between such new mackinery and the old machinery which was destroyed. I think such difference is the actual loss sustained by the plaintiff. " Vance v. Forsier, Irish Circuit Reports, 47 (1841). See also per Chaunell, B., at Nisi Prius, Times Fire Ass. Co. v. Hawke, 28 L. J. Ex. 317 ; 1 F. & F. 406.] (r) Yafes v. D mister, 24 L. J. Ex. 226 ; 11 Exch. 15, S. C. (s) Waters v. Monarch Assurance Co., 5 E. & B. 870; 25 L. J. Q. B. 102 ; [London and N. W. Ry. Co. v. Ghjn, 1 E. & E. 652 ; 28 L. J. 188; and see A'^. British, dc, Insurance Co. v. Moffatt, L. R. 7 Q. B. C. P. 25 ; 41 L. J. C. P. 1. See also as to the insurable interest of tenants from 256 MARINE INSURA^'CE. Expenses of saving property from fire. Collateral loss. No loss of a merely collateral nature can be recovered. Therefore the landlord of an inn who had insured " his interest in the said Sliip Inn and offices," was not allowed to recover a claim for rent paid by him to his landlord, for the hire of other apartments while those damaged in the inn by fire were undergoing repair, or for the loss or damage sustained by him by reason of various persons refusing to go to the Ship Inn whilst the apartments so damaged were undergoing repair. The Court said, as to the last item, that if a party would recover such profits as these, he must insure them as profits (/). It is not settled whether insurers in fire policies arc liable for expenses incurred to save the destruction of the thing insured. Mr. Phillips is of opinion that equitably, and from analogy of general average under a marine policy, the under- writers against fire on land ought to be answerable for the expense of measures taken successfully to save the insured property, for which, had it been lost, they would have been liable to make indemnity (ii). Marine In- In discussing the doctrine of damages in Marine Insurance, surance. -^e Cannot complain of a paucity of decisions. They are as numerous under this head as they were scanty under the two former. One fertile source of debate has arisen out of the right of the insured, in some cases of partial loss, to abandon the subject-matter of insurance to the insurer, and then claim as if the loss had been complete at first. It will be necessary then to examine ; first, when the loss is originally total ; secondly, when it can be made so by abandonment; thirdly, year to year, Simpson v. ScoUish Union Insurance Co., 1 H. & M. 618 ; 32 L. J. Ch. 329 ; and compare A7?;?o v. i\^. American Insurance Co., 1 Sandf., N. Y. 551. There have been decisions in America that a mortgagee who has insured buildings may recover though the mortgaged premises be still ample security for the debt ; Kernochan v. N. York Bvucry Fire Insurance Co., 5 Duer. N. Y. 1 ; affirmed 17 N. Y., 428 (1858) ; or though the mortgagor have rebuilt ; Foster y. Equitable Mutual Fire Insurance Co., 68 Mass. 216 (1854). "Whether the insurers after payment are equitably entitled to an assignment of the mortgage debt has been disputed ; see Kernochan v. N. York Bowirij Fire Insurance Co., sujwa, and Angell on Insurance, s. 59. In England the mortgagor usually insures in the joint names of himself and the mortgagee.] {t) In re Wriijht ft Pole, 1 A. & E. 621 ; [so Mcnzies v. North British In- surance Co., Cases in Court of Sess., N. S. 694 ; Niblo v. A''. American Insurance Co., 1 Sandf., N. Y. 551.] (m) 1 Phill. on Ins. 626, 3rd. ed. MARINE INSURANCE. 251 ■when it is always partial ; and fourthly, how the loss in either case is to be valued. 1. Where the loss is total without abandonment. Loss, total, This takes place where the subject-matter of insurance is donment. utterly destroyed, or lost to the owners by detention, seizure, barratry, and so forth {v). And where there has once been a total loss, as where a vessel and cargo were barratrously taken out of their course by the crew, it makes no difference that part of the property subsequently comes into the hands of the owners, by an act which was not done, nor authorised by them. Such property, however, is salvage for the benefit of the underwriters (w). And it will be equally a total loss though the thing exist in specie ; provided it has lost its character, and has ceased to be of any use to the owners as the thing which it originally was (x), though it possess some value in some inferior form (y). And though after the time of the disaster it still retains, and is saleable under, its original denomination ; still if it is clear that the damage is so great that before the completion of the voyage " the species itself would disappear, and the goods assume a new form, losing all their original character," this is also a total loss. Because the risk does not end till the termination of the voyage, and that which must necessarily end in a total loss at the com- pletion of the voyage, must be treated as a total loss at the time of the accident {z). Though it is a total loss if the goods are in the hands of strangers, not under the control of the assured (a), the seizure of the ship or goods by the lender on a bottomry bond ; or by the Admiralty as a lien for salvage dues, is not such a seizure as can cause a total loss ; as it arises out of the acts of the owner himself, and not out of any of the perils insured against {h). Whether the injury can be repaired or not, will depend on the circumstances of the place, as an accident may be remedied in one port while it (v). Mullett V. Sheddcn, 13 East, 304 ; Mcllish v. Andrews, 15 East, 13. (w) -Dixon V. Reid, 5 B. & A. 597. {x) Dyson v. Eowcroft, 3 B. & P. 474. {y) Camhridcje v. Anderton, 2 B. & C. 691 ; Irvbir/ v. Manniwj, 1 H. L. C. 287. (z) Roux V. Salvador, 3 Biugh. N. C. 266, 278. (a) Ibid , 279. (b) Rosetto V. Gurncy, 11 C. B. 176. 258 MARINE INSURANCE. Constructive total loss, in the case of the ship ; In the case of the cargo. cannot possibly be in another. In the latter case also the loss would be total (c). 2. Constructive total loss is where the thing exists iu specie, and there is a physical possibility of repairing, or preserving it, so as that it may reach the termination of the voyage in its original character. But where this would have to be done at such an extravagant cost, taking all the circumstances of the case into consideration, that the subject-matter of insurance would not be worth the money laid out upon it, this is a constructive total loss (d). The circumstances to be taken into calculation in such a case, if it is the ship that is damaged, will be the possibility and cost of repair in the particular place where the injury has happened, and the means of procuring money (e). Where the loss has happened to goods, the question is, " Whether it was ' practicable,' (in the business sense of the word) (/), to send the whole or any part of the cargo to its destination in a marketable state ? " To determine this question, the jury must ascertain the cost of unshipping the cargo ; the cost of trans-shipping it into a new bottom, (where necessary) ; the costs of drying and ware- housing it ; and the costs of the difference of transit, if it can only be effected at a higher sum than the original rate of freight. Add to these items the salvage allowed in propor- tion to the value of the cargo saved, — and the loss will be total if the aggregate exceed the value of the cargo, when delivered at the port of discharge. But if the aggregate do not so exceed the value of the cargo, or of that part of it saved, the loss will be partial only ((/). (c) Moss V. S7nith, 9 C. B. 102. (d) Read v. Bonham, 3 B. & B. 147 ; Parry v. Alerddn, 9 B. & C. 411 ; Young v. Turing, 2 M. & Gr. 593 ; Moss v. Smith, 9 0. B. 102. [In the case of an exceptional ship, for which there is no demand, the value to sell in the niarket may be much less than the true value ; and it has been suggested that in such a case a more proper criterion will be the price given for the ship when new, with a deduction for wear and tear: y^er Wood, V.-C. ; African Steam Ship Co. v. Swanzy, 2 K. & J. 664 ; 2.5 L. J. Ch. 870 ; Grainger v. Martin, 2 B. & S. 456 ; 31 L. J. Q. B. 186 ; 4 B. & S. 9, in Ex. Ch.] (e) Irving v. Manning, 1 H. L. 287 ; 2 C. B. 784 ; 1 C. B. 168 . [From the estimated cost of raising a submerged ship must be deducted the general average which would be contributed by the cargo : Kemp v. Hallidav, L. R. 1 Q. B. 520 ; 6 B. & S. 757 ; 35 L. J. Q. B. 156, in Ex. Ch.] (/) 9C. B. 103. {g) Rosetto v. Gurney, 11 C. B. 176 Reimer v. Ringrose, 6 Exch. 263 ; {Farnworth v. Hyde, L. R. 2 C. P. 204 36 L. J. C. P. 33, in Ex. Ch.] MARINE INSURANCE, 259 Where the insurance is on the cargo, a mere retardation or interruption of the voyage, even if it amount to a loss of the whole season, is not a ground for abandonment. To justify this there must be an entire loss of the whole adventure, by the destruction, absolute or constructive, of the cargo itself, in consequence of the delay {h). And the utter destruction of the vessel makes no difference, if another can be found before the goods are destroyed by delay (^). There is a loss of freight, either absolutely or constructively, J^^^L^°^Yt l where the ship is either absolutely or constructively unable to proceed on the voyage and earn it (/). But if, where the ship has been injured to such an extent as would have jus- tified the owners in abandoning, the master has not done so, but has repaired, however imprudently, and in fact earned freight, they cannot afterwards abandon on finding that the repairs cost more than the ship and freight were worth (/t). Nor is it any ground to claim as for a total loss of freight, that the expense of repairing the ship would exceed the whole amount of freight, if, taking the value of ship and freight both into consideration, it was prudent to repair. For the contract by the underwriter is, that the ship shall not be pre- vented from earning freight. Not that the freight shall be any profit when earned (/). And it makes no difference, that the cargo was so injured by accident, that the delay and expense of drying and re-shipping was gi-eater than the freight was worth (?»), which comes under the same principle. Nor that the owner, on hearing of an embargo on the ship, abandoned to the underwriter on the ship, who consequently became entitled to the freight, which was actually earned on the removal of the embargo. Because this loss arose from the (A) Anderson v. Wallis, 2 M. & S. 240 ; [Lozano v. Janson, 2 E. &. E. 160 ; 28 L. J. Q. B. 337.] (i) Hunt V. Royal £xchange Assurance Co., 5 M. & S. 47. ij) Green v. Royal Exehanr/e Assurance Co, 6 Taunt. 68; Idle v. Royal Exchange Assurance Co., 8 Taunt. 755 ; [or where the cargo is so damaged as to render it impossible, except at an expense which would greatly exceed it« value on arrival, to carry it to the port of destination ; Michael v. Gillespy, 2 C. B. N. S. 627 ; 26 L. J. C. P. 306.] . (k) Chapman v. Benson, 5 G. B. 330 ; affirmed in H. L. Benson v. Chap, man, 8 C. B. 950 ; 2 H. L. Gas. 696. U) Moss V. Smith, 9 G. B. 102. (m) Mordy v. Jones, 4 B. & C. 394 ; Everth v. Smith, 2 M. k. S. 278. [See, however, Michaelv. Gillespy, supra.] a 2 260 MARINE INSURANCE. given ; voluntary act of the insured, with which and its consequences the underwriters on freight have no concern (w). And so, in a very recent case, where a ship had sustained considerable injuries at sea, and further injury on arriving at the port of destination ; the cargo was, however, delivered to the consignees, who paid the freight. The owners abandoned to the insurers on the ship, who were held to be entitled to the freight, upon which they sued the insurers on the freight ; it was decided that they could not recover (o). Notice of aban- Where a constructive loss is treated as total, immediate donment must be notice of abandonment must be given to the underwriters. Otherwise the owners can only recover as for an average {p); and if they once elect to treat it as a partial loss, they cannot afterwards make it total by abandonment {q). But the fact of a notice of abandonment having been given, which was ineffectual as coming too late, is no bar to their recovering for a total loss, if an absolutely total loss does ultunately arise from the cause upon which the constructive loss was originally based. As where a ship's papers were first taken away by a foreign government, and some months afterwards — as the result of the same act — she was finally seized (?•). In the case of an insurance on freight, however, no aban- donment is necessary, for the simple reason that there is nothing to be abandoned (s). There never can be a total loss of freight, except from the inability of the ship to earn it, and from its having in fact not earned it {t). The ship may either be utterly destroyed, or it may be sold to third parties, or it may be abandoned to the underwriters on the ship itself. In the first case, it can earn no further freight ; in the second case, anything earned by it, after the abandonment, would, of course, belong to the owners; in the third case, to the underwriters (u). except in the case of freight. (n) McCarthy v. Ahel, 5 East, 388. (o) Scottish Marine Assurance Co. v. Turner, 4 H. L. Ca. 312, n. {p) Mitchell V. Edie, 1 T. R. 608 ; Martin v, Crokatl, 14 East, 465 ; Bunt V. Royal Exchange Assurance Co., 5 M. & S. 47 ; Fleming y. Smith, 1 H. L. C. .^13 ; Knvjht v. Faith, 15 Q. B. 649. (5) Fleming v. Smith. (r) Mellish v. Andrews, 15 East, 13. (s) Green v. Royal Exchange Assurance Co., 6 Taunt. 68 ; Mo^int v. Har- rison, 4 Bingh. 388 ; oveiTuling Parmeter v. Todhunter, 1 Camp. 541 ; [and see Potter v. Rankin, L. R. 5 C. P. 341 ; 39 L. J. C. P. 147, in Ex. Ch.] {t) Moss V. Smith, 9 C. B. 94. (u) Case V. Davidson, 5 M. & S. 79 ; affirmed 2 B. & B. 379 ; Sicwarl v. MARINE INSURANCE. 261 The question, when a loss which is not actually total can be Insurance free rendered so by abandonment, becomes of great importance in °,.e^ii^ge™ ^' the case of insurances free of particular ayerage. Of course, nothing can be recovered upon them unless a total loss can be made out. Therefore, where an insurance of this nature was made upon silk, and it became greatly damaged and stunk intolerably, so that it would have been necessary to unship, examine, clean, and dry it : the master sold it where it was. The jury found that he acted as a pradent uninsured owner would have done, but that the silk could at a reasonable and a moderate expense have been so treated as to be sent home as silk. It was held that this could not be made a total loss, and, therefore, nothing could be recovered {v). The principle, however, on which total and partial losses are distinguished is exactly the same, whether the policy admits of particular average or does not («'). [There has been, till lately, some authority for saying that] Total loss of even where the insurance is free from average, if the goods of^Se'^^JJof^^ insured are in separate parcels, as hogsheads of sugar, or bales of silk, there may be a total loss of some, though others ai-e not injured within the terms of the policy {x). One case seems to go beyond this rule. The insurance was on flax, warranted free of particular average. The vessel was wrecked, and part of the flax was saved from the wreck, part floated on shore, but all the packages were broken up. Xo entire package came on shore. This was held to be a total loss as to that part which was never recovered at all (ij). But where a cargo consisted of hogsheads containing loaves of sugar, and the vessel bilged, in consequence of which the greater part of the loaves in each hogshead were washed out, though some remained in each, this was held to be only a partial loss. Greenock Insurance Co. , 2 H. L. C. 159. [Where goods and ship belong to the same owners, and there is no pending freight, the underwriters on ship are entitled to compensation for the carriage of the goods in the ship subsequent to the casualty ; Miller v. WoodfaU, 8 E. & B. 493 ; 27 L. J. Q. B. 120. The underwriters are not entitled to freight earned by another ship into which the goods are transferred ; Hiclcie v. Rodocanachi, 4 H. & N. 455 ; 28 L. J. Ex. 273.] {v) Navone v. Ilacldon, 9 C. C. 30. {w) Roux V. Salvador, 3 B. N. G. 277. {x) Lewis V. Rucker, 2 Burr. 1170. (y) Davy v. Milford, 15 East, 559. 262 MARINE INSURANCE. The Court distinguished it from the preceding case, on the ground that there was a clear line to be taken ; for some of the bundles of flax never came ashore {z). But the decision of Davy v. 3IU/ord did not turn upon that point at all, but upon the simple fact that some of the flax had never been recovered, and, therefore, had been completely lost. No distinction was taken between the flax in bundles, which were wholly lost, and that in bundles which were only partially lost. Indeed the distinction would have been impossible ; for as the bundles were all broken up, there was no mode of ascertaining which were wholly, and which were only partially, destroyed. Perhaps, this is the real point of difference between Dav}/ v. 3Iilford and Hedhurg v. Pearson. In both, there was a total loss of part of the property, which gave the insured a prima fade claim for reimbursement ; but in the latter instance the insurer was able to bring the loss within the exception of the policy, which in the former he could not. Davy v. Milford seems to have been [for a long time] rather a stumbling-block to the Bench. In a later instance [a), Lord Abinger is made to distinguish it on the ground, that " it was a policy of in- surance upon sugar, where each hogshead was separately valued and insured ; and therefore, a loss of one was properly held to be a total loss of that hogshead." All of which is mere fiction. Ralli V. Jansov. [And at last the Court of Exchequer Chamber, in Ralli v. Janson {b), elaborately reviewed the case of Davy v. Milford^ and the distinctions attempted to be taken between it and sub- sequent cases, and declared that the decision in Davy\.Milfurd did not in reality proceed upon the fact of the goods having been shipped in packages, but was intended to be and was a decision that the warranty "free of particular average" did not extend to a case of total loss of a part of the subject-matter insured, which had sunk to the bottom of the sea, and thereby ceased to exist : a proposition which as applicable to the case of shipment in bulk was at variance with later decisions, and (2) Hedhurg v. Pearson, 7 Taunt. 154. (ft) Bills V. London Assurance Corporation, 5 M. Sc W. 576. [(h) Ralli V. Janson, 6 E. & B. 422 ; S. C. nom. Janson v. Ealli, 25 L. J. Q. ]i. 300. The law is the same in the United States, 2 Pliillips on Insurance, s. 1773, p. 459, 3r(l ed. See as to what constitutes a separate insurance on eacli package, Entwisle v. Ellis, 2 H. & N. 549 ; 27 L. J. Ex. 105. J MARINE INSURANCE. 263 could not be maintained. After tlius overruling Davy v. Milford, the law was laid down to be that " where memorandum goods of the same species are shipped, whether in bulk or in packages not expressed by distinct valuation or otherwise in the policy to be separately insured, and there is no general average and no stranding, the ordinary memorandum exempts the under- writers from liability for a total loss or destruction of part only, though consisting of one or more entire package or packages, and though such package or packages be entirely destroyed, or otherwise lost by the specified perils." In RalU V. Jcmson, the Court expressly declined to say what the consequence would be, if the goods were not all of the same species. Two cases have since decided that where articles of different nature and kind are insured under a general de- scription, the underwriters may be liable for a total loss of some of the articles, though the rest are preserved. In the first, the insurance was by the master of a vessel on " master's eflPects warranted free from all average." He saved his chronometer and a few other things, but the rest were totally lost. He was l)cld entitled to recover the value of the articles lost. The word " effects " was considered to have been employed to save the task of enumerating the nautical instruments, chrono- meter, clothes, books, and other things of which they happened to consist (c). In the other case, the insurance was on "goods" valued at a certain sum, and the insured put on board an emigrant's equipment (c/).] 3. The preceding remarks have necessarily involved a Total loss statement of the cases in which only a partial loss can be Jj.JJS claimed. It is only important to add that a total loss may be changed into a partial one by matter subsequent ; as where a total loss has occurred by capture, or in case of freight by embargo, which by recapture or removal of the embargo has been changed into a partial loss, in consequence of salvage and other charges ; unless the ship, by reason of the capture and resulting loss and charge, is so valueless as, per se, to justify abandonment {e). And it makes no difference that [(c) DuffY. Mackenzie, 3 C. V,. N. S. 16 ; 20 L. J. C. P. 313.] [(d) Wilkinson V. Hyde, 3. C. B. N. S. 30 ; 27 L. J. C. 1\ llC] (e) Hamillon v. Mcndcs, 2 Burr. 1198. [To cliaiigc the total loss into a partial loss tlio ship or goods must not only exist, but the circumstances must 264 MARINE INSURANCE. Value may be agreed before- hand. Amount reco- vered on otlier policies must b( deducted. notice of abandonment was given, before the circumstances which turned it from a total into a partial loss were ascer- tained (/). Even though at that time nothing had occurred to alter the character of the loss {g) ; nor even that the aban- donment has been accepted by the insurers (Ji). 4. The character of the loss being settled, the next thing is to ascertain, the value of the thing lost, which may be done either by evidence after the loss, or by the previous agreement of the parties. For a policy of insurance is not a perfect contract of indemnity. It must be taken with this qualifica- tion, that the parties may agree beforehand in determining the value of the subject insured by way of liquidated damages, as indeed they may in every other contract to indemnify (/). Therefore, when an insurance was made upon a ship, valued at 17,500/., and she suffered damage to her rigging and machinery in a storm, which could not be repaired for less than 10,500/., after which the ship would only have been worth 9000?. ; no injury was done to her hull. The assured were allowed to abandon and recover the whole sum (/.;). [But the contract being one of indemnity, and both parties being bound by the agreed value, an assured who has re- covered under other policies can only recover the difference between the amount so received and the agreed value in the policy (/).] Where there has been a total loss on all the goods, if the policy is a valued one, the price fixed must be taken (m), [but a deduction must be made if part of the cargo has been landed (/t).] Where the policy is open, the value of the goods be such that the assured may reasonably be expected to take possession ; Holds- worth V. Wise, 7 B. & C. at p. 799 ; Lozano v. Janson, 2 E. & E. 160 ; 28 L. J. Q. B. 337.] (/) Bainhridge v. Neilson, 10 East, 329. (g) Patterson v. Ritchie, 4 M. & S. 393 ; Brothcrston v. Barher, 5 M. & S. 418. (h) McCarthy v. Ahel, 5 East, 388. [i) Per Patteson, J., Irving v. Manning, 1 H. L. C. 287 ; 6 C. B. 391 ; affirming S. C, 1 C. B. 168 ; 2 C. B. 784. (fc) Irving Y. Manning, supra ; Allen v. Sugriie, 8 B. & C. 561. [{/) Bruce v. Jones, 1 11. & C. 769 ; 32 L. J. Ex. 132.] (m) Lewis v. Ruder, 2 Burr. 1171 ; Irving v. Manning, 1 C. B. 168 ; 2 C. B. 784 ; 6 G. B. 391. [(h) Tohin V. Harford, 13 C. B. N. S. 791 ; 32 L. J. C. P. 134 ; affirmed in Ex. Ch. 17 C. B. N. S. 528 ; 34 L. J. C. P. 37. So in America ; Brouk v. Louisiana Insurance Co., 4 Martin, N. S. 640, 681.] MARINE INSURANCE. 265 Valuation of freitrht. is fixed by taking their invoice price at the port of lading, Modes of valuing .„ .. ,. /\Ai goods on open including premium of commission and insurance (o). And, ^^^^y^^^^ perhaps, a payment made on the shipment of goods, as the price of the privilege of putting them on board, may be added to their value. But payments made for port charges, and other incidental expenses at the loading port, by virtue of a charter- party of which the insurers had no knowledge, cannot be so added (p). Where the insurance is on freight, and tlie policy is open, which rarely happens, the usage, sanctioned by decision, is to adjust the payment on the gross amount of freight payable, and not on the net amount after paying expenses (q). There may be a total loss of part of the freight, if the ship is so damaged that she either cannot absolutely, or cannot without extravagant cost, be repaired so as to bring home that part. But in estimating this, the cost must be calcu- lated with reference to the entire value of ship and freight, not to the value of the freight only (r). In such a case, of course, an aliquot amount of the gross freight is the measure of damage. In all cases of constructive total loss, whether of ship, Salvage. goods, or freight, the insurer is entitled to the benefit of all that is made out of the subject-matter after the injury, as salvage (s). The net salvage is that which remains after the expense of saving it, which must therefore be made good to the owner by the underwriters who benefit by it, in their respective pro- portions (/). Where there is a policy of insurance on the freight of a specific cargo, if the captain, being driven back and unable to proceed with the original cargo, was yet able to proceed with a (o) Usher V. Noble, 12 East, 639. (p) Winter v. Ifahlimand, 2 E. & Ad. 649. (fj) Palmer v. Bluckbimi, 1 Bingh. 61. (r) Moss V. Umith, 9 C. B. 104, 108. (s) Roux V. Salvador, 3 B. N. G. 281, 288 ; Green v. Royal Exclianoe Assurance Co., 6 Taunt. 72 [Upon the same principle, underwriters who have paid the value stated in the policy upon a ship sunk throuj^h collision, as for a total loss, are entitled to the damages recovered from the owners of the other ship, which arc in the nature of salvage; North of Emjl and Insnranre Association v. Armsironr/, L. 11. 5 Q. B. 244.] {t) Sharp V. Gladstone, 7 East, 24. 26Q MARINE INSURANCE. less cargo, on less freight, the underwriters are entitled to the benefit of this (u). Valuation Where the loss is partial in the case of a ship, the question of partial loss jg^ ^0 what extent has she been injured by the accident? *° '^'"P- What was her difference in ralue before and after it ? An obvious mode of ascertaining this is, by finding out what has been properly and prudently incurred in repairing the damage {v). If, however, the ship has been sold without repairs, under circumstances which do not entitle the owner to claim for a total loss, no allowance can be made for repairs which have not been effected, unless the ship sold for less in consequence of not being repaired. If she did, such difference of price would be the result of the peril insured, and of this difference the cost of repairs would be the measure. A ship met with a collision, returned to port, and was repaired. On setting out again it was discovered that she still leaked, and she returned again, and was again examined, and for that purpose stripped of her lower strake of wales. In consequence of the misconduct of the surveyors in not replacing her wales, her lower timbers decayed so rapidly by heat and rain, that it finally became useless to repair her, and she was sold to be broken up. This, of course, could not be claimed for as a total loss, the proximate cause of the injury not being a peril insured against. The plaintiff, however, claimed to recover what would have been the cost of replacing the wales (which had not been replaced) as a partial loss. Held, that if he could have shown that he was about to refit the vessel to put her into the state of a sailing ship, and that he meant to sell her as a sailing ship, that would have been one of the expenses which he might have insisted on. His measure of damage would then have been the expense of replacing the wales, or the difference in value between the ship so dismantled of her w'ales, and the ship with the wales put up again. But as she was sold avowedly to be broken up, and as for that purpose she would have fetched no more if the repairs had been exe- cuted, no allowance could be made on account of them (x). New for old. As, howcvcr, it would be unfair that the underwriters should (u) Green v. Royal Exchange Assurance Co., 6 Taunt. G8, 72. (??) Steicart v. Steele, 5 See. N. R. 927. (x) Stewart v. Steele, 5 Sco. N. R. 927. MARINE INSURANCE. 267 pay the entire costs of repairs, while the owner is put in a better position than before by the substitution of new materials for old, a usage of subtracting one-third of the cost on this account has sprung up {ij). The rule, however, extends no further than the reason for it, and therefore where the owner has derived no benefit, as where the vessel was on her first voyage (s), or where the ship has never come into the owner's hands, being either sold or broken up («), no such reduction is made. Where there has been a partial loss upon goods, if the policy is Valuation of valued, the rule is as follows. As the price which the goods would p^^^^J ^°^« *° have fetched, if sound, at the port of delivery, is to [the differ- ence between that price and] the price which they do fetch being damaged, so is the value in the policy to the amount payable as loss. And it makes no difference that if they had not been damaged, they could have been kept and realised a much larger sum afterwards {b). Where the policy is not valued, the rule is still the same, substituting "the invoice price plus premium of insurance and commission," for " the value in the policy " (c). The object and effect of the rule in either case is the same, viz., to indemnify the assured without injustice to the insurer. The diminution in value is calculated by the relative price of sound and damaged goods at the port of delivery, where they would have to be sold ; because it is their price there which alone can determuie the ratio of loss. But the value in the policy, or the invoice price, is taken as the standard upon which payment is to be made ; because otherwise the loss to the insurer would depend upon something against which he has not insured, viz., the rise or fall of the market. There can only be a partial loss of freight, as distinguished partial loss of from a total loss of part of the freight, by reason of expenses ^"^^^s^^*^- incurred in preserving it {d)-, these, of course, create no diffi- culty in estimating. A shipowner on an insurance of freight, {y) Poingdestre v. Royal Exchange Assurance Co., R. & Mood. 378. (z) Fenwick v. RoUnson, 3 C. & P. 323 ; Pirie v. Steele, 8 C. & P. 200, [If the policy provides that the deduction shall not be made until the ship is of a certain age, but shall be made after that date, it becomes immaterial whether the first voyage has or has not been completed ; Byrne v. Mercantile Insurance Co., 4 H. & C. 506.] (a) Da Costa v. Ncwnhum, 2 T. R. 407 ; Stewart v. Steele, ubi siip. (6) Lewis V. Rucher, 2 Burr. 1167. (c) Usher v. Nohle, 12 East, 646 ; Waldron v. Coomhe, 3 Taunt. 162, (d) Moss V. Smith, 9 C. B. 103. 253 MARTSE IXSIIRA>fCE. mav recoTer for the profits wMch ke would have made bv cany- Whis own goods: for these profits are of the same nature, whether he carries his own goods or those of another {e). The extent of damages to which the imderwriters are liable may sometimes be yery difficult to ascertain ; as, for instance, where a certain iujuiy has happened from a caose insured against, and afterwards a fresh injury, which is not insured against occurs, and no examination has taken place in the meantime ; the case, howerer, must still be left to the jury, and the apparent impDSsibility of arriving at a conclusion is no ground for directing nominal damages (/). Cbarses It seems by no means settled whether payments and charges - ' ^ -^ incurred for the preservation of the vessel, cargo, and freight, _. ..... are rec-overable as average loss, or under the clause for " suing, labouring, and travailing"' (g). Such expenses can be re- covered, thotigh incurred t-efore a total loss arising from a cause for which the insurers are not liable {h) ; and though they make the total amount greater than the subscription of the tmderwriier (i). We have seen that two-thirds only of those incnrred in repairing the vessel can under certain cir- cimistances be set up {i). The charge for provisions and wages, where a ship is detained by an embargo, fall npon the owner, and are borne by the freight (/) ; these, therefore, are not recoverable fr«3m the insurer of the ship (/«) nnless it has been abandon&i to him, and then as he stands in the place of the owner, he must bear them (n). : A claim against the insurers may also arise out of any con- triburion, which the insured has been forced to make, in respect of an average loss. They are not botmd, however, to '" reimburse to him the : ion, but only that proportion of it - :_. ._....ii as insured (e) Flat T. Flevivno, 1 B. 4; Ad. 45. (J) Hare v. Tra^-i, 7 B. 4 C. 14 ; Kniaki t Faiik. 1-5 Q. B. 670. Q) Lv: ' .12 Eass, 64S : Z« C" .' irvyn. 4 Tannt. aSO ; St- -:, 5 Sm. 5. B. &27, :. •.pmion seems zather to ^-. .._. ^i Costa t. SnrK.ha'^'.. _ .. ... - '. ... iaTour of the forme-. \k) Line t. JajuotL, 12 East. 64S. (it Z« Cke»ijia%t t. Peanon, 4 Taont. 367. (B A nte, p. 26o. (0 Da Co^a t. XexTiham, 2 T. B. 414. {m; RoberU-jn t. Eicer, 1 T. K 127. {n p; "!'-.':-» v. Rjy-crrjft, 4 East, 34. GEKEKAL AYEKAGE. 269 bears to its value as estimated for the purposes of contribu- tion : or to put the same thing in another way, the owner of the goods (as one of the parties to the contribution) has to pay in contribution (suppose) 10 per cent, on their contri- butory value ; but the underwriter has only to pay to the owner of the goods (as his assured) 10 per cent, on their value in the policy. Therefore, if the contributory value of the goods be 1500?., and they are only insured for 500Z., the owner will have to pay 1507. contribution, but he can only recover bOl. of this from the insurer (o). Where the adjustment of the average loss has been settled How far bound in a foreign port, on principles different from those which |jy foreign would have been acted upon in England, the underwriter is bound by such adjustment, when rightly settled according to the laws and usages of the place where it is made, and could have been enforced (p). But in the absence of clear proof that the usage of the country is such, the underwriter is not bound, unless the loss would be an average one in the country where the policy is made ; and the mere recital of the law on the face of the foreign decree, assuming the supposed usage as its foundation, is not proof enough (q). As to interest under stat. 3 & 4 W. lY. c. 42, see ante, Interest. Tit. Interest (r). Independently of this statute, interest cannot be recovered as a matter of right (s). III. It now remains to give a brief sketch of the doctrine General arerage. of General Average, so far as it is connected with the question of damages. A general average loss is defined to be a loss arising out of extraordinary sacrifices voluntarily made, or extraordinary expenses necessarily incurred, for the joint benefit of ship and cargo. Where such a loss has taken place in a sea adventure, all the parties engaged in it are bound to make good the loss incurred by one or more of their co-adventurers, by reason of such sacrifice or expense (/). (o) 2 Arnonld Ins. 9.50. [S17, 4th ed.] (p) Walpole v. Eicer, Park Ins. S9S, 8th ed. ; Nercman t. Cazalet, ibid., 900, 8th ed. ; see the Anierican cases, 2 PhiU. 165. (q) Power v. }yUtmore, 4 M. & S. 141 ; 2 Am. 946. [814, 4th ed.] (»•) Ante, pp. Ill, 112. (s) Kingston r. M'liUo-^h, 1 Camp. 518. (0 Am. 877. [794, 4th ed.] [As to what operations are for joint benefit of ship and cargo, see Job v. Langton, 6 E. & B. 779 ; 26 L. J. Q. B. 97 ; Moran t. contribution. 270 GENERAL AVERAGE. It does not come within the scope of this work to examine the cases in which this claim arises, nor to enquire when the loss may be subject of contribution, and wlicn it must be borne by the shipowner. These questions fall strictly within the law of shipping and insurance, and will be found amply discussed in every treatise upon the point. Supposing, how- ever, a claim for general average contribution to be esta- blished, it will then be necessary, with a view to damages, to ascertain, First, what is the fund from which contribution is to be made ; Second, what are the principles upon which that contribution is to be calcuL^ted. These two heads will esta- blish the amount of contribution to which the party suffering is entitled. Sources of 1. The ship and freight always contribute {u). And all goods carried for traffic, whether they pay ft-eight or not, and whether they belong to merchants, passengers, owners, or masters {x). And such goods pay according to value not weight ; for the contribution is made not on account of the incumbrance to the ship, but of the safety obtained. There- fore, in this country bulhon and jewels contribute according to their full value (y). But gold or silver, jewels, precious stones, or other articles of value, do not contribute when carried about the person, or forming part of the wearing apparel, nor does the luggage of passengers (2). Deck goods contribute, though they are in general not contributed for (a). Provisions and warlike stores do not contribute (b), altiiough if cast overboard their amount is refunded. The reason of this is stated to be, that these articles themselves arc tiic means of preserving and benefiting the w'hole. But this reason might with equal propriety be applied to all the ship's furniture. The true reason appears to be, that provisions, being destined to be consumed during the voyage, belong to wear and tear. The exception, however, only extends to wJiat Jones, 7 E. & B. 523 ; 26 L. J. Q. B. 187 ; Kemp v. IlaUiday, 6 B. & S. 723 ; L. R. 1 Q. B. 520 ; 35 L. J. Q. B 156 ; lla/zAur v. Mavrojani, L. R. 5 Ex. 116 ; 39 L. J. Ex. 81, iu Ex. Ch.] (u) Abbott Sbip., Sth ed. 503. [549, 11th ed.] (x) Abbott Ship. 502. [549, 11th ed.] Brown v. Stapyleton, 4 Binijh. 119. (7/) Abb. uhi sup. ; 1 Magens, 62, 63. (s) Aru. 919. [792, 4th ed.] Al)b. 503. [549, 11th ed.] (a) Stevens, 210 ; (Am. ed. Phill. ;) Am. 919, [792, 4th ed.] (6) Brownv. Stapyleton, 4 Bingh. 119. GENERAL AVERAGE. .271 is meant to be used during the passage, and not to such pro- visions as may be shipped on freight (c). Goods carried by mariners on their own account contribute, unless perhaps when the permission of carrying a certain quantity is granted to them in lieu of wages {d ). Mariners do not contribute fur their wages, except in the single instance of the ransom of the ship. In that case they are required to contribute, in order to encourage resistance (e). Ransom is now prohibited by statute (/), but only in the case of enemies. It is still lawful when the vessel has fallen into the hands of pirates or other plunderers (g). That Avhich has been sacrificed contributes, in general Things sacrificed average, equally with that which has been saved. Otherwise the owner, receiving their total value, would suffer no loss by the sacrifice, while the other owners would. Not only goods jettisoned, but those which have been sold for the benefit of ship and cargo, contribute, for they are equally contributed for ; and the same is the rule as to the freight, which would have been payable in respect of them ; for it is also contributed for, and must therefore take its share in the entire loss {h). NothinR- of course contributes which has not been exposed f>nly property ° . 1 -I exposed to risk to the risk ; because if it was never placed m jeopardy, it was contributes. not saved by the loss, and cannot be liable to make it good. Therefore, neither goods landed, nor sold for the necessities of the ship before jettison, nor those taken on board afterwards, contribute («). Nor do goods which have been jettisoned themselves contribute for any subsequent disaster, nor does the owner of goods jettisoned, who recovers them after a second jettison, contribute towards such subsequent loss {k). Freight, in order to be contributory at all, must have been ^^'^is.'jt '^''^^n pending at the time of the sacrifice. If the cargo, or part of °°" " ^ ^^^' it, has been delivered before the average loss, the freight due (c) Benecke, 307. (d) Benecke, 308. (e) Abb. 504 ; [550, 11th ed.] ; Benecke, 308. (/) 22 G. III. c. 25 ; 43 G. III. c. IGO, ss. 34, 35 ; 45 G. III. c. 72, ss. 16, 17. {(/) Arn. 916; [790, 4th ed.] (h) Am. 918 ; [792, 4th ed.] ; Stevens, Av. 61, 6th ed. ; Abb. 505 ; [552, 11th ed.] (i) Arn. 917; [791, 4th ed.] (k) Am. 918 ; Benecke, 182 ; [But see Arn. 791, 4th ed., where the modem practice is stated to be diiFerent.] 272 GENEKAL AVERAGE. in respect of it does not contribute, nor docs freight paid in advance (/)• Where a ship was chartered for an entire voyage out and home, under a stipulation that no fi-eight \vas to be paid for the home voyage, unless both were performed safely, and a general average loss occurred on the out voyage ; it was held that the freight home should contribute, on the ground that it was one entire sum {m). But this decision has been doubted by Benecke (w), who thinks that the freight ought to have been apiDortioned with a view to contribution, and that each voyage should bear its own loss (o). Valuation of H. The principles upon which the contribution is to be *'^^' made must depend upon two points : First, the mode of estimating the loss incurred ; secondly, that of estimating the value of the property saved. of goods. 1. As to goods ; this will depend upon the place where the adjustment is effected. If at the port of starting, the value will be the price of the goods, increased by the shipping charges and insurance, if the goods cannot be replaced (p). If they can be replaced, their cost price and charges without insurance, which will be saved (very avowant, and HenryMll. every person who makes avowry or cognisance, or justifies as bailiff in any replegiare or second deliverance for any rent, custom, or service, or for damage feasant upon any distress taken in any land or tenement ; if the avowry, &c., be found for him, or the plaintiff be nonsuited, or otherwise barred, shall recover his damages and costs that he has sustained, as the plaintiff should have done if he had recovered. x\n executor who avows or makes cognisance under the pro- visions of 32 Hen. VIII. c. 37, may recover damages under the [(^•) Money can now be paid into court by a plaintiff in replevin, in answer to an avowi-y ; C. L. P. Act, 1860, 23 & 24 Vict. c. 126, s. 23.] (I) Chit. Prac. 1030, 9th ed., Archb. Prac. (1853) 335. It is doubtful whether special damages arising from an injury to the goods by defendant or otherwise, can be recovered ; Convor v. Btntlcy, 1 Jebb & Sy. Ir. Rep. 246. [See OgnelVs case, 3 Leon. 213 ; Atkinson v. Neshitt, 9 Ir. L. R. 271, and cases cited thei"e.] [(m) 19 & 20 Vict. c. 108, Schedule C. ; Chitty's Arch. Pr. 1092, 12th ed. By s. 71, a deposit may be made instead of security being given. This statute is extended to all cases of replevin by 23 & 24 Vict. c. 126, s. 22.] {n) Chit. Forms, 584, 7th ed. ; Tidd, Forms, 607. 320 REPLEVIN. above clauses (o); but they do not apply where the defendant avows, &c., for any amercement by a Court Leet or Court Baron (|;) ; nor where the defendant pleads property in the thing distrained {q). By statute By 17 Car. II. c. 7, s. 2, where in replevin for arrears of rent, ^^'■" "• the plaintiff shall be nonsuit before issue joined, the defendant is to make a suggestion in the nature of an avowry or cognis- ance, upon which a writ of inquiry is to issue ; and a similar writ is to be awarded where the defendant has judgment on demurrer, s. 3 ; and the jury are to inquire the value of the goods, or cattle distrained, and the rent in arrear. Upon the return of the writ, defendant is to have judgment to recover the arrears of rent, if the goods, &c., amount to that sura ; and if not, then the value of such goods, &c., with his full costs of suit. Where the plaintiff is nonsuit after issue joined, or if the verdict shall be against the plaintiff, then the jury who are empannelled must make the same inquiry. And if they omit to do so, no other jury can (r). But the defendant is under no obligation to proceed by this statute ; therefore, in such a case, the defendant may enter up judgment de retorno habendo at Common Law, even after error brought (s) ; and where the jury found the amount of damages and costs, but not the value of the distress or the rent in arrear, it was held that it might be taken to be a good judgment under stat. 21 Hen. VIII. c. 19, s. 3 (/)• Replevin for Stat. 43 Eliz. c. 2, s. 19, enacts, that where goods seized poor rates. under a distress for poor rates are replevied, and the issue is found for the defendant, or the plaintiff is nonsuit after appearance, the defendant sliall recover treble damages. Treble damages, under this act, are three times the amount of the charges incurred in respect of the distress ; but not three times the amount of the sum distrained for also. Therefore, where the plaintiff had failed to proceed with his writ, he was held liable to the sum due, and tlirce times the broker's charges {u). {()) Farnell v. Keicjhtley, 2 Roll. Rep. 457. {■p) Porter V. Gray; Cro. Eliz. 301 ; Samuel v. Iloder, Cvo. Jac. 520. iq) Hard. 153. (r) Sheufie v. Culpeper, 1 Lev. 255 ; Jlcrhert v. Walters, 1 Ld. Raym. 59 ; Kyvaslon v. Mayor of Shrewsbury, 2 Str. 1052. \s) Rees v. Morgan, 3 T. R. 349. (t) Gamun v. Jones, 4 T. R. 509. {u) Newman v. Bernard, 10 Bingh. 274. ILLEGAL DISTRESS. 321 Y. Illegal distress. The damages in suits of this nature depend greatly upon the form in which the action may be brought. Where the defen- dant can be treated as a trespasser ah initio, so as to make his possession of the goods wholly wrongful, their entire value will be recoverable. "When it is necessary to sue for conse- quential damage, the plaintiff can only obtain damages for the special injury he has suffered, which may be very slight, where he was really in fault, and liable to a seizure of his goods. The action must always be for consequential damages where Form of action any irregularity has been committed in distraining for rent. "^^^'"^ ^'^ i^regu- This is enacted by 11 Geo. II. c. 19, s. 19, which, after reciting commiScur that some irregularity is occasionally committed, for which the distraining for party distraining is deemed a trespasser al initio, and the plain- ^^^ " tiff has been entitled to recover the full value of the rent for which the distress was taken, provides, that where any distress shall be made for any rent justly due, and any irregularity or unlawful act shall be afterwards done by the party distraining, or his agent, the distress shall not therefore be deemed unlaw- ful, nor the persons making it trespassers ab initio ; but the parties aggrieved shall recover full satisfaction for the special damage they shall have sustained, and no more, in an action of trespass, or on the case, at the election of the plaintiff. And no tenant shall recover in an action [for any such unlawful act or irregularity], if tender of amends have been made before action brought {x). [It was for some time assumed that under this section a plaintiff might always recover nominal damages for an irregu- larity, but it is now settled that the plaintiff can only recover where actual damage is proved (?/).] The following are the principal species of irregularity for which actions may be brought : Actions for excessive distress arise out of the statute 52 Action for an Hen. III. c. 4 (s), which provides that distresses shall be excessive dis- reasonable and not too great. And they that take great and (x) Ibid., s. 20. [(y) Rodgers v. Parher, IS C. B 112; 25 L. J. C. P. 220: Luas\ Tarleton, 3 H. & N. 116 ; 27 L- J. Ex. 246.] (z) Proba'uly the action would lie even independently, for Lord Coke says of this statute, it agreeth with the reason of the common law. 2 Inst, 107 1 M & W. 4i7. 222 ILLEGAL DISTEESS. unreasonable distresses shall be grievously amerced for the excess of such distresses. And such actions must always be iu case (a). Damages for an excessive distress, where the goods have been sold, will depend upon the loss and incon- venience the plaintiff has been put to by having an unnecessary amount of his goods taken from him. If the amount for which they sold, beyond the claim against him, has not been returned to him, of course it will form part of the damages (&). In order to estimate whether the amount taken was excessive or not, their value must be calculated according to the sum whicli they would fetch at a broker's sale, not at the price which could be obtained for them from an incoming tenant in the same line of business as the plaintiff (c), because the former is their value for the purpose of satisfying the defendant's demand. Where, however, the declaration makes no mention of a sale, either as special damage, or by way of substautive complaint, damages can only be recovered in respect of tlie detention up to the time they were sold, and not in respect of the sale itself (d). [In a recent case, in which there had been no sale and no actual damage was shown to have been sustained, the Court of Exchequer were of opinion that in every case of excessive distress there must be some loss or inconvenience for which a jury ought to be told that they must find some damages either nominal or substantial (e).] On the other hand, when the distress is so excessive on the face of it, that some of the things must be supposed to have been taken without shadow of claim, as where 6 oz. of gold and 100 oz. of silver were taken for a debt of 6s. 8d., trespass will lie (/). No action at all is maintainable for distraining for more rent than is due, provided the distress is not excessive as to that which is due ; and an assertion that the distress was (a) Woodcraft v. Thompson, 3 Lev. 48 ; Lynne v. Moody, 2 Stra. 851 . [_Huyhes v. Broimie, 7 Ii'. L. 492.] {b) See per Parke, B., 1 ]\L & W. 448. (c) Wdls V. Moody, 7 C. & P. 59. [The price realised at the sale is not a conclusive test of the value ; Smith v. Ashforih, 29 L. J. Ex. 259. There sub- stantial damages were recovered, though the sale did not realise the rent due.] (d) Thompson v. Wood, 4 Q. B. 493. [(c) Chandler v. Doidton, 3 H. & C. 553; 34 L. J. Ex. S9.] (/) Huichins v. Chambers, 1 Burr. 579 : Crowther v. Ramsbottom, 7 T.ll. «58. ' ILLEGAL DISTRESS. 323 made maliciously, will not render a count to that effect good ( g). By s. 3 of 2 W. & M. sess. 1, c. 5, s. 3, loose corn or Ray may be Irregularity in distrained for rent, but it cannot be removed from the land till orhay°or°giw- it is either replevied, or sold in default of replevying. ing crops. By 11 Geo. II. c. 19, s. 8, growing crops may be seized for arrears, and cut, cured, and laid up when ripe in barns, &c., upon the premises, and appraised or sold in the same manner as other goods or chattels ; and the appraisement to be taken when cut, gathered, cm*ed, and made, and not before. Tender of rent in arrear, and cost and charges of making distress, and which shall have been occasioned thereby, at any time before corn, &c., is ripe, cut, and cured, to put an end to distress (h). Where there has been an excessive distress by taking corn or hay loose (under 2 W. & M. sess. 1, c. 5, s. 3), or growing crops (under 11 Geo. II. c. 19), the measure of damage is not the full value of the crops, beyond the amount which ought to have been taken, because the tenant is not ultimately deprived of them. It is simply such a sum as is a compensa- tion for the additional expense of a distress, and of keeping possession of that part of the crops which it was unnecessary to take during the time of possession ; and some compensa- tion for the loss of absolute ownership, and power of dispo- sition for the same time ; or if the tenant has replevied, then a compensation for the additional expense and inconvenience of replevying to a larger amount. If moveables have been distrained on along with growing crops, the probable value of the latter cannot be taken as a present satisfaction of the rent to that amount, so as to make the landlord a wrong- doer, by taking and selling all, or, as the case may be, the excess of moveable chattels, and liable for their value. He has a right to apply those which are immediately productive in satisfaction of the rent pro tanto, and hold a reasonable {g) Tancred v. Leyland, 16 Q. B. 669 ; [Glynn v. Thomas, 11 Ex. 870 ; 25 L. J. Ex. 125 ;] Stevenson v. Neivnham, 13 G. B. 285 ; 22 L. J. C. P. 110; overruling Taylor v. Henniker, 12 A. & E. 488. [It is settled law tliat a distrainor may justify for any cause wliich existed at the time, although he set up a different one ; Phillips v. Whitsed, 2 E. & E. 804 ; 29 L. J. Q. B. 164.1 (h) Ilnd., s. 9. 324 ILLEGAL DISTRESS. part of the present UDproductive fund as a security for the balance («). In one case arising out of the latter statute, it was decided that a sale of growing crops was wholly void unless the pro- visions of the act were complied with ; and that no action could be maintained for consequential loss arising from a premature sale, since it was such a nullity that no legal damage could be sustained from it (Jc). This decision, however, is opposed to a later one where a similar question arose. A landlord seized growing crops under a distress for rent, and sold them before they were cut, contrary to the statute. They were afterwards cut and carried away by the purchaser. It appeared that they sold for the full amount they would have fetched, if sold at the proper time ; and that rent to an amount greater than their value was due. Nominal damages only were given. Lord Lyndhurst, C. B., said, "By the terms of the Act, the party injured by an unlawful act, com- mitted after a lawful distress, is only to recover to the amount of the damage he has actually sustained." Bayley, B., asked " What damage is the plaintiflF entitled to ? Why, the differ- ence between the amount for which the crops would have sold, if the sale had been regular, and that which they actually sold for"(Z). [The form of the rule in this case merely rendered it necessary for the Court to decide that the plaintiff was not entitled to more than nominal damages, but the grounds of decision would have justified a verdict for the defendant; and it has since been decided, in a similar case, that where the plaintiff" fails to prove special damage he is not entitled to nominal damages, but the defendant is entitled to the verdict (m).] Helling without At Commou Law the distrainor could not sell the property appraisement. ggj^ed, but by 2 W. & M. sess. 1, c. 5, s. 2, where goods are distrained for rent, and the tenant or owner of the goods shall not, within five days next after such distress taken, and notice thereof (with the cause of such taking), replevy the same, then after such distress and notice and expiration of five days, i'P) Per Parke, B., Pi) Bod V. Monger, 6 Mod, 215. (p) Hm-vey v. Pococlc, 11 M & "W. 740. [(q) This statute applies to the sheep of an undertenant of the landlord's tenant. Cart colts and j'oung steers not broken in or used for harness or the plough, are not -nithin it as Leasts which gain the land : Keen v. Priest, 4 H. & N. 236 ; 28 L. J. Ex. 157.] (>•) 1 Inst. 47, a; Simpson v. ffartopp, Willes, 512. ILLEGAL DISTRESS. 329 mediately available by sale, and is not bound to take those which cannot be productive till a future period (s). Statute 17 Geo. II. c. 38, s. 8, contains provisions similar to those of 11 Geo. II. c. 19, ss. 19 & 20, in case of distresses for poor rates. (s) Piggott v. Births, 1 M. & W. 441. CHAPTER XIV. Injuries to land. 1. Injury to land generally. Compensation clauses. 2. Mes7ie Profits. 3. Injitry to easements. Damages vary according to Xjlaintiff's inte- rest in the land. Having in the preceding chapter discussed those actions which are brought for wrongs affecting personal property, I shall employ the present chapter in examining those which affect real property, 1. In actions for injuries to land, the measure of damages is the diminished value of the property, or of the plaintiffs interest in it, and not the sum which it would take to restore it to its original state. This was decided in a case where the defendant had cut a ditch in the plaintiffs field, and carried away the soil {a). And so where the defendant has knocked down the plaintiffs house, built upon his land, which is on lease, the proper measure is the amount by which the selling price of the premises would be reduced by the wrongful act {I). This amount is to be estimated by the value of the old house, and not by the sum it would cost to build a new one (c). Even if the house were only leased to the plaintiff, who was himself under a covenant to repair, the same prin- ciple would apply, for his liability on the covenant is calculated in the same way {d). Of course, special loss or injury to the occupant might give rise to additional damages. The damages will vary considerably, according to the plain- tiffs interest in the land. This is' obviously just, both to pre- vent the plaintiff getting extravagant recompense when his (a) Jones v. Gooday, 8 M. & W. 146. (6) ffosJcing v. Phillips, 3 Exch. 168. (c) Lukin T. Godsall, Peake, Ad. Ca. 15 ; Dodd v. Eolme, 1 Ad. & Ell. 493, 507 ; [Hide^. Thornborough, 2 C. & K. 250.] (d) Yates v. Dunster, 11 Exch. 15. INJURIES TO LAND. interest is on the point of expiring, or very remote, and to prevent the defendant being forced to pay for the same damage several times over. The same act may give rise to different injuries ; the tenant may sue for the injury to his possession, and the landlord for the injury to his reversion (e). And so where several are entitled in succession, as tenant for life, in tail, in fee, each can only recover damages commensurate to the injury done to their respective estates (/). Hence where a stranger cuts down trees, the tenant can only recover in re- spect of the shade, shelter, and fruit, for he was entitled to no more ; and so it is where the occupant is tenant in tail after possibility of issue estinct ; but the reversioner or re- mainder-man will recover the value of the timber itself {g). And so where the action was by the owner of a house against his lessee for opening a new door, whereby the house was injured, and the plaintiff was prejudiced in his reversionary interest ; the jury found that the house was in no way injured by the act complained of, upon which nominal damages were entered for the plaintiflP, subject to a special case ; it was held that there ought to be a new trial, that the jury might say whether the reversionary right had been injured, which it might be by the evidence of title being weakened, though the house was as good as ever ill). [But a simple trespass, even though accompanied by a claim of right, is not necessarily in- jurious to the reversionary estate. To entitle a reversioner to sue, the wrong complained of must be in its nature perma- nent {i). Temporary nuisances, as for example, noise or (e) Jefferson v. Jefferson, 3 Lev. 130 ; Jesser v. Gifford, 4 Burr. 2141. (/) Evelyn v. Raddish, Holt, N. P. 543 ; [Johnstone v. Hall, 2 Kay & J. 414; 25 L.J. Ch. 462.] {g) Bedingfield v. Onslow, 3 Lev. 209, 4 Rep. 63, citing 27 H. VI. Waste, 8. [Where fruit trees were destroyed by fire through the negligence of the defendants, the measure of damages was held in the Supreme Court of New- York to be the value of the trees as they stood on the land, not the diminished value of the land. It was laid down that although a fruit tree, dilTering from a timber tree, has strictly no commercial value as a tree independent of the land which sustains it, it has a value capable of estimation, having regard to its average annual products ; Whitheck v. New York Central Rail Road Co. , 36 Barbour (N. Y.), 644,] (h) Young v. Spencer, 10 B. & C. 145. [But that was an action on the case in the nature of waste by a reversioner against his tenant, and what was said in it must be construed with reference to the subject matter ; per Parke, J., in Baxter v. Taylor, 4 B. & Ad. 72.] [(i) Baxter v. Taylor, 4 B. & Ad. 72.] 331 332 INJUKIES TO LAND. smoke, will not give a reversioner a right of action, even though his tenants leave in consequence, and the rent which can be obtained for the premises is reduced {k).] Evidence of For the game reason the plaintiff must show what his interest. interest is, and its duration. A tenant can only obtain nominal damages, unless he gives evidence of the time for which he is entitled to occupy (l) ; and an owner who has parted with the right to the surface of the soil, as for instance by granting a right of pasturage over it, with exclusive pos- session, cannot sue at all for any trespass which does not affect the sub-soil (m). There is one curious case which seems at first to be at variance with this principle. In reality, however, upon the grounds upon which it was decided, it is in perfect accord- ance with it. J. J. demised land to the plaintiff at an annual rent for twenty-one years, with liberty to dig half an acre of brick earth annually ; the lessee covenanted that he would not dig more, or if he did, that he would pay an increased rent of 875?. per half acre, being after the same rate that the tvhole IricJc earth ivas sold for. A stranger dug and took away brick earth. The plaintiff sued him, and on verdict for plain- tiff, the question was whether he was entitled to the whole value of the earth, or only in proportion to his interest in it. It was admitted that there was more brick earth left than he could use up to the end of his term at the rate of half an acre per year. It was held by Mansfield, C. J., and Heath, J. (Chambre, J., contra), that the tenant was entitled to recover the whole value of the brick earth. They said that the lease amounted to an absolute sale of the whole brick earth, but the tenant was not to pay for the whole, unless he used the whole. Now supposing two actions to be brought, by the tenant and the landlord, it is clear that the sum of damages recovered must equal the full value of the earth. But they said the land- lord could only recover nominal damages, because non constat that any of the earth would ever be left for the benefit of the [(k) Mumford v. Oxford, Worcester, and Wolverhampton Ry. Co., 1 H. & N. 34 ; 25 L. J. Ex. 265 ; Simpson v. Savage, 1 C. B. N. S. 347 ; 26 L. J. C. P. 50.1 ^ y > (l) Twijman v. Knowles, 13 C. B. 222 ; 22 L. J. C P 143. (to) Cox v. Qlue, 5 C. B. 533. INJURIES TO LAND. 333 reTersion, as the tenant had the right of taking it away. Nor could he suffer by so much earth, upon which the tenant might pay additional rent, being taken away. Because whether it was taken away by the tenant himself or a stranger, he would equally have a right to recover on his covenant. If then the landlord could only obtain nominal damage, of course the full amount must be recoverable by the tenant. On the other hand, Chambre, J., was of opinion, that the property in the extra earth remained in the lessor, subject to the lessee's right to purchase it at a fixed price. That the beneficial account of the plaintiff in the earth taken by the defendant consisted in the difference between its value and the price he must have paid for it had he taken it himself. That all the remaining interest was in the reversioner. That the latter could main- tain no action against the lessee upon his covenant for the value of the earth taken by a stranger. Consequently, that if the lessee recovered the whole value he would receive so much money of his lessor's which he could not be made to refund («). It is clear that whichever side was right, the principle that neither could recover more than the amount of their interest was admitted. We have had occasion before to examine the case of a tres- Trespasrs hj pass committed by mining and carrying away the minerals severed (o). Here the most essential part of the wrong con- sists in the removal of the minerah It is to be estimated at its value at the time the defendant began to take it away ; that is, as soon as it existed as a chattel. This value will be the sale price at the pit's mouth, after deducting the expense of carrying it from the place in the mine where it was got to the pit's mouth, but not the cost of severing it. Separate compen- sation must be given for all injury done to the soil by digging, and for the trespass committed in dragging the mineral along the plaintiff's adit (jj). It seems, however, that where there is a real disputed title the case is different, and the minerals are to be valued as if the soil in which they lay had been purchased from the plaintiff (q). (n) AftersoU v. Stevens, 1 Taunt. 183. (o) Ante, p. 291. (p) Morgan v. Powell, 3 Q. B. 278 ; Martin v. Porter, 5 M. & W. 352 ; Wild V. Holt, 9 M. & W. 672. ( Taunt. 187. (d) Bieten v. Burridge, 3 Camp. 139. (e) Cotterell v. Jones, 11 C. B. 713. MALICIOUS PROSF.CUTIOX. 347 proceedings, no extra costs can be recovered as damages in this action (/). Malice and want of probable cause must also be proved (//), ^lalice. and the amount of damages given by the jury will always be greatly influenced by the species of evidence afforded upon this point. It was held in one case that a witness may, with a view to Evidence of pro- 1 -1 1 T ,1 1 • L-o} bable cause. showing probable cause, be asked whether the plamtiii was not a man of notoriously bad character (A). But the contrary doctrine has been several times laid down. Where the action was for maliciously and without probable cause procuring the plaintiff to be arrested on a charge of felony, a witness was asked whether he had not searched the plaintiffs house upon a former occasion, and whether he was not a person of sus- picious character. Wood, B., refused to allow the question. In actions for slander, he said, such evidence was admissible for the purpose of mitigating the damages, and not to bar the action, and that in this case such evidence would afford no proof of probable cause to justify the defendant (i). So where the action was trespass for false imprisonment on a charge of obtaining money under false pretences, a policeman was asked on cross-examination whether he had not had the plaintiff in custody before, and also what was her general character? Gurney, B., after consulting the rest of the Court, refused to admit the evidence, even in mitigation of damages {Tc). And similarly where the declaration contained counts for slander, and for a malicious arrest and imprisonment, Abbott, 0. J., refused to allow the plaintiff to give evidence of general good character, saying that if such evidence was to be admitted on the part of the plaintiff, then the defendant must be allowed (/) Sinclair v. Eldred, 4 Taunt. 7 ; Grace v. Morgan, 2 Bingh. N. C. 534 ; oveiTuling Sandback v. Thomas, 1 St. 306 ; Gould v. Barratt, 2 M. & Rob. 171. {g) Farmer v. Barling, 4 Buit. 1971 ; Gibson v. Chaters, 2 B. & P. 129. [The law is settled in England that the jury must find the facts ou which the question of reasonable and probable cause depends, and the judge must then determine whether the facts found do constitute reasonable and probable cause. No definite rule can be laid down for the exercise of the judge's judgment ; Lister v. Ferryman, L. R. 4 H. L. 521, 39 L. J. Ex. 177. In Scotland the ques- tion is treated as an inference of fact for the jury. lb., per Lord Colonsay.] (A) Rodriguez v. Tadmire, 2 Esp. 721. (i) Newsam v. Carr, 2 St. 69. (k) Bowning v. Butcher, 2 M. & Rob. 374. 348 MALICIOUS PROSECUTION. to go into evidence to prove that the phiintiif was a man of bad character (/). This was a particularly strong case, for the defendant had pleaded in justification, averring the charge of felony to be true. In a very recent case, where the action was for giving the plaintiff in charge, on the ground of his having stolen oysters from the defendant's bed, evidence was offered of a previous conviction of a tkircl party for the same offence. The defendant, however, was not aware of such conviction at the time he gave the plaintiff into custody. The Court decided that the evidence was properly rejected on that account. Pollock, C. B., in delivering the judgment of the Court, said, " The only ground on which the defendant could use any evidence for the purpose of showing that he was acting lond fide, was with reference to the imj^ression that the conviction would make upon his own mind, and not as to the fact itself. It was for this purpose perfectly competent for the defendant to prove that he had been informed of the conviction, and to show all that had been laid before him on which he might form an opinion upon the subject. But in this case the conviction itself never had been laid before him ; he was not present at the trial ; it could never have produced any effect upon his mind. We are of opinion, therefore, that it was very properly rejected, although on the other ground which I have mentioned, it might undoubtedly have been received for the purpose of establishing, bond fide, a sincere opinion, on the part of the defendant, that the plaintiff had been guilty of felony " (m). Of course if the previous convic- tion had been of the plaintiff himself, the evidence would have been admissible a fortiori. This seems to bear strongly upon the points under discussion. There is no doubt a distinction between evidence of general bad character, and a previous conviction for exactly the same offence as that charged under a mistake. The latter fact probably affords a stronger pre- sumption of guilt than the former. Yet if a person who has erroneously charged another with burglary, may show that he was in fact previously convicted of burglary, it is hard to see why he may not also show that he was well known as a thief and associate of burglars. Such evidence would certainly be (Z) Cornwall v. Richardson, Ry. & M. 305. (m) Thomas v. Russell, 23 L. J. Ex. 233 ; 9 Exch. 764. ASSAULT AND FALSE IMPKISONMENT. 349 a much stronger justification of the charge, than it •would he to show that a third party had previously committed a burglary in the defendant's house, and been convicted of it. It shows a fair reason for suspecting the plaintiff, whereas evidence, such as that in the case alluded to, merely shows ground for suspecting the world in general of a capacity for the particular crime, and a tendency to it. Cases of this sort vary so much according to the nature of the charge preferred, or action brought, according to the rank and motives of the parties, that the damages are always a mere matter of speculation. The talents of the counsel, the temper of the jury, and the view taken by the judge, have a greater influence upon their amount than any principles of law which can be laid down. 2. The damages in actions for assault or false imprisonment Assault and will also vary in the sam.e manner, accordinsf to the circum- false irapnson- stances of the case. The same remarks will also apply to the evidence which may be adduced in proof of probable cause. Where the action was for an arrest in Bristol, without reason- able and probable cause, it was held that the defendants, who were constables of Oxford, might show in mitigation of damages, that they had taken the plaintiff on suspicion of stealing a horse ; but that as the arrest had been made out of their jurisdiction, they could not give the matter in evidence, under the general issue, as an entire defence by virtue of the stat. 25 Jac. I. c. 12 {n). A justification of a false imprison- ment, on the ground that the defendant had reasonable and probable cause to suspect the plaintiff of being guilty of a felony, is very different in its effect upon the damages from an unsuccessfal plea that the plaintiff was and is guilty of the felony. The former is in the nature of an apology for the defendant's conduct. The latter is a persistence in the original charge, which is in itself a ground for aggravation of damages. And it makes no difference that the plea was abandoned at trial, the defendant's counsel saying that the charge was un- grounded ; and that the plea was the act of the pleader, and not of the defendant (o). (n) Bouicliffe v. Murray, Car. & ]\I. 513. (o) \Yarwick v. Foulkes, 12 M. & W. 507. 850 ASSAULT AKD FALSE IMPRISONMEKT. Jlitigation of damages. Remand by magistrate. Joint actions, and actions against several. ISTo evidence which if pleaded would be a bar, can be given in evidence in mitigation of damages. Accordingly, where the action was for an assault, and there was no plea of justifi- cation, but evidence was oflPered that the plaintiff was one of the crew on board the defendant's ship, and that the beating was in consequence of his misconduct ; it was ruled that as these facts might have been pleaded in bar, the jury should not consider them in estimating damages for the injury inflicted {p). Where the action is trespass for false imprisonment, damages cannot be given for a remand by the magistrate, which is a distinct judicial act proceeding from himself alone {q). The action should be in case, alleging malice and want of probable cause, or trespass against the magistrate (r). On the other hand, a recovery in an action for false im- prisonment is no bar to another action for a malicious prose- cution. They are altogether diflFerent causes of action. The taking a man up on a charge of felony is distinct from going before a grand jury, and falsely and maliciously taking an oath to get a bill found against him, and then going before a petty jury and trying to induce them to find him guilty. Con- sequently, in the action for false imprisonment, none of the circumstances connected with the subsequent prosecution can be proved, or allowed for in damages {s). Where the action is a joint one, by or against several, only those circumstances which prove a joint injury to or from all can be compensated for. Therefore, where several plaintiff's sue, on account of a joint imprisonment, they may recover in respect of money which they paid jointly for their release, but not on account of the suflTering caused by the imprisonment, for that was a separate injury to each (/), And so in the case of a joint trespass, the true measure of damage is the whole injury which the plaintiff" has suffered from the joint act. But aggravated damages cannot be given on account of the pecuUar malice of one. In such a case the plaintiff ought to {p) Watson V. Christie, 2 B. & P. 224. (q) Lock V. Ashton, 12 Q. B. 871. \r)' Morgan v. Hughes, 2 T. li. 225, 231. (s) Guest V. Warren, 9 Excli. 379. {t) Haythorn v. Laivsvn, 3 C. & P. 196 ; Barratt v. Collins, 10 Moo. 446. PERSONAL INJURY FROM NEGLIGENCE. 351 elect the party against whom he means to get aggravated damages (u). It may be as well to remark that every action against a jus- justices of the tice of the peace, for anything done by him in the execution peace. of his duty as such justice, and within his jurisdiction, must be on the case, and allege the act to have been done mali- ciously and without probable cause (x). Where he has no jurisdiction, or exceeds his jurisdiction, he may still be sued in trespass, subject to certain provisions as to quashing the conviction (?/). And in no case is the plaintiif to have more than twopence damages, where it appears that he was guilty of the offence of which he was convicted, or liable by law to pay the money ordered to be paid, and that he has undergone no greater punishment than that assigned by law to the offence of which he was convicted, or for non-payment of the money ordered {2). 3. Very little can be said with certainty as to damages for Personal injury personal injuries inflicted by negligence. Loss of time during caused by negli- . 2GDCG, the cure, and expense incurred in respect of it, are of course matters of easy calculation. Pain and suffering undergone by the plaintiff are also a ground of damage (a). And in this point such an action differs from one brought by the personal representatives, where a death has ensued (b). Any perma- nent injury, especially when it causes a disability from future exertion, and consequent pecuniary loss, is also a ground of damage. This is one of the cases in which damages most signally fail to be a real compensation for the loss sustained. In one case Parke, B., said, " It would be most unjust if, whenever an accident occurs, juries were to visit the un- fortunate cause of it with the utmost amount which they think an equivalent for the mischief done. Scarcely any sum could compensate a labouring man for the loss of a limb, yet you do not in such a case give him enough to maintain him for life " (c). No rule can be laid down in (w) Clark V. Newsam, 1 Exch. 131, 139; and see Gregory v. Cotterell, 22 L. J. Q. B. 217. (x) 11 & 12 Vict. c. 44, s. 1. {y) S. 2. (z) S. 13. (a) 18 Q. B. 111. (b) See post, p. 392. (c) Armsworth v. S. E. Ry. Co., 11 Jur. 760 ; cited IS Q,. B. 104. SOa ACTIONS BY THE CREDITOR AGAINST THE SHER[FF. such, a case ; and although juries are frequently cautioned not to let their verdict be influenced by the poverty of the plaintiff and the wealth of the defendant, yet the caution •is probably seldom much attended to. To examine how far it is deserving of very strict obedience, would furnish material for much longer discussion than I wish to yield to it here. Actions against 4. Actions against the sheriflF are either by the creditor, for the sheritf. ^^^^ neglect of duty which deprives him of his proper remedy against his debtor ; or by the debtor, or supposed debtor, or his representatives, for some unlawful exercise of authority against him. I. Actions by the creditor against the sheriff. Rerlevin. One of the most common of these arose [before the passing of 19 & 20 Vict. c. 108] out of the action of replevin. Stat. 11 Geo. II. c. 19, s. 23, enacted that sheriffs and other officers granting replevins should take from the plaintiff, and two responsible persons as sureties, a bond in double the value of the goods distrained, conditioned for prosecuting the suit with effect, and without delay, and for a return of the goods. By sect. 22, if the plaintiff in replevin should discontinue, be nonsuited, or have judgment against him, the defendant should recover double costs. Stat. 5 & 6 Yict. c. 97, s. 2, enacted that, instead of double costs, the defendant should have such full and reasonable indenmity as to all costs, charges, and expenses incurred in and about the suit, as should be taxed by the proper officer. [By 19 & 20 Vict. c. 108, ss. 63, seqq., the powers and responsibilities of sheriffs with respect to replevin bonds and replevins were put an end to ; and the registrar of the county court of the district in which the distress sub- ject to replevin is taken, is empowered to approve re- plevin bonds and grant replevins, and issue all necessary process. The goods are to be replevied to their owner on his giving security, to be approved by the registrar, for an amount sufficient to cover the rent or damage and pro- bable costs of the cause, conditioned to prosecute the action with effect and make return of the goods. The security is to be a bond with sureties to the other party, or a deposit in money. The registrar is bound to use proper discretion in ACTIONS BY THE CREDITOR AGAINST THE SHERIFF. 353 approving replevin bonds (d), and it would seem, that if he is guilty of negligence an action will lie against him at the suit of the party damnified (e). In such case the principles acted upon in actions against the sheriff will apply.] If the sheriff failed to take a bond, or took one with in- sufficient sureties, an action upon the case lay against him, and in such an action he was liable to the same extent as the sureties would have been, had he done his duty (/). The question then was, to what extent were the sureties liable ? The extreme limit of liability was, in all cases, the penalty of Extent of liabi- the bond, and the costs of suing upon it (//). Within this ^^''•^^[If^Q^I' limit, however, the liability might vary ; and for a long time there was great doubt as to the rule by which the variation was to be regulated. It is obvious that the rent distrained for might either be greater or less than the value of the goods distrained. Accordingly, where it was greater, the struggle on the part of the plaintiff was to extend the damages to the whole amount due ; where it was less, to the whole value of the goods. On the other hand, the sheriff tried to limit his liability in all cases to the value of the goods, and to escape all claim for costs. The latter attempt, which was sanctioned by the Court, in Yea v. Lethhridge (h), was decided against in Paul V. Goodliick (i). The former point, however, was still left open. It was, however, afterwards settled, that the object of the statute was only to place the parties in the same position as if no replevin bond had been executed. At Common Law the landlord had only his remedy against the person who brought the action of replevin. The replevin bond gave him the additional security of the sureties, and the double costs. That was the whole effect the act could have had. Consequently, if the rent was less than the value of the goods, the object of the statute was satisfied by giving [(rf) Young Y. Brom2^ton, d-c, Waterworks Co., 1 B. & S. 675; 31 L. J. Q. B. 14.] [(e) 2 Ch. Arch. Pr. 1104, 12th ed.] (/) £ra7is V. Brandcr, 2 H. Bl. 550 ; Baler v. Garratt, 3 Bingh. 56, 59 ; Paul V. Gooclluclc, 2 B. N. C. 220. {(j) Ilefforel v. Alffer, 1 Taunt. 218; Jrffcry y. Bastard, 4 Ad. & Ell. 829 ; j)er Littledale, J., Brans v. Brander, 2 H. Bl. 547 ; overniling Con- canen v. Lethhridge, 2 H. Bl. 36. (h) 4 T. R. 433. (0 2 Bingh, N. C. 220. A A 354 ACTIONS BY THE CREDITOR AGAINST THE SHERIFF. the amount of the rent and the costs ; otherwise the landlord would have been getting more than the rent due. If the amount of the rent exceeded the goods, then the landlord was entitled to the value of the goods, with the costs, as before ; otherwise, his remedy against the sureties would have been greater than it had been against the tenant (./). In the former of those cases, Patteson, J., pointed out that some of the authorities relied on as opposing this view, really were not against it, as they did not state which, the rent or the goods, were greater in value. For instance, in Ward v. Eoiley (k), where it was held that the rent in arrear and costs was the measure of damages against the sureties, it does not appear that the rent was not less than the distress. And in Scott v. Waithman{l), where Abbott, C. J., said, "As the verdict in the replevin suit was merely for a return of the goods, the jury could not in their verdict exceed the value of the goods," it does not appear whether the goods were greater or less in value than the rent. In no case could either sureties or sheriff be liable for rent which accrued after the distress (m). The rules thus settled equally applied where the action was against the sheriff for not having taken a bond at all, or an Damages against invalid One, or ODC with insufficient sureties. In such a case sheriff. ^he rent due, and the expenses of the distress, were held to be a proper amount of damages (n). In that case it would appear, that the value of the goods was gi'eater than the amount of the rcut ; and that no proceedings in replevin had been carried on, so as to raise a claim for costs. The costs of proceedings against the sureties might be recovered against the sheriff in this form of action, even though no notice of the intention to proceed against them had been given him ; provided such costs did not, together with other claims, ex- ceed the penalty (o). In BaJcer v. Garratt, the Court seemed to think, that if due notice of the intention to sue had been given, such costs might be recoverable, even beyond the (/) Hunt V. Round, 2 Dowl. 558 ; Miers v. Lockwood, 9 Dowl. 975. (/.•) 1 Y. & J. 285. (1) 3 Stark. 168. (m) Ward v. Bcnlcy, 1 Y. & J. 285. (n) Edmonds v. ChaJlis, 7 C. B. 413. (o) BaJcer v. Garratt, 3 Bingh. 56 ; Plumer v. Brisco, 11 Q. B. 46. ACTIONS BY THE CKEDITOR AGAINST THE SHERIFF. 60-i penalty; because the sheriff miglit have prevented the ex- pense by paying all he was liable to pay under the sureties' bond. They distinguished such a case of expenses, wholly incurred through liis default, from that of costs of replevin suit, for which he was not liable to a greater amount than the penalty (j)) ; because the legislature presumed that these would be covered by double the value of the goods, and the amount so incurred was not within his control. On the same principle, where the sheriff had lost the re- when bond is plevin bond, he was liable in an action on the case at the suit ^°^*- of the defendant in replevin, to the amount of damage to which the sm-eties would have been liable, or to the amount of the penalty of the bond, whichever was less (q). The principle that where the sheriff has been in fault, the Damages for plaintiff is entitled to be placed in the same position by means JjJ^®^^J_ °^ *'*'''''' of damages, as if the defendant had done his duty, is main- tained in numerous other cases ; for instance, in actions for delay in executing a writ of arrest (r) ; in selling under a fi. fa. (s) ; in returning the writ (/) ; for a false return (k) ; for not levying (v). In all these the damages are measured not by the amount of the debt, but by the amount which could or would have been recovered, if the breach of duty had not taken place (x). And if the sheriff return 7iulla bona to a writ of fi. fa., and the creditor knows of goods belonging to his debtor, he need not sue forth a second writ of fi. fa., but may, in an action for a false return, recover the value of the goods which the sheriff ought to have taken {y). There is a difference to be observed in these actions, viz. When it is neces- that in those, the whole gist of which is pecuniary damage, ^^al^cfamlge. (X>) Evans v. Brander, 2 H. Bl. 547. (q) Perreau v. Bevan, 5 B. & C. 284. (r) aifton V. Hooper, 6 Q. B. 468. (s) Aireton v. Davis, 9 Bingh. 740 ; Bales v. Whvjfidd, 4 Q. B. 580 n. (0 R. V. Sheriff of Essex, 1 M. & W. 720. (u) Orowder v. Lo7}rj, 8 B. & C.598 ; Ilecnan v. Evans, 3 M. & Gr. 398. (v) Augustim v. C'hallis, 1 Exch. 279 ; Mullet v. Challis, 16 Q. B. 239. \_(x) And all the probabilities of the case must be looked at, as for example, -whether or not, if the execution had been levied, the plaintiff would have got any benefit from it, the other creditors of the execution debtor having been in a position to maiie him bankrupt ; Hohson V. Thellusson, 8 B. & S. 476 ; L. R. 2 Q. B. 642 ; 36 L. J. Q. B. 302.] (?/) Per Cur. Arden v. Goodacre, 11 C. B., at p. 377 ; 20 L. J. C. P. 184. ,[Primd facie, the measure of damage is the value of the goods which might have been and were not levied ; Hohson v. Thellusson, sm^jto.] A A 2 356 ACTIONS BY THE CREDITOR AGAINST THE SHERIFF. some such damage must be proved, or the action will fail. But in others, there is an injury to a right, even independent of actual loss ; and the fact of loss being negatived, merely makes the damages nominal. Thus in an action for a false return (,*) ; for not arresting on mesne process (a) ; or for per- mitting a debtor arrested on mesne process to escape (b) ; a plea negativing any damage is good as a bar, and proof of absence of loss entitles the defendant to a verdict (c). In all these cases, the truth of the return, or the detention of the debtor, is only of importance to the plaintiff as contributing to some ulterior result. If no such result could have been produced, or has been affected by it, there is no ground of action. But the case of an escape on final process is different. The creditor, " when he is ascertained to be such by a judg- ment, and he has charged the debtor, has a right to the body of his debtor every hour till the debt is paid" (d). This is itself the end, not the means. Consequently, a right of action for nominal damages arises on any escape, for however shoi't a time, even though no pecuniary damage arises (e) ; or on Onus of proving ^ny delay in arresting him (/). It would appear in all cases in which damage is necessary to maintain the action, that proof of the breach of duty will lay upon the defendant the onus of showing that no damage ensued ; but to entitle plaintiff to substantial damage, specific evidence of loss must be given (g). Cases of actions for escape after arrest on mesne process, or neglect to execute such arrest, [became of rare occurrence after] arrest on mesne process was almost done away with by 1 & 2 Vict. Clio, s. 3. [It is now abolished by The Debtors' (2) WijUe V. Birch, 4 Q. B. 566 ; [Levy v. Hale, 29 L. J. C. P. 127 ; Stimson v. Farnham, L. R. 7 Q. B. 175 ; 41 L. J. Q. B. 52.] (a) Curling v. Evans, 2 M. & G. 349. (b) Williams v. Mostyn, 4 M. & W. 145 ; Lcicis v. Norland, 2 B. & A. 56—64; Planck v. Anderson, 5 T. R. 37; overruling Barker v. Green, 2 Bingh. 317. [(c) So where the action was against the sheriff for selling the reversionary interest of the plaintiif in goods in the possession of an execution debtor ; Tancred v. Allgoocl, 4 H. & N. 438 ; 28 L. J. Ex. 362. See also Lancashire Waggon Company v. FitzHugh, 6 H. & N. 502 ; 30 L. J. Ex. 231.] (d) Per Buller, J., Planch v. Anderson, 5 T. R. 40. (e) Williams v. Mostyn, 4 M. & W. 153. (/) Clifton V. Hooper, 6 Q. B. 468. (gr) Bales v. Wingfield, 4 Q. B. 580, n. ; Wylie v. Birch, 4 Q. B. 566, 578 ; Scott V. Henley, 1 M. & Rob. 227. ACTIONS BY THE CREDITOR AGAINST THE SHERIFF. 357 Act, 18G9, 32 & 33 Vict. c. 62, s. G. But analogous actions may still arise, for it would seem that an action will lie against the sheriff for disobeying an order for arrest made by a judge under this last act {h). Such orders may be made under certain circumstances before final judgment where the defen- dant is about to quit England, the arrest being for a period not exceeding six months, terminable on the defendant's giving security, in ordinary actions, that he will not go out of England without the leave of the Court, in penal actions, that the sum recovered in the action shall be paid or the defen- dant rendered to prison («). Arrest on final process is also abolished, except in a few specified cases ; and if those ex- cepted cases still give rise to actions for not arresting or for escape, the calculation of damages will be complicated by the consideration that the imprisonment could in no case be for a longer period than a year {h). Under s. 5, in some cases judgment debtors may be committed to prison for periods not exceeding six weeks or until payment of the sum due. It will be difficult for a jury to estimate satisfactorily in such cases the value of the custody of the debtor.] Formerly by statute "Westminster 2 {I), and 1 Rich. II. Actions for c. 12, an action of debt could be maintained against the ^^'^^p®' sheriff upon an escape, to recover the sum for which the debtor had been charged in execution, and upon this action the creditor could not recover less than the whole sum due, and the costs of the execution (ni). This action, however, has been taken away by 5 cfe 6 Vict. c. 98, s. 31, and the creditor is left to his old remedy at common law by action on the case Must be in case, for damages. In a recent case the law as to the assessment of damage was laid down by the Court of C. B. as follows : " The true measure of damage is the value of the custody of Measure of the debtor at the time of the escape, and no deduction ought hed. These may be quite independent of the meaning of the libel, of which there may be no doubt. Accordingly, this distinc- tion too has been overruled by Pearson v, Lemaitre, where Tindal, C. J., lays down the correct rule to be, " that either party may, with a view to the damages, give evidence to prove or disprove the existence of a malicious motive in the mind of the publisher of defamatory matter, but if the evidence given for that purpose establishes another cause of action, the jury should be cautioned against giving any damages in respect of it ; and if such evidence is offered merely for the purpose of (s) Macleod v. WaHey, 3 C. & P. 311. [If there Las been a considerable interval, the jury should be directed to consider whether the subsequent ex- pressions might not have referred to something which had happened after the libel ; Hemmings v. Gasson, E. B. & E. 346 ; 27 L. J. Q. B. 252.] {t) Delegall v. llighley, 8 C. & P. 444. {u) Finnerty v. Tipper, 2 Camp. 72. (x) Mead v. Dauhigny, Peake, 125 ; Cook v. Field, 3 Esp. 133 : Defries V. Davis, 7 C. & P. 113. (y) Leex. Buson, Peake, 166 ; Jtmtcll v. Macquistci; 1 Camp. 41», n. {z) Pearson v. Lemaitre, 5 M. & Gr. 700. (a) Stuart v. Lorell, 2 Stark. 93 ; Pearce v. Ornshy, 1 M. k Rob. 455 ; Symnons V. Blake, ibid., 477. DEFAMATION. 365 obtaining damages for such subsequent injury, it will be properly rejected {b). On the same principle, the fact that the defendant has Persisting in the persisted in the accusation and refused to apologise, and that '^ ^^^^^' he has put a plea of justification on the record, may be taken into consideration as evidence of malice to heighten the damage {c). But the latter circumstance cannot be used as evidence of express malice, in answer to another plea raising the defence of a privileged communication ; though if that plea were found for the plaintiff, it would be an aggravation of the damage (d). Even where the publication is admitted on the pleadings, the plaintiff is entitled to show the manner of it, with a view to damages (e). General evidence of good character cannot be given in General evidence aggravation of damage, except to rebut evidence offered by p^ove malice. the other side ; for till then the presumption of law is in the plaintiff's favour, and the evidence would (in theory at all events) be without an object (/). When the libel consists of an accusation imputing incom- petency in a particular transaction, evidence cannot be offered of general competency on other occasions. This could only be admissible to show malice, by disproving the charge. But a persoa may have shown himself quite incompetent on one occasion, and quite the reverse on others {g). The contrary rule prevails where the accusation is as general as the evidence offered to rebut it. Accordingly where the defendant had written of the plaintiff, who had acted as governess in the defendant's family, " I parted with her on account of her in- competency, and not being lady-like and good-tempered;" general evidence in contradiction of the statement was re- ceived. Lord Denman said, " Malice may be estabhshed by (6) 5 M & Gr. at p. 719. [Omitting to give this caution is not misdirection ; Darby v. Ouseleij, 1 H. & N. 1 ; 25 L. J. Ex. 227.] (c) Simpson v. Robinson, 12 Q. B. 511. [Even the language of counsel in Court, if instructed to persist in the charge, may aggravate the damages ; ib., and see Darby v. Ouseley, per Pollock, C. B. , 25 L. J. Ex. at pp. 230, 233 ; Rislc Allah Bey v. Whitehurst, 18 L. T. N. S. 615,^56?- Cockbum, C. J., at nisi 2yrius.'\ (d) Wilson V. Robinson, 7 Q. B. 68. (e) Vines v. Serell, 7 C. & P. 163. (/) Cornwall v. Richardson, Ky. & M. 305 ; Guy v. Gregory, 9 C. & P. 587. {g) Brine v. BazaJyetie, 3 Exch. 692. 366 DEFAMATION. Evidence of the circulation of the libel. When evidence of malice is inadmissible. various proofs ; one may be that the statement is false to the knowledge of the party making it " (h). Where it appears that many copies of a newspaper contain- ing a libel have been put into circulation, this will be admis- sible to aggravate the damages on the ground of malice, if the defendant can be expressly connected with the circulation ; if he cannot, no presumption of malice can be drawn, but the fact will stiU be evidence to show the extent of injury done. This was so ruled in a case where the defendant was the publisher of a newspaper, which was industriously circulated in a particular neighbourhood, and sent gratuitously to several non-subscribers, but not by the defendant (/). The same rule would clearly apply to a person not the publisher, if he puts his libel into a shape which would ensure its circulation, as into a newspaper. Of course he would not be responsible for its repubhcation by a third person, in a way which he could not have anticipated ; as, for instance, if a private letter con- taining a libel was prmted by the receiver without his know- ledge {7c). There may, however, be cases in which, from the form of action, evidence of malice would be inadmissible. Accordingly in an action against the publisher of a magazine, no evidence can be given of the malice of the writer, who is a different person, and for whose motives the editor cannot be liable, though he is responsible by law for his acts ( I). And so the position of the plaintiff's may exclude evidence which would otherwise be allowable. In a joint action by partners for a libel, no damages can be given for the injury to their feelings, as the only basis of the joint action is the injury to their joint trade (?m). And in a joint action by husband and wife for a libel on the wife, no special damages can be recovered on the joint count, because any such is damage solely accruing to the husband (n). But now in any action brought by a man and (/() Fountain v. Boodle, 3 Q. B. 5 ; [so Harrison v. Bush, 5 E. & B., at p. 363, et seq. ; 25 L. J. Q. B. 99.] (?:) Gathercole v. Miall, 15 M. & W. 319. (k) See Wardy. Weeks, 7 Bingh. 211, et post. {D Robertson v. Wylde, 2 M. & Rob. 101. (m) Uaythorn v. Lawson, 3 C. & P. 196 ; [Lrfanu v. MaJcolmsov, 8 Ir. L. B. 418.] {It) Dcnrjatc v. Gardiner, 4 M. & W. 5. DEFAMATION. 367 his wife for an injury done to the wife, in respect of which she is necessarily joined as co-plaintiflf, the husband may add claims in his own ri2,ht (o). Where the cause of action is proved or admitted, the jury Substantial are not limited to nominal damages, thoudi no evidence is ^aniages may be ° ' ° given witlioTit given on the part of the plaintiff (p). In a recent case the pi-oof of actual action was for a newspaper libel pubKshed more than seven- ^'^J"^^- teen years ago. In bar of the statute it was proved that a single copy had been sold by defendant to plaintiffs agent. It was held that the judge was not bound to tell the jury that they ought to limit the damages to the injury which they might believe the single publication had occasioned (q). In the particular case there were other counts for other libels more or less connected with it, which would have made the separate assessment of damages very difficult; but on prin- ciple the decision is obviously correct. Where the words are actionable without special damage, the Future damage. jury may take into consideration not only the injury that has arisen, but that which may arise fi'om the slander ; because such fresh injury would constitute no ft-esh ground of action (r). But it is said by North, C. J., in the same case (s), that if the words are not in themselves actionable, the jury in computing damages ought only to consider the damage which is specially alleged and proved ; because if any damage be at a future time sustained, a subsequent action will lie for it. And so where evidence of special damage, subsequent to the com- mencement of the suit, was admitted by consent, Tindal, C. J., said, " By permitting this evidence to be given, the defendant may possibly have escaped having a second action brought against him " (/). But this is opposed to the authority of a distinguished judge, who lays it down, that where a plaintiff has once recovered damages he cannot afterwards bring an action for any other special damage, whether the words be in themselves actionable or not (u). (o) 15 & 16 Vict. c. 76, s. 40. (p) Tripp V. Thomas, 3 B. & C. 427. {q) Duke of Brunswick Y. Hariner, 14 Q. B. 185. (r) Lord Toivnshend v. Hughes, 2 Mod. 150 ; Ingram v. Lav)son, 6 Bingh. N. C. 213 ; Gregory v. Williams, 1 C. & K. 568. («) Lord Townshend v. Hughes, svpra. (t) Goslin V. Corri/, 7 M. & G. 342, 345. {u) Bull, N. P. 7 ; citing Fitter v. Veal, Ca. K. B. 542. 368 DEFAMATIOX. Evidence of specific injury after action brought. Of course special damage, laid as such, must have accrued before action; but a diiferent question arises, whether a specific injmy after action may be given in evidence to enable the jury to estimate the amount of general damage? An action was brought by a shipowner for a libel, which stated that his ship, then advertised to sail to the East Indies, was not seaworthy, and was purchased by Jews to take out convicts. No special damage was laid. The action was commenced three days after the libel was published. Evidence was ad- mitted of the average profits of a voyage to the East Indies, and that the first voyage after the libel, the plaintiffs profits were nearly 1500^. below the average. It was held that the evidence was rightly received. The jury must have some mode of estimating tlie damages, and they could not be in a condition to do so, unless they knew something of the plain- tiflTs business, and of the general return of his voyages (.r). The same principle was applied where the action was for a description of the plaintiff in the Hue and Cry, in consequence of which he was arrested. The arrest, which was laid specially, took place after action brought. Evidence of it was allowed by consent of defendant's counsel, who then objected that the judge ought to have excluded it from the minds of the jury in assessing the damages. It was held that the judge's charge was right, as he did not tell the jury that they were at liberty to give damages for the arrest, which took place after action brought, but that they might view it as a confirmation of the plaintifi"s apprehension that an arrest would be tlie probable consequence of the libel (y). This was obviously the only way in which the evidence could be used, but it seems to have been assumed throughout that it was not strictly admissible at all. Now it is plain, that in estimating damages the jury must be greatly influenced by the probability that an arrest would take place, and on the principle of Ingram v. Laicson, evidence that it had taken place, even after action, was surely admissible. Possibly the difficulty in this case arose from the fact, that that very arrest was laid as special damage, and to prove that allegation it plainly was inadmissible. (x) Ingram v. Lawson, 6Bingh. N. C. 212. (7/) Goslin V. Corry, 7 M. k Gr. 342. DEFAMATION. SG9 Where words are in themselTes actionable, no special damage Troof of general need be laid or proved ; the law presuming that the uttering "'•'"^'^" of the words, or the publishing of the libel, have in themselves a natural and necessary tendency to injure the plaintiff {z). From this the curious inference seems to be drawn, that because the law assumes that a general injury will follow, you cannot prove that a general injury has followed. In an action for a libel against a trader, special damage was laid. Plain- tiff's counsel proposed to rely only on general injury, and to ask whether there had not been a general loss of business since the libel. Tindal, C. J., said, "No, that would be so very hard against the party. You set out with that, you see. The law gives it you as a bonus. If you want specific damages you must give specific evidence " (a). Where, hoAvever, the action was for a libel on an actress, in consequence of which she would not sing, and the declaration alleged as damages the loss of several performances, Lord Kenyon ruled that the box-keeper might be asked generally, whether the receipts of the house had not diminished from the time Madame Mara had declined to sing ? but that to ask if particular persons had not in consequence given up their boxes, was specific damage and inadmissible (b). Similar evidence was received in the case of Ingram v. Lawson {c). There, however, it seems to have been admitted, not with a view to show what the plaintiffs loss had been, but what the general nature of his business and profits was. For it will be remarked that though the evidence showed a falling off of 1500Z,, the jury only found a verdict for 900?. In Rose v. Groves, Cresswell, J., took a distinction between particular and special damage, saying, " In an action for slandering a man in his trade, where the declaration alleges that he thereby lost his trade, he may show a general damage to his trade, though he cannot give evidence of particular instances" {d). There seems a difficulty with regard to the admission of the evidence, as to the mode of connecting the slander with the falling off. On the other (2) Malachy v. Soper, 3 B. N. C. 382. (a) Dderjall v. Highlcy, 8 C. & P. 448. (b) Ashley v. Harrison, 1 Esp. 48. (c) Ante, p. 368. (d) 5 M. & Gr., at p. 618. [So Evans v. Harries, 1 H. & N. 251 ; i^osi, p. 370.] 370 DEFAMATION. Special damage must be laid. Special damage must be the result of defend- ant's own acts. hand, there is an obvious injustice in excluding what, in the mass of cases, must be the only evidence of damage really procurable. Special damage must be laid and x>roved, where the words are not actionable without it. In this case the special damage is the gist of the action (e). Even though the words are in themselTCS actionable, no evidence of any specific loss sustained in consequence of them can be adduced, unless laid in the declaration (/). It is sufficient, however, to state the special damage with as much certainty as the case will admit of. [It has been said that] if a trader brings an action for slander, by which he lost his customers, their names must be set out specially, that the defendant may meet the charge if it is false ; and [that] where this is not done, general evidence of loss of customers cannot be received {g). But a clergyman laying as special damage the loss of his congregation, is not required to state their names, on account of the supposed impossibility of so doing (h). The principle is clear enough, but the distinction between the two cases seems rather fine. [And recently, in an action for slander of the plaintiff in his business of an innkeeper, it was held sufficient to allege and prove as special damage a general loss of custom, without stating the names of customers {%).'] As to special damage, [which must be the loss of some material temporal advantage {k),] that only which is the natural and fair result of the words spoken can be laid, or proved. The application of this rule is not so veiy easy. One point is quite clear, that no damage can be recovered for. (e) See the Text Bks., Selw. N. P. 10th ed. 1248 ; [12th ed. 1269]; Com. Dig. Action upon the Case for Defamation, D. 30. See also Malnchy v. Soper, 3 B. N. C. 371 ; Ayre v. Craven, 2 A. & E. 2 ; Evans v. Harloiv, 5 Q. B. 624 ; Wilhy v. Ehtan, 8 C. B. 142 ; Hoj.wood v. Thorn, ibid., 293 ; [Dia:on V. Smith, 5 H. & N. 450 ; 29 L. J. Ex. 125 ; where it was held that general damages for loss of business, which might have resulted from a repetition of the slander, could not be recovered.] (/) Geare v. Britton, B. N. P. 7 ; Hatheway v. Newman, Selw. N. P. 1248. {g) Hartley v. Herring, 8 T. R. 133 ; Wa(erhouse v. Gill, Selw. N. P. 1248, 10th ed. See, however, per Cresswell, J., ante, p. 369. ih) Hartley \. Herring, 8 T. R. 130. {{i) Evans v. Harries, 1 H. & N. 251 ; and see M'LoughUny. Welsh, 10 Ir. L. 1{. 19.] [(k) Roberts and Wife v. Roberts, 5 B. & S. 384 ; 33 L. J. Q. B. 249.] DEFAMATION. 371 which is the result, not of the original slander by the defen- dant, but of the repetition of that slander by some' third per- son. In such a case, the immediate cause of the plaintiff's damage arises from the voluntary act of a free agent over whom the defendant has no control, and for whose acts he is not answerable (I). But where the words are used under circumstances which render it certain that they will be repeated, and they are repeated by persons whose duty it is to report them, injury accruing fi-om such report is it seems admissible ; as where a police constable was dismissed in con- sequence of language addressed to him by a police magistrate in trying a cause, which was reported in due course to the commissioners (m). It was once thought that damage resulting from the act of When the act of a third party, though caused by the language of the defendant, ^ ^^^^^ ^^^^ would not be actionable if it was in itself a ground of action special damage. by the plaintiff against such third party {n). This doctrine, however, was long doubted (o), and is now finally over- ruled (p). In practice the same result will probably be reached in many cases, by aid of the doctrine that damages must not be too remote. Where the act of the third party is plainly rash and illegal, it will perhaps be held not to be the natural result of the defendant's words. To use Lord Ellenborough's illustration {g), " The defendant would be no more answerable for it, than if, in consequence of the words, other persons had afterwards assembled and seized plaintiff and thrown him into a horsepond, by way of punishment for his supposed transgression " (r). Where an actual injury has followed the slander, it is no answer to show that the third person would have probably (?) Ward V. Weeks, 7 Bingh. 211 ; Vicars v. WUcocks, 8 East, 1 ; 2 Smith's L. C. 487, 6th ed. ; Tunnicliffe v. Moss, 3 C. & K. 83 ; [Dixon v. Smith, 5 H. & N. 450 ; 29 L. J. Ex. 125 ; Bateman v. Lyull, 7 C. B. N. S. 638.] (m) Kendillon v. Malthy, Car. & M. 402; {Derry v. Handley, 16 L. T. N. S. 263, Q. B. It is not the dvity of a wife to rciiort to her husband slander- ous abuse of herself ; Parkins v. Scott, 1 H. & C. 153 ; 31 L. J. Ex. 331.] (n) Vicars v. Wilcocks, 8 East, 1 ; 2 Smith's L. C. 487, 6th ed. ; Morris V. Law/dale, 2 B. & P. 284, 289. (o) Green Y. Button, 2 G. M. & R. 707, 2 Sm. L. C. 496—499, 6th ed. (p) Lumley v. Gye, 2 E. & B. 216. (?) 8 East, 3. (r) And &ee Haddan v. Lott, 15 C. B. 411 ; 24 L. J. C. P. 49 ; [and aH^c, p. 42.] B B 2 372 DEFAMATION. Evidence in mitigation of damage. That defendant did not originate the libel. acted in tlie same way, had the slander not been used (s), if the act did in fact follow fi-om the words. But an injmy which did not naturally ensue from the libel, and might have arisen fi'om other causes, cannot be ground of action. De- fendant published a libel on an actress whom plaintiff had engaged to sing for him ; she refused to sing from fear of being hissed, and he claimed for loss of profits. Lord Kenyon said, the injury was too remote, and impossible to be con- nected with the cause assigned for it. Her refusal to perform might have proceeded from groundless apprehension of what might never have happened, or ft-om caprice or insolence (/)• Of course, where words do not in themselves, or by the inter- pretation put upon them by the plaintiflF in his declaration, bear a defamatory meaning, no amount of special damage will form a ground of action, or be admissible in evidence. Such special damage is not the natural or necessary consequence of the words (u); nor can evidence be received of injury toother persons than the plaintiff, as, for instance, to his wife, though she was one of the persons assailed in the libel (x). The loss of substantial hospitality, which had been a per- manent addition to the plaintiff's income, is good ground of special damage (y). [Loss of the society of acquaintances is not, nor illness resulting from the slander (z).] As a general rule, any evidence may be given in behalf of the defendant to prove the absence of malice, with a view to mitigate the damages («). Accordingly he may show that he said, at the time he spoke the words, that he heard the slanderous matter from another person whom he named, and may prove the truth of this (&) ; or that he had copied the (s) Knigld v. Gihhs, 1 Ad. & Ell. 43 : cited ante, p. 33. (t) Ashley V. Harrison, 1 Esp. 49. See Haddan v. Lott, nhi sup. (u) Morris v. Langdale, 2 B. & P. 284 ; Kelly v. Partmyion, 5 B. & Ad. 645. {x) Guy V. Gregory, 9 C. & P. 584. (v) Moore v. Meagher, 1 Taunt. 39 ; [Davies and Wife v. Solomcn, L. R. 7 Q. B. 112 ; 41 L. J. Q. B. 10.] [(z) Alliop V. Allsop, 5 H. & N. 534 ; 29 L. J. E.\. 315 ; and see Eoherts V. Roberts, cited ante, p. 370. Whether a wife can sue for words occasioning the loss of the consortium of her husband, was disciissed but not decided, in Lynch v. Knight, 9 H. of L. Cases, 577 ; 2 Smith's L. C. 492, 6th ed.] (a) Pearson v. Lemailre, 6 Sco. N. R. 607. (h) Bennett v. Bennett, 6 C. & P. 588. DEFAMATION. 373 statement from another newspaper (c). But he cannot show that the defamatory matter appeared simultaneously in other papers (f/). And where the words profess to be an account of what took place in a court of justice, although this will be no defence unless the account is perfectly fair and accurate, still, even though the report is not correct, if it is an honest one, and intended to be a fair account of what really occurred, this will be ground for reducing the damages (e). We have seen That Le had before, that persisting in a plea of justification which is aban- f^^'^son to believe doned, or not proved, may be ground for increasing the damages. On the other hand, facts which go to support such a plea may be given in evidence in mitigation of damages, though they fail to prove the plea ; and that whether there is a plea of justification on the record or not ; and even where there has been such a plea, which has been withdrawn (/). Where, however, such facts would, if pleaded, be a complete bar to the action, they cannot be adduced even in mitigation of damages {g). This was probably the ground of the decision in Vesseij V. Pike (h), of which we have only a very meagre report, where evidence of this nature was rejected. In no case can facts so proved go in bar of the action, unless there is a plea to support them (/). So evidence that the plaintiff had libelled the defendant. That he had though no defence to the action, will go in reduction of |;''„f J'^^n^'"'''"" damages (Jc). But such libels must be shown to relate to the subject-matter of those published by the defendant (I). And he must prove that the libel which he complains of came to his knowledge before he libelled the plaintifi" (m). A very important question, which has been constantly General bad raised, and yet remains still undecided, is as to the admis- provocation. character. (c) Mullett v. HuUon, 4 Esp. 248 ; Saunders v. Mills, G Biugh. 213 ; [Davis V. Cutbmh, 1 F. & F. 487.] (d) 6 Bingh. 213. (e) Smith v. Scott, 2 C. & K. 580. (/) Chalmers v. ShacMl, 6 C. & P. 475 ; East v. Chapman, 2 C. & P. 570. (g) Specie V. Phillips, 5 M. & W. 2/9. (h) 3 C. & P. 512. (j) Charlton v. Watton, 6 C. & P. 385. (h) Finnerty v. Tipper, 2 Camp. 76 ; [Kelly v. Sherlock, L. R. 1 Q. 15. G86 ; 35 L. J. Q. B. 209 ; 7 B. & S. 480.] (0 May V. Brown, 3 B. & C. 113 ; Tarpley v. Blabcy, 2 Biugh. N. C. 437. (m) Watts V. Eraser, 7 Ad. & Ell. 223. 374 DEFAMATION. Evidence of truth of libel. Former recovery against a third party. Apology for libel in newspaper. Bibillty, in mitigation of damages, of evidence showing that defendant laboured under a general suspicion of being guilty of the oflFence charged in the libel. The question is ably discussed in a recent work on evidence (n), where all the authorities are collected. The conclusion arrived at by the learned author is, " that the weight of evidence inclines sHghtly in favour of the affirmative, even though the defendant has pleaded truth as a justification, and has failed in establishing his plea." In a late case, however, the opinion of the Court of Queen's Bench seemed on the whole against the evidence, and they decided that it could only be received as to reports existing at the time of the publication, otherwise the reports adduced to diminish damages might have been caused by the very slander for which the action was brought (o). Such evidence must, in any case, be confined to the particular trait which is attacked by the libel, and cannot refer to particular acts (p). Where there is a plea justifying a libel, it is no evidence in proof of its truth, that the same imputations had been pub- lished before, and that the plaintiff had submitted to them. The fallacy lies in the word " submission." It comes to this only, that he did not prosecute ; and there might be a great many reasons for his not proceeding to prosecute, — the anonymous nature of the article, not knowing whether it came fi"om a man of character, or the poverty of the party himself (q). Evidence of a mere collateral fact, as that the plaintiff had already recovered against the proprietor of another paper for inserting the same libel, cannot be given in mitigation of damages (r). [Where in an action for a libel contained in a newspaper the defendant pleads under 6 & 7 Yict., c. 9C, s. 2, that the (n) Tayl. Evidence, 315, 2nd ed., [364, 6th ed.] (o) Thompson v. Nye, 16 Q. B. 175. (p) Tayl. Evidence, 316, [364, 6th ed.] [In Ireland, where the slander im- puted to an officer that he had stolen a gold chain, evidence of the plaintiff's being generally reputed to have committed the act was rejected ; but evidence of general bad character, or of his having some vicious habit leading to the par- ticular act, was considered admissible ; Bell v. Parke, 11 Ir. C. L. R. 413. See further, Bracegirdle v. Bailey,! F. & F. 536.] {q) Reg. v. Newman, 1 E. & B. 268. (»•) Creevy v. Carr, 7 C & P. 64. BREACH OF PROMISE OF MARRIAGE. 375 libel was inserted without malice or gross negligence, and that a full apology was inserted, and pays money into Court by way of amends, if the jury find the apology not sufficient, the damages should be assessed irrespectively of the sum paid into Coui-t, and without considering that payment in any way as an admission of liability (s).] 8. Actions for breach of promise of marriage ought strictly Actions for to have been considered under the head of Contracts, in an ^^^'^^'^ of p™- earlier part of this work. They are, however, of so excep- tional a nature, and so closely connected with actions for seduction, as to the evidence which may be adduced, that I have thought it more convenient to defer the examination till now. It is quite needless to say that no attempt at fixing any measure of damages can be made in regard to this species of suit, or the other, just alluded to, which follows it. They stand on a par with actions for libel as to the range of topics in which counsel are allowed to indulge. Even the stereotyped direction of the judge, that the jury should give " temperate " damages, conveys no very definite idea to the mind. The circumstances which aggravate the damages in an Evidence of de- action of this sort are so obvious as to require no comment. du^^\*jf j^f" ' One important fact consists in the wealth and social position of the defendant, as it shows what the plaintiff has lost by the breach of contract {t). Accordingly we find in one case, where the action was brought by the gentleman against the lady, that 400/. was held not to be an excessive amount of damages : the fair one being, as the cold-blooded reporter says, " worth 3000/. when the plaintiff" courted, and after- wards, by the death of her brother, worth double that sum " (u). And so a verdict of 3500/. was supported in another case, where the defendant was a man of pro- perty (x). [(s) Jones V. MacHe, L. R. 3 Ex. 1 ; 37 L. J. Ex. 1.] (t) James v. Biddington, 6 0. & P. 590. [General evidence may be given of the defendant's property, but not proof of particular items ; Kerfoui v. Marsdcn, 2 F. & F. 160, per Wilde, B. j {u) Harrison v. Cage, Garth . 467. (x) Wood V. Ilurd, 2 Bingb. N. C. 166. ^76 BREACH OF PROMISE OF MARRIAGE. Aggravation by seduction. Evidence in mitigation of damage. When tlie action is barred. [Where the plaintiff had been seduced by the defendant, it was held no misdirection to tell the jury that they might take into consideration the plaintiff's lessened prospect of marrying another, and the difference of her position in returning to her mother's house, not as a virtuous and respected member of the family, but as a disgraced woman {y). It is evident, however, that unless a direction to a jury to this effect is put, to use the expression of Willes, J., " in the driest language " {z), a jury will be apt to interpret it into permission to give damages for the seduction as well as for the breach of promise of mar- riage,] Any evidence will" be admissible in reduction of damages, which palliates, though it does not excuse, the breach of promise ; or which proves that the plaintiff had no great loss in the matter ; or that the match was in any way unsuitable, and unlikely to have produced happiness. And here it is necessary to distinguish between facts which go to bar the action entirely, and those which merely serve in mitigation of damages. It is a complete defence to the action, that the defendant was induced to enter into or continue the connection by false representations, as to the circumstances of the family, or the previous life of the plaintiff, or even by a wilful suppres- sion of the real state of affairs upon these points {a) ; or that at the time of making the promise he was ignorant of her previous immoral life (b), even though she had only been guilty of a single act of unchastity, and at a distance of many years, and had since lived a perfectly correct life (c). So, where the plaintiff is a man, it will be a sufficient answer to show, that subsequently to her promise he had conducted himself in a brutal manner, and threatened to use her ill, for this gives her a right to say that she will noi commit her happiness to his keeping {d) ; or that he is a person of \_{y) Berry X. Da Costa, L. R. 1 C. P. 331 ; 35 L. J. C. P. 191.] [(2) L.R. 1 C. P., at p. 333.] (a) Wharton v. Lewis, 1 G. & P. 529 ; Foote v. Ilayne, ibid., 546. [In the absence of fraud it is no defence that the plaintiff was at the time of the promise engaged to another man, and concealed it from the defendant ; Beechey V. Brown, E. B. & E. 796 ; 29 L. J. Q. B. 105.] (6) Irving v. Greenwood, 1 C. & P. 350. (c) Bench v. Merrick, 1 C. & K. 463. (d) Leeds v. Cook, 4 Esp. 256. SEDUCTION. 377 proved bad character (e). So the existence of some bodily infirmity, to which the plaintiff is subject, which was not known at the time of the contract, will be a complete bar (/). [But it has since been held in the Exchequer Chamber that it is no defence that the defendant, after the promise, became subject to a disease which rendered him incapable of marry- ing without danger of his life {g). And upon the authority of that case it was held no defence that the plaintiff had been lunatic, which was not known to the defendant at the time of the contract (A).] On the other hand, unchaste conduct, known when the Evidence of promise was made, only operates in reduction of damages (/). ^uct^'^&c' '^°"" So mere grossness of manners, and want of feeling, are not grounds for breaking off the contract, nor even palpable want of affection. But all such circumstances are most important in testing the amount of injury the plaintiff has sustained. The mutual suitability of the parties, and the real affection felt by the plaintiff, may fairly be considered by the jury, when a man complains of having lost the society of one whom he appears never to have valued, and the pleasures of whose society he was little calculated to taste {k). The bad character of a man, when it merely rests upon report, without specific proof of facts, has been held to be mere evidence in mitigation of damages, and not a complete bar (^). In one instance, however. Lord Kenyon allowed general evidence of the immodest character of a woman to go in bar of the action. He said, that in such a case character was the only point in issue, and that was public opinion, founded on the character of the party. He therefore considered that what that public thought was evidence {m). 9. The action for seduction, properly so called, is rather Damages in an anomalous one. In form it purports to be merely an coifinecUo"c*om- action for the consequential damage arising from the loss of pensation for loss of service. (e) Baddeley v. Mortlock, Holt, N. P. 151. (/) Atchinson V. Baker, 2 Peake, 103. [{g) Hall V. Wright, E. B. & E. 746 ; 29 L. J. Q. B. 43 ; decided by four judges to three, the Court below having been equally divided.] [{h) Baker v. Cartwrighf, 10 C. B. N. S. 124 ; 30 L. J. C. P. 3G4.] {i) Bench v. Merrick, ubi sup. (k) Per Lord Ellen borough, Leeds v. Cook, 4 Esp. 257. (l) Baddeley v. Mortlock, ubi sup. (m) Foidkcs V. Sellway, 3 Esp. 236. 378 SEDUCTION. service, resulting tVom the act complained of. Ilenee the action will fail unless some loss of service can be shown (//). And where the loss of service arose from the illness of the daughter, which was not caused by the seduction, but by grief at being subsequently abandoned, the Court doubted whether the action could be maintained (o). The logical result would be, that damages could be given on no other ground. This is not the case however. It has been laid down, that actions of this sort are brought for example's sake, and although the plaintift''s loss may not really amount to the value of twenty shillings, yet the jury do right in giving liberal damages {p). And so Lord Kenyon said, "In point of form the action only purports to give a recompense for the loss of service, but we cannot shut our eyes to the tact, that this is an action brought by the parent for an injury to her child. In such a case I am of opinion that the jury may take into consideration all that she can feel from the nature of the loss. They may look on her as losing the comfort, as well as the service of her daughter, in whose virtue she can feel no consolation ; and as the parent of other children, whose morals may bo corrupted by her example {q). And not only the wounded feelings of the plaintiff, but also the dishonour resulting from the act, may form part of the estimate of damages'' (/•)• Damages ought to be governed by a due regard to the situation in life of all the parties (s). Evidence of pro- The circumstances of premeditation or fraud, by which the act was accomplished, will of course weigh heavily with the jmy in assessing damages. It has been said, however, that evidence cannot be received that defendant effected his object by means of a promise of marriage. Lord Ellenborough said, " You may ask her whether he paid his addresses in an [(n) In tlie case of a minor, a right to the service is sufficient; ami wlien slie ceases to bo under the control of a real master, and intends to return to her father's house, she is constructively in his service ; Ttrry v, JJutchinton, L. K. 3 Q. B. 599 ; 37 L. J. Q. B. 257.] (o) Boyle v. Brandon, 13 M. & W. 73S. (p) Per Wilmot, 0. J., Tullidge v. Wade, 3 Wils. 18. (q) Bedford v. 31'Eoid, 3 Esp. 119. (r) Soiitkcrmcood v. liamsdeit, Selw. N. P. 1127, 12th ed. ; Andrews v. Ad-ei/, 8 C. & P. 7. [See Berry \. Jja Custa, ante, p. 370.] (s) Andrews v. Askey, ^ibi !>up. mise of marriage. SEDUCTION. 379 honourable way; to admit evidence of a direct promise of marriage, would be to allow the mother to recover damages for a breach of that promise, upon the testimony of the daughter" (/). But the evidence has been received in several cases, on the ground that otherwise it might appear to the jury that the daughter was a wanton (w). In one case the distinction was said to be, that such evidence could not be relied on, as a prominent part of the case, for the purpose of obtaining specific damages, but that it might be used col- laterally to the main object of the action, with a view to the vindication of the young woman's character (x). No evidence of general good character for chastity is Evidence of admissible in aggravation of damages, until an attempt has eeneral chastity, been made to prove the contrary (y). It has even been laid down, that imputations cast upon her good fame in cross- examination are not sufficient gi-ound to admit evidence in rebuttal (z). The contrary rule has been laid down in some later cases. In one, the cross-examination of the girl went to show that she had conducted herself immodestly towards the defendant before the seduction, and kept improper company. In the other, she was questioned as to her having had criminal intercourse with other men. The plaintiff was allowed to prove her general good character and modest deportment, and the general respectability of the family (a). Evidence may be given, in reduction of damages, of the Mitigation of general indelicacy and levity of character of the female des'tSJS.'""' seduced (b) ; and specific instances of intercourse between her and other men may be deposed to (c) ; Ijut the daughter her- self cannot be questioned as to such acts (d). Any declara- tions made by herself, as for instance, that a third i3erson (t) Dodd v. Norris, 3 Camp. 519 ; Tullidge v. Wade, 3 Wils. 18. {u) Watson v. Bayless ; Murgatroyd v. Muryatroyd, 3 Stark, Ev. 990. {x) Elliott V. Nicklin, 5 Pri. (541. (y) Bamfield v. Massey, 1 Camp. 460. (2) Dodd V. Norris, 3 Camp. 519. (a) Bate v. Jlill, 1 C. & P. 100 ; Murgatroyd v. Murgatroyd, 2 St. Ev. 307 ; Brown v. Goodwin, It. Cir. Rep. 61. (b) Bamfield v. Massey ; Dodd v. Norris, ubi sup. (c) Verry v. Watkins, 7 C. & P. 308. (d) Dodd V. Norris, vbi sup. [But, from the analogy of the decisions in affiliation cases, it would seem that such questions may be put, and even evi- dence be given in contradiction, if it goes to show that some one else may have been the father of the child ; Garbutt v. Simpson, 32 L. J. M. C. ISO ; and see R. v. Gibbons, 31 L. J. M. C. 98] 380 ADULTERY. Negligence of the plaintiff. Seducing from service. Adultery. was the father of the child ascribed to the defendant, may however be proved, provided she has been given an oppor- tunity of explaining or denying them (e). Gross negligence on the part of the plaintiff may also be proved, with the same view. In one case, where he had suffered the defendant to continue his visits, as a suitor to his daughter, though he knew him to be a married man, on an alleged probability of his obtaining a divorce, and after he had'' been cautioned against him, Lord Kenyon directed a nonsuit (/). Damages for the mere seducing away of an actual servant from the employment of the master, of course rests upon quite a different basis. They would be regulated by the actual money loss resulting from the act, unless where strong evi- dence of malice was shown. In estimating the injury sustained, the jury are not limited to the time during which the servant was bound to continue with his master. Where the workmen of a piano-maker were enticed away from him ; it appeared that they were engaged for no fixed time, but worked by the piece. His income from his trade was 800^. per annum, and a verdict for IGOO?. was held not to be excessive (g). No action will lie against the seducer of a servant, when the master has recovered against the latter a stipulated penalty, agreed on in case of his leaving the service (h). 10. [By the act which established the present Divorce Court, 20 & 21 Vict. c. 85, actions for criminal conversation were abolished (/). It is, however, by the same act provided that a husband may in a suit for dissolution of marriage, or for judicial separation, or in a petition limited to such object only, claim damages from any person on the ground of adultery with the petitioner's wife ; and the claim is to be tried on the same principles, and subject to the same rules, as actions for criminal conversation were previously tried and decided in Courts of Common Law. After the verdict the (e) Carpenter v. Wall, 11 A. & E. 803. (/) Reddie v. ScooU, 1 Peake, 240. (g) Gunter v. Astor, 4 Moo. 12. [Tlie action lies for enticing away the plaintiff's daughter, though there may have been no binding contract of ser- vice ; Evans v. Walton, L. R. 2 C. P. 615 ; 36 L. J. C. P. 307.] (k) Bird V. Randall, 3 Burr. 1346. [(i) S. 59.] ADULTERY. 381 Court has power to direct in what manner the damages are to be applied, and to direct the whole or a part to be settled for the benefit of the children of the marriage, or for the maintenance of the wife (k)]. The general principles upon which damages were given Grounds of in crim. con. were laid down with great clearness by an '^^.'"''^"ll" " •' cnm. con. eminent judge. He said, "The action lies in this case for the injury done to the husband in alienating his wife's affections, destroying the comfort had from her company, and raising children for him to support and provide for ; and as the injury is great, so the damages given are commonly very considerable. But they are properly increased or dimi- nished by the particular circumstances of each case. The rank and quality of the plaintifi" ; the condition of the de fendant ; his being a friend, relation, or dependant of the plaintiff ; or being a man of substance ; proof of the plaintifl and his wife having lived comfortably together before her acquaintance with the defendant, and her having always borne a good character till then ; and proof of a settlement or pro- vision for the children of the marriage, are all proper circum- stances of aggravation (/)." It will only be necessary to add a few words in elucidation of this summary. As almost the whole foundation of this action consisted in the loss of the wife's society and affection, it was most im- portant with a view to damages, to ascertain what the extent of this loss was, and how far it had been caused by the acts of the defendant. Where the plaintiff had entirely given up the society of his Separation be- wife, he could not sue in respect of acts of adultery subse- ^^'^wifc.'' quent to the separation (m) ; but it was different where, though separated, he had still retained a right to the assistance of his wife, in the management and care of his family (w). It \(k) S. 33. See Comyn v. Comyn and Humphreys, 32 L. J. P. M. & A. 210. The insertion of a claim for damages does not affect the disci'etion as to costs given to the Court by s. 51 ; West v. West and Parker, L. R. 2 P. & D. 196 ; 40 L. J. P. & M. 11.] (0 Bull. N. P. 27. [In Bell v. Hell and Marquis of Anglesey, 29 L. .1. P. M. & A. 159, the jury were allowed to take the marriage settlement into consideration in assessing the damages, there being no children of the marriafe, and the Court therefore ha^^ing no power to deal with the settlements under 22 & 23 Vict, c (31, s. 5.] (m) Wcedon v. Timbre!!, 5 T. R. 360. (n) Chambers v. Cauljicld, 6 East, 214. 382 ADULTERY. Evidence of the terms upon which they lived. was held too, that even a complete separation, if without deed, would be no bar to an action, since there was nothing to prevent the plaintiff instituting a suit to regain the society of his wife (o). Of course the same rule applied more strongly where the 'separation was a mere matter of mutual con- venience ; as where the husband and wife were living in different families (^). Such facts, however, would go strongly to reduce the damages. So it was considered in one case, where the plaintiff had married an actress, but concealed his marriage, and visited her very seldom, she continuing to live with her mother, and pursue her profession. Tindal, J. C, said, " There appears in this case to have been less of that intercourse between husband and wife, to compensate for the loss of which suits of this nature are instituted, than I have ever met with " (q). There is a curious case in which the husband had never known of his wife's infidelity till the eve of her death, when she herself disclosed it to him, and he then continued to treat her kindly till she died. It was held that the action was maintainable. Coleridge, J., said, in charging the jury, " The only grounds on which you ought to give damages to the plaintiff are, the shock which has been given to his feelings, and the loss of the society of his wife down to the time of her death" (r). Another mode of testing the loss sustained by the husband, was to ascertain the amount of enjoyment he used to derive from the society of his wife, and the terms upon which they lived with each other. With this view, not only their conduct when they were together, but even their letters were admissible, since the latter constituted the only mode of proof when they were separated. Letters were evidence for this purpose, even though written to a third party, and containing other matter which would not be evidence (s). But it was necessary to show that the letters were written at the time they bore date, and (o) GraJiam v. Wiglei/, per Abbott, C. J., 2 Rop. Husb. & W. 323. (p) Edwards v. Crock, 4 Esp. 39. (q) Calcrafl v. Lord Harhorour/h, 4 C. & P. 499. (r) Wilton v. Webster, 7 C. & P. 198. (s) Willis V. Bernard, 8 Bingh. 376. [As to lettera between husband and wife, see Stone v. Stone and Applcton, 34 L. J. P. M & A. 33.] ADULTERY. 383 before suspicion was entertained of the wife's misconduct (/). And their dates were not sufficient proof of the time they were written (u). Evidence might also be received of the wife's complaints as to her husband's ill treatment of her, though not made in his presence, as showing the manner in which the parties lived together. That is made up of a number of acts of the two parties, of which such complaints form a part {x). Lord Kenyon, on two occasions, held that open infidelity Infidelity of on the part of the husband went in bar of the action (y). ^^^ ^'^ ' Lord Alvanley, however, decided that it only went in mitiga- tion of damages. " The fact," said his lordship, " that the wife had been injured by the husband's misconduct, could not warrant her in injuring him in that way which was the keenest of all injuries " (z). [A discretionary power is now given to the Court to pronounce a decree for dissolution of marriage where the petitioner has himself been guilty of misconduct («).] The plaintiffs loss depended also, of course, on the Character of previous character of his wife. Accordingly evidence that ^'^^' the wife was living as a prostitute, or that she had committed previous acts of misconduct, before the adultery charged, and without the husband's privity, went in mitigation of damages (b). But acts of this sort, committed subsequently, could not be used for this purpose, for they might be the direct result of the degradation brought upon her by the defendant (c). This limitation must be appended to the words of a learned judge, when he said, " With respect to damages, if you are of opinion that the plaintiff's wife would be of no service, but on {t) Edwards v. Crock, 4 Esp. 39 ; Trelavmey v. Coleman, 1 B. & A. 90. (m) Hoidiston y. Smijth, 2 C. & P. 24. (x) Winter v. Wroot, 1 M. & Rob. 404. {y) Start V. Marquis of Blandford ; Windham v. Wycombe, 4 Esj). 17. (2) Bromley v. Wallace, 4 Esq. 237. [A witness cannot be cross-examined as to any act of adultery, unless he or she has already given evidence in dis- proof of it (32 & 33 Vict. c. 68, s. 4); therefore a husband petitioning for dissolution of marriage cannot, with a view to mitigation of damages, be asked questions tending to show that he had been guilty of adultery in the lifetime of his first wife ; Bahhage v. Babhage and Manning, L. R. 2 P. & D. 222.] \{a) 20 & 21 Vict. c. 85, s. 31. As to the exercise of the discretion, see Latour V. Lalour and Weston, 31 L J. P. M. & A. 66 ; 2 Sw. & Tr. 524 ; Goodc V. Goode and Humson, 30 L. J. P. M. & A. 105 ; 2 Sw. & Tr. 253.] (h) Smith V. Allison, Bull. N. P. 27. (c) Elsam v. Faucett, 2 Esp. 562. >0i ADULTERY. Huslianil liimself to blame. Defendant mis- led or solicited. the contrary a disservice to him and his children, a small amount of damages will be sufficient " (d). Where the husband was himself, knowingly, the cause of his own disgrace, no action at all lay (e). But evidence of mere carelessness, and neglect of the husband, in not putting a stop to culpable familiarities went merely in reduction of damages, unless amounting to connivance (/). The plaintilF was en- titled to recover unless he had in some degree been a party to his own dishonour, either by giving a general license to his wife to conduct herself as she pleased with men generally, or by assenting to the particular act of adultery with the de- fendant, or by having totally and permanently given up all the advantage to be derived from her society (g). And when connivance was set up, the wife's own statements were ad- missible, to show what may have misled the husband in per- mitting that conduct which led to the result (h). [So under 20 & 21 Vict. c. 85, s. 30, if the petitioner has been an accessory to or has connived at the adultery, the petition must be dismissed. Connivance has been defined to be something more than mere negligence, inattention, or indifference. There must be an intention on his part that his wife should commit adultery, or at any rate a willing consent (/).] Even where there was no pretence of connivance on the part of the plaintiff", damages were reduced by anything which showed that the defendant was led into the crime by circmn- stances not originating with himself. Therefore, in a case mentioned before, where the woman was an actress, married privately, living apart from her husband, in the pursuit of her profession, Tindal, C. J., said, " You may consider, in esti- mating the damages, how far the plaintiflF interfered to protect his wife from the temptations to which, by her profession, she was exposed. You may also consider whether the defendant knew that she was a married woman, or miffht conclude that she (d) Winter v. Henn, 4 C. & P. 494. (e) Smith v. Allison, ubi sup. (/) Duherley v. Gunniiif/, 4 T. R. G55. (g) Winter v. Henn, ubi sup., per Aldersou, B. (h) Boare v. Allen, 3 Esp. 276. [{i) Allen V. Allen, 2 Sw. & Tr. 108, n. (1) ; Marris v. Man-is, 2 Sw. & Tr. 530 ; 31 L. J. P. M. & A. 69 ; Mli/att v. EUyatt, Taylor, and Halse, 3 Sw. k Tr. 504 ; 33 L. J. P. M. & A. 137 ; Adams v. Adams and Colter, L. R. 1 P. & D. 333.] ADULTERY. 385 I was still single, and attending as an actress at the theatre" (k). And so the fact that the defendant was first solicited by the wife had the same effect (I). We have seen that the defendant's condition, and his being Evidence of a man of substance, were relied on by Buller, J., as matters defendant's which properly enhanced the damages (m). In one case, how- ^'^''^^^' ever, Alderson, B., refused to admit evidence of the amount of the defendant's property. He said that in actions of this kind, a plaintiff is entitled to as much damage as a jury shall think is a compensation for the injury he has sustained, and the amount of the defendant's property is not a question in the cause (n). The two dicta do not conflict at all, if the latter is taken as merely excluding specific evidence of the defendant's income. If such evidence were allowed, he ought to be let in to show that his income was over-rated, and a number of collateral issues would at once be raised. If how- ever, it means that general evidence cannot be given, to show whether the defendant is a pauper or a millionaire, it seems hard to agree with it in theory, and impossible to reconcile it with practice. It is quite at variance with the principle, which rests on high authority, that damages in these cases are intended as a penalty, as well as a compensation (o). This they cannot be, unless they bear a proportion to the means of the de- fendant. Even as a matter of mere compensation it may be doubted whether such a view is fully sustainable. A social injury cannot really be represented by any sum of money. The amount is merely a scale by which the jury express their idea of the degree of suffering caused. But ought not the sacri- fice imposed on the defendant to bear some ratio to the suffer- ing caused to the plaintiff" ? These are things commensurate in their nature. If a money standard is to be applied to the one, it ought also to be applied to the other. Suppose the jury, knowing nothing of the circumstances of the defendant, assess damages at 1,000?., when he is not worth 100/. This amounts simply to his ruin. Is it fair, as a mere matter of compensation, to offer the total extinguishment of the wrong- (k) Calcraft v. Lord Harhorouyh, 4 C. & P. 499. (/) Elsum V. Faucett, 2 Esp. 562. (m) Ante, p. 381. (h) James v. Biddhujton, 6 C. & P. 590. (o) See ante, p. 25. 386 ADULTERY. Former recovery where there were several para- mours. doer as a satisfaction for a partial, though severe injury, to the person wronged ? We have, in mercy, abandoned the old law, which said, " an eye for an eye, and a tooth for a tooth ; " but this would be giving a whole life for an eye, or something not quite so valuable. It may be considered, too, whether such a course would not be a violation of the spirit, if not of the letter, of Magna Charta, which provides that no freeman shall be amerced to the utter destruction of his means of subsistence {p). [Since 20 & 21 Vict. c. 85, it has been ruled that the jury have nothing to do with the co-respondent's fortune unless he has used it as a means of seduction, in which case they may take it into account in considering the value of the wife of whom the petitioner has been deprived (q).] A former recovery against one defendant for adultery, was no bar to an action against another defendant, for a similar injury during the same time (r), for each might have inflicted a very different degree of wrong upon the plaintiff. Accord- ingly, upon a trial, in which the defendant was the plaintiffs own coachman, and where there was evidence that the wife had been criminally connected with others also. Lord Ellen- borough directed the jury to award damages, proportioned barely to so much of the plaintiff's loss of comfort as the de- fendant's misconduct might be supposed to have occasioned ; but not to the whole of the injury the plaintiff had suffered, which there seemed reason to suspect might be attributed to others in a superior condition of life, much more than to the solicited coachman (s). [In directing in what manner the damages should be applied, the Court for Divorce and Matrimonial Causes has most usually allowed the petitioner his costs which have not been taxed against the co-respondent. With the residue, provision has been made for the maintenance of the wife (dum casta vixerit), and children by purchasing annuities for them or by investing the amount, the wife taking the interest, and the principal sum passing to (p) Salvo Contenemento ; that is, preserving to the soldier his amis, and to the scholar his books ; 2 Inst. 29. [(?) Cowinfi V. Coioinc) and WoUen, 33 L. J. P. M. & A. 149 ; Forater v. Forsler and Berridge, lb., 150, n.] (»•) Gregson v. M'Taggart, 1 Camp. 415. (s) Gregson v. Theaker, 1 Camp. 415, n. ADULTERY. 337 the cliildrcn at her death (/). It has been ruled in the same Court that if the co-respondent does not appear, the jury are bound to take for granted that he committed the adultery. Therefore even when they found that the respondent had not committed adultery with the co-respondent they were directed to assess the damages at a nominal sum against the latter (ti). If the co-respondent appears but does not file an answer, he cannot cross-examine witnesses or address the jury in mitio-a- tion of damages, but after decree he may re-call and cross- examine witnesses and address the Court upon the question of costs, as for example by shewing that the co-respondent did not know the respondent to be a married woman (x).] [(t) See Latham, v. La'hani and Gethin, 30 L. J. P. M. & A. 43 ; Clarke V. Clarke, 31 L. J. P. ]M. & A. 61 ; Narracott v. Narracott and 'llesketh, 33 L. J. P. M. & A. 132 ; BiUingay v. BiUingay and Thomas, 35 L. J. P. M.' 84 ; Callwell v. Callivell and Kennedy, 3 Sw. & Tr. 259 ; Furster v. Forster and Berridge, 3 S. & T. 158 ; S. C. 4 S. & T. 131 ; 34 L. J. P. M. & A. 88. In Taijlor v. Taylor and Wolters, 39 L. J. P. & M. 23, uotliing was given to the wife. And where there had been no issue of the marriage, and the respondent was living with the co-resi)ondent, the Coiu-t directed the damages to be paid to the petitioner ; Evans v. Evans and Bird, L. R. 1 P. & D. 36.] [(m) Stone V. Stone and Applelon, 34 L. J. P. M. & A. 40, n. And evidence is admissible to aggravate the damages as against the co-respondent : lb. ; 3 Sw. & Tr. 60S.] [(x) Lyne v. Lijne and Blackncy, 37 L. J. P, M. A. 9.] CHAPTER XVI. When executors may sue. 1. A dions hy avd against Executors. 2. Actions hy Trustees in Bank- ruptcy. 3, Actions by Principal against Agent. I PROPOSE to conclude the portion of this work which treats of the measure of damages, by examining some cases in which the parties stand in a peculiar relation to each other, which affects their right to sue, and the amount they may recover. Such a relationship exists in the case of actions by trustees in bankruptcy, and by and against executors. In all these, the damages which can be obtained may be modified, more VI less, by the fact that the party to the suit is not the per- son originally entitled to sue or be sued, but one placed in that position by law. So far as they are not modified in this manner, they come under the ordinary rules laid down previously. Damages in actions by a principal against his agent are in general exactly the same as they would be where the parties were unconnected with each other. The case, how- ever, admits of some remarks peculiar to itself, for which this chapter seems to present the most proper place. I. It would be impossible, without wandering fi'om the strict object of the present treatise, to state the cases in which actions vrill lie by and against executors. The subject has been so exhausted and discussed in well-known works upon the sub- ject, that it would be waste of time to enter upon it here at any length (a). The broad principle upon which actions by executors rests, is, that they must be brought in respect of some wrong which aflFects the personal estate of the deceased. Hence an (a) See Wms. Exors. 738, 1590, 6tli ed. ; 1 Wms. Sauod. 216, a. ; [1 Wms. Notes to Saund. 239.] ACTIONS BY EXECUTORS. 389 executor may sue an attorney for neo^ligence in investigating the title of an estate, about to be conveyed to the testator, by means of which he took a bad title, and was unable to sell the property. And the Court remarked, that if a man con- tracted for a safe passage in a coach, and sustained an injury by a fall, by which his means of improving his personal property were destroyed, and that property in consequence injured, the executor might sue in assumpsit for the conse- quences of the breach of contract (b). And so the executor may sue for breach of a contract to complete the sale of land, whereby the deceased lost the benefit of the purchase, and was put to expense in endeavom-ing to procure the title, and was deprived of the use of his money deposited (c). Nor is it necessary to prove actual and specific damage, provided the breach of contract might possibly have caused such damage. Therefore, the executor may sue for breach of covenant not to fell or lop timber-trees, committed during the life of the testator, though none of the timber was removed by the defendant {d). And so upon a covenant to repair, broken before the death of the covenantee (e). In such a case, though the covenant relates in terms to the realty, a breach of it is a direct injury to the personal estate ; and this is the sort of injury which is primarily contemplated by it. But it is different where the primary object of the covenant is to preserve the real estate in specie. There the heir, and not the executor, is the person to sue even for abroach in the life- time of the testator, unless some consequential damage to the personalty has ensued. So it was held, where the actions were for breach of covenant for title and right to convey, and for fm-ther assurance (/). Lord Ellenborough, C. J., said (g), " In this case there is no other damage than such as arises from a breach of the defendant's covenant that he had a good title, and there is a difficulty in admitting that the executor can recover at all without also allowing him to recover to the (I) Kni'/ht V. Quarks, 2 B. & B. 102. [And see per Willes, J., in Alton V. Midland Ry. Co., 19 G. B. N. S. at p. 242 ; 34 L. J. C. F. at p. 298.] (c) Orme v. Brouqhton, 10 Bingli. 533. {d) Raymond v. Fitch, 2 C. M. & R. 588. (e) Rirketts v. Weaver, 12 M. & W. 718. (/) Kingdon v. Nottle, 1 M. & S. 355 ; King v. Jones, 5 Taunt. 418 ; 4 M. & S. 188, affirmed on eiTor. ^' immediate reference to pain felt by the bankrupt in re- spect of his body, mind, or character, and without imme- diate reference to his rights of property. Thus the [trustee] cannot sue for breach of promise of marriage, seduction, defamation, battery, injury to the person by negligence —as by not carrying safely, not curing, not saving from imprisonment by process of law ; even though some of these causes of action maybe followed by a consequential diminution of the personal estate, as where by reason of a personal injury a man has been put to expense, or has been prevented from earning wages or subsistence ; or where by the seduction the plaintiff has been put to expense (s) ; also the right of action does not pass in respect of wages earned by the bankrupt upon a hiring after the bankruptcy ; also the right of action cannot be made to pass to the [trustee] in respect of contracts uncompleted at the time of the bankruptcy, by their adoption and completion thereof, where the personal service of the bankrupt is of the essence of the contract {t). But although unless there has uciuii.iujji/ lo v^i , • • 1 1 p been an agree- a right of action for not marrying or not curing, m breach ot ^^^^ ^^ ^.^^ an agreement to marry or cure, would not generally pass to ^^^J^'j;^^- the [trustee], a right to a sum of money, whether ascertained (r) BecMamr. Drake, 8M. &W. 846 ; 11 M. & W. 315 ; 2 H. L. Ca. 579. (s) Per Parke, B., 2 H. L. Ca. 626. {t) Per Erie, J., 2 H. L. Ca. 603, 604. 408 ACTIONS BY TRUSTEES IN BANKRUPTCY. Trespass to land or goods in his possession. Nominal da- niases. When the final loss to the estate is the criterion of damages. or not, expressly agreed to be paid in the event of failing to marry or cure, would pass. The agi-eement of the parties that money shall be paid as compensation, makes the right to recover the money a part of the personal estate of the bank- rupt, as much as a recovery, before the bankruptcy, of a judgment in an action for an injury to the person or character of the bankrupt, would do («). So rights of action for trespass to lands or goods in the actual possession of a trader, do not pass to his [trustee] if he becomes bankrupt, because those rights of action are given in resi^ect of the immediate violation of the possession of the bankrui)t, independently of his rights of property, and are an extension of the protection given to his person, and the primary personal injury to the bankrupt is the principal and essential cause of action (x). But Wilde, C. J., in reference to this doctrine, said, " I apprehend that if the trespasser has done actual damage to the personal estate of the bankrupt, as well as com- mitted a trespass on his possession, there is no authority which decides that assignees may not maintain an action in respect of the diminution in value, or injury to the chattels, that have passed to them under the bankruptcy " (y). But although damages cannot be given for injuries which are merely personal to the bankrupt, it by no means follows that actions can only be brought where substantial damages can be recovered. Even where there is no actual damage proved, or where the damage is merely nominal for a breach of the contract, still if that is in respect either of property or of a proprietary right, such as service or work and labour, even in that case it passes (2). Wliere the gist of the action is the loss to the estate, of course the damages are measured by the loss which has accrued, or is likely to accrae at the time of action brought. The bankrupt had contracted for the purchase of iron, and given bills for the amount. The contract was broken by the (u) Pej-Maule, J., 2 H. L. Ca. 622. (x) Per Cresswell, J., ibid. 613. (y) Ibid. 634. [As feo whether the bankrupt can sue for special damages resulting to himself, apart from the pecuniaiy damage resulting to his estate, see Rogers v. Spence, 12 CI. & F. 700; Hodgson v. Sidney/, L. R. 1 Ex. 313 ; 35 L. J. Ex. 182 ; Morgan v. Steble, L. R. 7 Q. B. 611]. (s) Per Lord Brougham, ibid. 640. ACTIONS BY TRUSTEES IN BANKRUPTCY. 409 vendors while the bills were still current. Subsequently the purchaser became bankrupt and the bills were dishonoured, and after sucli dishonour his assignees sued for the non- delivery of the iron. At the time the contract was broken there was no difference between the contract and market- price. The plaintiffs claimed as damages the whole value of the iron, on the ground that their rights were the same as those of the bankrupt had been, at the time the contract was broken. That at that time he was entitled to recover the full value, since the bills were then current, and while current operated as payment. The Court, however, held that the parties were in the same situation as if no bills had been given, or the contract had not been to pay by bills. And, there being no difference shown between the market-price at the time of default and the contract price, the vendees could only have recovered nominal damages ; no more, therefore, could the assignees (a). In another case, H. before his bankruptcy lent the defendant a phaeton on hire, and the latter by his negligence injured it. The phaeton had been hired by H, himself from a third party, to whom it was sent back, who repaired it and proved for the amount against the estate. It was held that the assignees might sue for breach of the contract to use the phaeton in a proper manner. Tindal, C. J., said, "As to the question of damages, if H. before his bankruptcy had done the necessary repairs himself, or had paid for them when done, he would undoubtedly have been entitled to the whole sum which was laid out ; or if his estate had actually paid, or had been proved ever likely to pay, any part of the amount proved against it, such proportion would have been the measure of the damages sustained by the bankrupt's estate. But as there is no proof to this effect, the consequence appears to us to be, that the plaintiffs are entitled to nominal damages for the breach of a contract, on which they had the right to sue, and where no actual damage is proved" (b). On the other hand, where a right to recover a specific sum When it is not. has once vested in the bankrupt, as by breach of an agreement (a) Valpy v. OaMey, 16 Q. B. 941 ; 20 L. J. Q. B. 380. [So assignees for value suing in the bankrupt's name, but for their owti benefit, have been held under similar circumstances to be only entitled to nominal damages ; Gri:ffi,ths V. Perry, 1 E. & E. 6S0 ; 28 L. J. Q. B. 204.] (6) Porter v. Vorley, 9 Bingh. 93, 95. 410 ACTIONS BY TRUSTEES IN BANKRUPTCY. to apply money to a particular purpose, or to return the pro- ceeds of a bill, this right passes to the [trustee] unaffected by the subsequent bankruptcy; and it makes no difference that the money wrongfully retained by the defendant has in fact been applied by him in discharge of a debt due to himself from the bankrupt, so as to leave the whole amount of claims upon the estate the same as it would have been had the money been pro- perly applied. The [trustee is] still entitled to recover the entire amount originally due (c). A fortiori will [he] be entitled, where the act complained of has caused a diminution in the bankrupt's estate; as, for instance, where the bankrupt lodged money with the defendants to apply in payment of his rent, and in consequence of their not applying it as directed, the landlord distrained his goods for the amount (cl). Right to sue for The [trustee], as has been stated above, [has] no right to sue jjis personal f^j. ^.j^g proceeds of the mere personal labour of the bankrupt, due after his bankruptcy [e); though, if a person in his situa- tion should gain a large sum of money or considerable effects, then such money or effects would undoubtedly belong to his [trustee] (/). But this rule only applies to what may be strictly termed personal labour. Therefore, where the plaintiff was a furniture broker, and had been employed by the defendant in removing his goods, in the course of which employment the plaintiff procured vans, supplied packing cases, and employed five or six men in the packing, unpacking, and conveyance of the property ; and likewise cleaned and repaired some furniture, and found materials for this purpose; it was held that his claim on this account was not a matter of personal labour, and that a payment to the assignees was good(^). The same decision was given where it appeared that the plaintiff was a medical practitioner, who had become bankrupt ; afterwards, by an arrangement with a friend who had purchased his stock of medicines, he continued in possession of them on credit, carrying on his business as before, and was supplied with fresh (c) Hill V. Smith, 12 M. & "W. 618 ; Alder v. KeigUey, 15 JI. & W. 117. See the facts of these cases, ante, j^p. 68, 69. (d) Hill V. Smith, iili sup. (e) Per Lord Campbell, C. J., 2 H. L. Ca. 043 ; Cliippendall v. Tomlinson, 4 Dough 318, 322, n. (/) Per Buller, J., 7 East, 57, n. ; per Lord Alvanley, Ucsne.y. Stevenson, 3 B, & P. 578. (c/) Orofton v. Poole, 1 B. & Ad. 508. ACTIONS BY PRINCIPAL AGAINST AGENT. 411 medicines on credit. The debt was contracted under these circumstances, the plaintiflP attending the defendant, giving him the benefit of his skill, and furnishing the medicines ■which he thought necessary. The Court thought this came within the case of Crofton v. Poole, and that it would be extending the principle laid down in Ghippendall v. Tomlinson far beyond what was reasonable to apply it to such a state of things (7i). [When a right of action of a bankrupt's wife is of such a Right of action character that if vested in the bankrupt alone it would have ° ^ ®- passed to his trustee, the bankrupt's interest in it passes to the trustee (i). It was held that a partner might sue jointly with the assignees Bankruptcy of of a bankrupt partner to recover the proceeds of bills belong- i^^^"*"*^^- ing to the partnership fraudulently indorsed by the bankrupt in satisfaction of his private debt to a person aware of the fi'aud (^).] III. Actions by Principal against Agent. Whenever an agent violates his duties or obligations to his "^^en an action principal, whether it be by exceeding his authority or by posi- tive misconduct, or by mere negligence or omission in the proper functions of his agency, or in any other manner, and any loss or damage thereby falls on his principal, he is respon- sible for it, and bound to make a full indemnity. In such cases it is wholly immaterial whether the loss or damage be direct to the property of the principal, or whether it arise from the compensation which he has been obliged to make to third parties in discharge of his liability to them, for the acts or omissions of his agent. The loss or damage need not be directly or immediately caused by the act which is done, or which is omitted to be done. It will be sufficient if it be fairly attributable to it, as a natural result, or a just consequence. But it will not be sufficient if it be merely a remote conse- quence, or an accidental mischief ; for in such a case, as in many others, the maxim applies. Causa proxima, noti remota, spectatur. It must be a real loss or actual damage, and not merely a probable or possible one. Where the breach of (h) Elliot V. Clayton, 16 Q. B. 581. Ui) Richhell V. Alexander, 10 C. B. N. S. 324 ; 30 L. J. C. P. 268.] rifc) Heilbut V. Nevill, L. R. 4 C. P. 354 ; 38 L. J. G. P. 273 ; affirmed in Ex. Cli. L. R. 5 C. P. 478 ; 39 L. J. C. P. 245.] 412 ACTIONS BY PRINCIPAL AGAINST AGENT. duty is clear, it will, in the absence of all eyidence of other damage, be presumed that the party has sustained a nominal damage (0- The above principles, quoted fi-om the work of an eminent judge, are in fact equally applicable to any other case where compensation is sought for a breach of contract, and present an accurate summary of the general theory of damages. Another rule, however, must be added, which we have seen before applies also to the case of shcrilfs and attornies (m), viz., that even though a breach of contract is proved, still if its perfonnance could have been of no possible benefit to the plaintiflP, and therefore its non-performance could have caused him no possible injury, the action will altogether fail. A few cases in illustration of each of these points will be sufficient upon this branch of the subject. When a loss has If an agent should knowingly deposit goods in an improper arisen from his place, and a fire should accidentally take place, by which they ^'^^ ^^^ ' are destroyed, he will be responsible for the loss (n). And so where a barge, upon which the plaintiff's goods were placed, deviated from her course, and during the deviation a tempest occm-red, in consequence of which she was lost, it was held that the owner of the barge was liable for the value (o). In both of these cases the fire and the tempest might equally have caused the loss had the defendant perforaied his duty. But Tindal, C. J., stated the answer to the objection to be, that no wrong-doer shall be allowed to qualify or apportion his own wrong, and that as a loss has actually happened while his wi'ongful act was in operation and force, and which is attributable to his wrongful act, he cannot set up as an answer to the action the bare possibility of a loss, if his wrongful act had never been done. It might admit of a different construc- tion, if he could show, not only that the same loss raiglit have happened, but that the same loss must have happened if the act complained of had not been done. So where a party has undertaken to insure goods, and has neglected to insure them altogether (p), or has insured them so negligently, that the (l) Story, Agency, § 217, c. (m) Ante, pp. 355, 359. {n) Story, Agency, § 218 ; Caffreyv. Darhy, G Vcs. 496. (o) Davis V Garrett, 6 Bingh. 716. Qj) £x parte Bateman, 20 Jur. 265 ; 25 L. J. Bankr. 19. ACTIONS BY PEINCIPAL AGAIKST AGENT. 413 plaintiff cannot recover against the underwriters, he will be liable for all the loss that has actually happened (q). Accord- ingly where a broker, employed to effect insurances, omitted to cormnunicate a material letter, in consequence of which the assured failed in actions against some underwriters, and offered the broker the defence of others ; and on his refusal, without further consulting him, made restitution to others who had paid the losses without suit, it was held that the assured might recover against the broker as well the amount of the losses so repaid, as of those which he had never re- covered (r). And so, where a party employed to buy goods of a particular quality for another, directs an agent to execute the commission, and he supplies goods of an inferior quality, in consequence of which the first party is sued by his em- ployer, the measure of damages in an action by him against the sub-agent is the amount of damages and costs that he has been forced to pay. If the goods have been refused by the party who originally contracted to purchase them, the original agent will be required to undertake to assign the goods to his sub-agent, or to sell them and account to him for the produce (s). In all these cases the actual loss is the measure of damages, Actual loss fur- and this measure may vary accordingly to the time at which the action is brought. This point was a good deal discussed in a recent case, the facts of which have been very fally stated in an earlier chapter (t). There, as will be seen by reference to the statement given, the owners of the ship resisted the action by the charterers, on the ground that the damages to which they were entitled for breach of the agreement to insure, entered into with them by the charterers, were a liquidated amount, viz., the value of the freight which was to have been insured. In support of this doctrine, a judgment of Washing- ton, J., was quoted. He says, " The law is clear, that if a (q) Mallouyli v. Barber, 4 Camp. 150 ; Park v. Hammond, ibid. 344 ; Holt, 80 ; S. C, 6 Taunt. 495. (r) Maydew y. Forrester, 5 Taunt. 615. (6-) Mainwuring v. Brandon, S Taunt. 202. [A broker negotiating a sale between seller and buyer, is not responsible for the quality, though employed by the purchaser to ship the cargo; Zwikhenbart v. Alexander, 1 B. & S. 234 ; 30 L. J. Q. B. 254, Ex. Ch. Recently, where an agent improperly parted with the possession of the goods of his principal, the latter recovered the whole value of the goods ; Stearine Co. v. Ileinfzmann, 17 C. B. N. S. 56; and see Matthews v. Discount Corporotiov, L. R. 4 C. P. 228.] (0 Charles v. Altin, 15 C. B. 46 ; 23 L. J. C. P. 197 ; ante, pp. 201, 202. nishes the men- sure of damages. 414 ACTIONS BY PRINCIPAL AGAINST AGENT. Damages must he the necessary result ; foreign merchant, who is in the habit of insuring for his cor- respondent here, receives an order for making an insurance, and neglects to do so, or does so differently from his orders, or in an insufficient manner, he is answerable not for damages merely, but as if he were himself the underwi'iter, and he is of course entitled to the premium" (it). But Jervis, C. J., said, " I think this is not the fair inference from what is there stated. It is not laid down that the broker, if guilty of negli- gence in effecting the insurance, becomes himself an insurer, and liable to pay the exact amount for which the insurance was or ought to have been effected, less the amount of premium. If so, what is the premium, which, as a matter of law, is to be deducted ? It clearly must mean that the amount of the loss is the reasonable, not the ascertained legal measure of damages which the party is entitled to. That is, in effect, the principle upon which the damages would be ascertained here. If the broker has been guilty of negligence, it is but just and reason- able that the customer "should recover against him the amount of the loss, deducting what would be paid for premiums ; in other words, that he should be recompensed to the extent to which he has been damnified by his agent's negligence. But it is not a positive rule of law" (x). And Maule, J., in a judg- ment ft-om which I have quoted before (y), pointed out that the action would lie at any moment after the negligence charged, and that the measure of damages might be a con- tinually varying sum, according to the facts that had occuri'ed up to the time the action was brought. The damages must of course be the necessary result of the defendant's neglect of duty. Therefore, where the plaintiff had been nonsuited in an action against the under\\Titers, on the ground of concealment of material information, and claimed in the suit against his agent to include the cost of the action on the policy ; Lord Eldon said that there was no necessity to bring that action to entitle the plaintiff to recover, and as it did not appear that the action on the policy was brought by the desire or with the concmTcnce of the {u) De Tasiett v. Crousillat, 2 Wash. C. C. R. 132. [(a;; 15 C. B. at p. 63. See also as to the measure of damages being not necessarily the whole amount of the insurance money, CahiU v. Dawson, 3 C. B. N. S. 106 ; 26 L. J. C. P. 253 ; ante, p. -202.] (y) Ante, p. 201. ACTIONS BY PRINCIPAL AGAINST AGENT. 415 present defendant, he onglit not to be charged with the cost& of it (z). The damages must also be the proximate and natural result and not be too of the neglect. Therefore, where an agent is directed to ^■^"^°*®' invest the funds of his principal in a particular stock, and he neglects to do so, and the stock thereupon rises, the principal is entitled to recover the enhanced value, as if the stock had been purchased. So, if an agent improperly withholds the money of his principal, he is liable for the ordinary interest of the country where it ought to be paid, and the incidental expense of remitting it, if it ought to be remitted. But he is not responsible for remote consequences that may accrue, such as loss of credit, or suspension of business by the prin- cipal, caused by the delay in payment {a). So, where an agent at Leghorn, having funds of his principal in hand, was directed to invest part of them in tiles and part in paper, and to ship the cargo for Havana ; he invested the whole in paper, which, on the ship's arrival, sold at a loss, whereas the tiles would have realised a profit. The defendant claimed to have the damages estimated at the value of the money which ought to have been invested in tiles at Leghorn, and not at the value they would have sold for at Havana. The Court decided against him. They said this measure would only be correct if the breach of contract consisted in the nonpayment of the money, and not in the faihire to invest that sum in tiles. Speculative damages, dependent on possible successive schemes, ought never to be given ; but positive and direct loss, arising plainly and immediately from the breach of orders, may be taken into the estimate. Thus, in this case, an estimate of possible profits to be derived from investments at the Havana, of the money resulting from the sale of the tiles, taking into view a distinct operation, would have been to transcend the proper limits which a jury ought to respect ; but the actual value of the tiles themselves, at the Havana, affords a reason- able standard for the estimation of the damages {b). Breach of contract, primd facie, involves a right to recover Nominal da- nominal damages, even though no actual loss is proved, or "i^^s^'s. (z) Seller v. Worh, ilarsh. Ins. 243, 4t]i ed. (a) Short v. Skipivith, 1 Brock. 103 ; Story, Agency, § 220, 221. (6) Bell V. Cunni'TKjhain, 3 Peters, 69, 85. 416 ACTIONS BY PRINCIPAL AGAINST AGENT. even suggested ; as, for instance, where the action was by a customer against a banker for dishonouring his cheque (c). In such a case, however, very lately substantial damages were given by a jury, and very fairly, because the injury to a man's credit may not be the less real, because it was not capable of When defendant pi'oof {(l). But when the agcut can show that under no cir- may show that cumstanccs could any benefit to the principal have followed havetaken fi"om obedicuce to his orders, and therefore that disobedience ri;icc. to them has produced no real injury, the action will fail. Therefore, if an agent is ordered to procure a policy of in- surance for his principal, and neglects to do it, and yet the policy, if procured, would not have entitled the princi})a1, in the events which have happened, to recover the loss or damage, the agent may avail himself of that as a complete defence. A fortiori, where the principal would have sustained a loss or damage, if his orders had been complied with. Accordingly, if the ship to be insured has deviated from her voyage ; or the voyage or the insurance is illegal ; or the principal had no in- surable interest ; or the voyage, as descril)ed in the order, would not have covered the risk ; in all such cases, the agent, though he has not fulfilled his orders, will not be responsible (e). In estimating too the amount of benefit which might flow from the defendant's obedience to his orders, the Court will not take into consideration matters of mere speculation. Therefore where the plaintifi" directed the defendant to effect an insur- ance on slaves, to which he was entitled in lieu of wages as mate on board a ship, and the ship was lost, it was held that he could not recover against the agent for neglect to insure the slaves, as not being an insurable interest. And it made no difference that in point of fact these slaves were frequently the subject of insm'ance at Liverpool, where the loss was always paid by the underwriters, without disputing the ques- tion. The Court were clearly of opinion that the plaintiff could not recover in this action, more than he could have re- covered W2 an action against the underwriters (/). (c) Marzetti v. Williayns, 1 B. & Ad. 415. [And see Fray v. Voulcs, 1 E. & E. 839 ; 28 L. J. Q. B. 232 ; ante, p. 360, n. (y).] (d) Bolin V. Steward, 14 C. B. 595. (e) Story, Agency, § 222. ( f) If'ebster v. De Tastet, 7 T. R. 157. CHAPTER XVIL PLEADING SPECIAL DAMAGE. We may now pass ft-oin the principles wliich regulate the measure of damages, to the rules of pleading and practice in relation to them. This part of the subject naturally resolves itself into tkree heads, which I propose to consider in the three remaining chapters. The first has regard to what is required of the plaintiff, in stating and specifying the grounds of his claim. The second relates to the mode in which the jury must proceed in assessing damages under the various circumstances of the case ; the consequences of any error into which they may fall, and the manner in which it may be rectified. Under the third head, I shall examine the power which the Court possesses to guide, alter, or review the ver- dict, particularly as to its amount. The first head, taken in its full extent, would include nearly the whole science of pleading. Of course, the present inquiry is of a very much narrower nature, and relates only to the occasions on which damages must be specially pleaded, and the degree of minuteness required. Special damage must always be expressly averred, and ^^'^'j''}! '^''1"^^^ proved, when it is so much the gist of the action that without ^vhen it is the it no suit could be maintained; as, for instance, in an action essence of the against a returning ofiBcer at an election, for holding a scrutiny contrary to statute 6 & 7 Vict. c. 18, s. 82, whereby the plaintiff was delayed and hindered in his right of voting {a) : or in an action by a master for the beating of his servant (b) : or by a relation for the seduction of a female, /^er quod (a) Pryce v. Belchrr, 3 C. B. 58. {b) Mary's case, 9 Reix 113. 418 PLEADING SPECIAL DAMAGE. servitium amisit (c) : or in cases of slander, where the words would not of themselves be actionable (d): or for a matter of general nuisance or injury to the entire public (e). In such a case as that last mentioned, the damage must be an actual tangible one to the plaintiff in reference to his existing in- terest. Therefore, where the action was for fixing an obstruc- tion in a public navigable river, and impeding the access to a house abutting upon it, it was held not to be a sufficient allegation of special damage to say, that the plaintifl' was reversioner, and had a right to the free navigation of the river for the enjoyment of the premises by his tenants, and so was injured in his reversionary interest. The Court said, *' If, indeed, an obstruction of a public road appeared to be of a permanent nature, or professed, either by notice affixed, or in any other way, to deny the public right, and so led to an opinion that no road was there, the value of the house might be lowered in public estimation, and so pecuniary loss might follow, for which an action would lie. But that is a peculiar state of things, which ought to be distinctly set forth, and by no means arises from the naked fact that while the plaintiff's house was in the hands of his tenant, a public road had been obstructed by the defendant" (/). It is not, however, necessary to state or establish particular instances of damage. Therefore a declaration for obstructing the access to the plaintiff's house, whereby divers persons who would otherwise have come to the house, and taken refreshment there were prevented, is suflBcient without naming any one (g). And so in an action for ft-audulcntly using the plaintiff's trade marks it is sufficient, at all events after ver- dict, to allege generally that by means of the fi-aud the plaintiff was deprived of the sale of divers large quantities of goods, and lost the profits that otherwise would have accrued to him therefrom. Maule, J., said, " It clearly is no ground for arresting the judgment that damage is alleged too generally " (h). (c) See ante, p. 377. (d) Malachy v. Soper, 3 Bingh. N. C. 371. (c) Dohson V. Blackmore, 9 Q. B. 991 ; Dimes v. Pclley, 15 Q. B. 276. (/) 9Q. B. 1004. (.9) Rose V. Groves, 5 M. & G. 613. (A) Rodger s v. Nowill, 5 C. B. 109. PLEADING SPECIAL DAMAGE. 419 In all other cases, whether the action be on a contract or in Special damage tort, if the facts involve a legal injury, no actual damage need proved unless be stated (i). But then no damages, beyond those which the I'^i'l- law infers, can be recovered for, unless they are specially stated. Under the old allegation of alia enormia in trespass, nothing could be given in evidence which could be stated with decency in the declaration (k). Accordingly, in an action of trespass and false imprisonment, the plaintiff was not allowed, without a special allegation, to prove that he was stinted in his allowance of food during his detention (l), or that his health had suffered from the confinement (m), or that he had been remanded by a magistrate (n). And so in an action for taking goods, where money has been paid to recover them, the payment ought to be alleged as special damage (o). A fortiori, matter which itself would be a distinct ground of action must be speciaUy averred. Hence in an action on the case for an excessive distress, in which no mention occurred of any sale of the goods, the plaintiff was only allowed to recover damages in respect of the detention up to the time of the sale, and not in respect of the sale, though it appeared on the trial that the goods were sold for less than their real value (p). In one old case Lord Eaymond took a distinction upon this point in actions of slander, between words which are actionable in themselves, and those which are only actionable with special damage. In the latter case, he said, that evidence of special damage is allowed, though the par- ticular instances of such damage are not specified in the declaration ; but in the former case, particular instances of special damage shall not be given in evidence, unless stated in the declaration (q) ; but this distinction is no longer recognised (r). So in trover, special damage, to be recoverable, must be (i) See ante, pp. 4 — 7. (k) Sippora v. Basset, 1 Sid. 225. (l) Lowden v. Goodrich, Peake, 46. (m) Pettit V. Addington, Peake, 62. (n) Eoltuin v. Lotun, 6 C. & P. 726. (o) Cowper, 418. Ip) Thompson v. Wood, 4 Q. B. 493. {q) Broivning v. Newman, 1 Sti-a. 666. (r) ] Wms. Saund. 243 d ; [1 'Wms. Notes to Saund. 322.] E £ 2 420 PLEADING SPECL^L DAMAGE. Statement of special damagn must be as full as the case will admit of. specially laid (s). In contracts, too, there are certain damages which the law will presume ; as, for instance, in an action for not delivering goods, that the plaintiff had to buy others at a loss ; or in an action on a warranty, that the article really given was inferior to that which it was warranted to be. The extent of the loss must be proved ; but no notice need be given of the species of loss which will be set up. But it is different where the injury complained of is of a merely secondary and consequential damage. As, for instance, that the plaintiff was sued for selling the same animal again, with a similar warranty (t) ; or that he incurred expense in investigating the title of the defendant to land, which the latter had contracted to sell, but could not, for want of title (ti). As the object of stating special damage is to let the de- fendant know what charges he must prepare to meet, the statement must always be as full and specific as the facts will admit of. Accordingly, in an action for an irregular distress, whereby the plaintiff had lost divers lodgers, without naming any. Lord Ellenborough rejected evidence that he had in fact lost one, because the name was not alleged, observing that the number was not so great as to excuse a specific description on the score of inconvenience (x). The same reason fairly applied to a general statement that a party had, in consequence of the alleged wrong, lost several suitors (y), or the sale of his lands (2); but the rule seems to be carried beyond just limits when it is said that an allegation that a party has lost divers customers is insufficient, because they ought to have been named (a). There is much more common sense in a later decision. The minister of a dissenting congregation alleged, that in consequence of the slanderous words of the defendant, " the said persons frequenting the said chapel have wholly refused to permit him to preach, and have withdrawn from him their countenance and support, and have discon- tinued giving him the gains and profits which they had usually (s) See ante, \i. 29G. (t) Lewis V. Pcake, 7 Taunt. 153. (M) Hodf/es V. Earl of Litchfield, 1 Bingh. N. C. 492. (x) WesHoood V. Counc, 1 St. 172. (y) Barnes v. Prudlin, 1 Sirl. 396. (3) Lowe V. Ilarewood, Sir W. .Ton. 196. (ft Eunt V. J071CS, Cro. Jac. 499 ; 1 Hull. Abr. 58 ; Bull. N. P. 7. PLEADING SPECIAL DAMAGE. 421 given, and would otherwise have given." Lord Kenyon held this sufficient, asking, how could he have stated the names of all his congregation ?(&). The question would have been quite as difficult to answer, had it been asked in the former case. Possibly the real distinction may be that taken by Cress- Distinction be- well, J. (c), between particular and special damage, where he alTspmal dl!^'" said, " In an action for slandering a man in his trade, when mage, the declaration alleges that he thereby lost his trade, he may show a general damage to his trade, though he cannot give evidence of particular instances " (<;). The great additional weight which the jury would lay upon one instance speci- fically proved, makes it only fair that notice should be given that the proof will be attempted. A mere general loss may well be announced in the same general way as that in which alone it can be proved. An action was brought for not performing a contract to let a house, whereby plaintiff had sustained loss, and been obliged to hire other premises at great cost and expense for rent and charges. It appeared that the premises, which were in Eegent Street, had been taken for the millinery business, for which they were well suited, and that the plaintifi", not being suflPered to occupy them, had sustained considerable loss from the passing by of the profitable season of the year. It was held that this evi- dence was admissible ,• Eichards, C. B., said there was, in fact, no special damage as such proved. The object of the witness's testimony was to show that the plaintiff had suffered incon- venience. And Graham, B., remarked, that loss of customers, and general damage occasioned thereby, might have been given in evidence under the declaration, for it charges general loss, without specifying any particular individual whose custom had been lost ; and it was competent to the plaintiff to show certain damage sustained by breach of the agreement, without stating his loss more specifically in the declaration (e). (b) Hartley v. Rerrinf/, 8 T. R. 130. (c) Eose V. Groves, 5 ivi. & G. 618. (d) And see Ashley v. Harrison, 1 Esp. 48 ; ante, p. 369 ; [Evans v. Harries, 1 H. & N. 251 ; and M'Laughlin v. Welsh, 10 Ir. L. R. 19j. (e) Ward v. Smith, 11 Price, 19, 422 PLEADING SPECIAL DAMAGE. Damages must be stated cor- rectly. Interest. Debt, The same principle which requires particularity of state- ment, also calls for accuracy of allegation. An action for a nuisance, resulting from an obstruction to a watercom'se, stated that it was caused by the erection of a mound of earth by the defendants. It appeared that the mound of earth would not, of itself, hare obstructed the water, but that it crumbled away and was trodden down, so as to cause the effect. It was held that the evidence did not support the declaration, as it alleged an immediate act of the defendants, whereas a consequential injury was all that was proved (/). And so in an action for false imprisonment, where it was laid as special damage that plaintiff had been forced to pay a large sum of money for costs, and the evidence was that he had employed an attorney, but not paid him ; it was held that the damage was not proved. But the Court said, that as to the money which the attorney had actually laid out for him, the averment was sufficient, for a man might well say that he had been forced to pay, that which his agent had been forced to pay for him. In respect of the money advanced for him, he was in the same situation as if he had borrowed it to pay it over {g). As to the mode of declaring for interest, the reader is re- ferred to the cases cited in the note {h). The mode of pleading with a view to damages in cases within the provisions of 8 & 9 W. III. c. 11, s. 8, has been noticed in the chapter on Debt (?"). (/) Fifzsimons V. Inglis, 5 Taunt. 534. {g) Pritchet v. Boevey, 1 C. & M. 775 ; Jones v. Lewis, 9 Dowl. 143. {h) Where the interest is part of the original debt, Marshall t. Poole, 1-3 East, 101 ; Farr y. Ward, 3 M. & W. 25 ; Harrison v. Allen, 2 Bingh. 4. Where it is subsequently stipulated for, Hicks v. Mareco, 5 C. & P. 498 ; or separable from the debt, Dickenson v. Harrison, 4 Price, 282. Debt for calls under a statute, Southampton Dock Co. v. Richards, 1 Sco. N. R. 219 ; 1 M. & G. 448. Common count for interest, Nordcnstrom v. Pitt, 13 M. &W. 723. (i) Ante, p. 165. CHAPTER XVIII. ASSESSMENT OF DAMAGES. /. Actions against a single De- fendant. 1. Judgment bij Confession, Refer- ence to the Master, Writ of Inquiry. 2. Judgment by Default. 3. Judgment on Demurrer. 4. Several Counts on 07ie Cause of Action. 5. Several Claims, ivhere some are bad. 6. Misjoinder of Counts. II. Actions against several De- fendants. 1 . Where there is a Verdict against all. pay Money into 2. When some Court. 3. When Judgment goes by Default, against all or some. 4. When they Plead severally. 5. When some Demur. 6. When there is a Verdict for some. III. When greater Damages are given than are claimed. IV. Double and Treble Damages. V. When an Omission by the Prin- cipal Jury may be supplied by a Writ of Inguiry. We have now discussed all the preliminary steps necessary to a judgment for damages ; the mode of pleading, the species of evidence that may be adduced, and the rules of law that ought to be laid down for the guidance of a jury. It now remains to consider the practical machinery by which the process is worked out. Where the case comes on for open trial, the jury who try the cause, of course, assess the damages also, and there the matter ends. But the case may never be tried in open court at all, or only part of it may be so tried, or only some of the defendants. Various distinctions also may arise, according as the action is against one or several. It will be simpler first to examine the mode of assessing damages where the action is against one, and then to inquire into the further com- plications which may arise, where several defendants are joined. 424 JUDGMENT BY CONFESSION. Judgment by confession. When a refer- ence to the !^^aster will bo allowed. I. 1. The defendant may confess judgment. This he may do either by means of a cognovit given beforehand, autho- rising an attorney to confess judgment and mark execution against him for a particular amount, or by an express plea, in which he avows that he has no defence to the action, or by implication ; as, for instance, where an executor pleads plene administravit, or ^^fe/ie administravit prceter. In all these cases, where the form of the confession admits that an ascer- tained sum is due {a), judgment is final, and execution may issue at once for the amount. "Wliere a cognovit was given for the payment of the money by instalments, and by the terms of the arrangement the plaintiff was not to be at liberty to enter up judgment, or issue execution unless default was made in payment of a certain sum, with costs, by instalments, it was held that on default being made in payment of any instalment, execution might issue for the whole amount, in the absence of express words to the contrary {b). But where the whole sum does not become due upon default in any instalment, execution may still be issued for each as it be- comes due and remains unpaid (c). Where the amount for which judgment can be signed is not ascertained, it will be necessary either to have a reference to a master, or to sue out a writ of inquiry. Till lately, the Courts were very strict in limiting the cases in which a reference to the master could be substituted for a writ of inquiry. They allowed it in actions upon bills of exchange, promissory notes, banker's cheques, covenant for non-payment of money, and the like, where it was only neces- sary to compute the amount of principal and interest due. But they refused it, where the action was on a bill of ex- change for foreign money, or on a foreign judgment, or on a bond to save harmless, or on a covenant to indemnify, or on a bottomry bond, or for calls due on railway shares, or even in an action upon a judgment recovered on a bill of exchange where interest was sought for, or in an assumpsit for a certain sum due upon an agreement {d). Now, however, by the (a) See Chit. Forms, 479, 7th ed. (6) Rose V. Tomhlinson, 3 Dowl. 49 ; Barrett v. Partington, 5 B. N. C. 487 ; Leveridge v. Forty, 1 M. & S. 706. (c) Davis V. Gompertz, 2 Dowl. 407. (d) Chit. Archb. 929, 9th cd. REFERENCE TO THE MASTER. 425 Common Law Procedure Act, 1852, s. 94, " In actions in which it shall appear to the Court or a Judge that the amount of damages sought to be recovered by the plaintifi" is sub- stantially a matter of calculation, it shall not be necessary to issue a writ of inquiry ; but the Court or a Judge may direct that the amount for which final judgment is to be signed, shall be ascertained by one of the masters of the Court." It is plain that all the cases above mentioned could now be re- ferred, and matters of even a more complicated nature seem to have been intended by the learned commissioners to be disposed of in the same way, the example given in their report being that of an action for damages for the non-repair of a house, or the like (e). In all other cases a writ of inquiry must still be resorted Evidence upon a to. The proceedings upon a writ of inquiry do not come ^"* °^ mquu-y. within the plan of this work. As to the amount which may be recovered, I may observe that the plaintiff must always recover nominal damages, for the writ of inquiry assumes that the cause of action has been proved (/) ; therefore where the action is on a lease, the defendant is estopped fi-om denying its execution (g). Nor can he object to the want of a stamp on the written contract (h)'. Nor prove absence of considera- tion for a bill or note (i). Nor can he show anything in miti- gation of damages, which might have been pleaded ; as, for instance, that he has a set-oflp (Jc), or that he has paid part of the demand (I). Nor need the plaintiff prove his interest in a policy of insurance (m), nor even produce the document ; as, for instance, a bill of exchange, upon which he sues (n). The state of things under which a writ of inquiry is brought, assumes not only that a cause of action, but that the cause of action laid by the plaintiff is proved. Where the amount claimed is such an essential part of the description of the (e) 1st Rep. 411. (/) J)e Oaillon v. EAujU, 1 B. & P. 368 ; {Dods v. Emns, 15 C. B. N. S. 621.] {g) Collins v. Rylot, 1 Esp. 157. Qi) Banbury Union v. Robinson, Dav. & Mer. 92. (i) Sheijherd v. Charter, 4 T. R. 275. (k) Caruthers v. Graham, 14 East, 578. {I) Lane v. Mullins, 2 Q. B. 254. (m) Thellusson v. Fletcher, 1 Doug. 316. (w) Lane v. Mullins, 2 Q. B. 254. WRIT OF INQUIRY. cause of action, as to be a material and traversable statement, as for instance the amount of a bill of exchange, no evidence is required on the wi'it of inquiry (o) to entitle the plaintiff to recover it. But it is otherwise where the distinct sum claimed is not so laid as to be in issue. If a plaintiff" declared for rent under a lease, laying the amount under a viz., and judgment were suffered by default ; if the rent appeared in evidence to be less than was alleged, the plaintiff' would re- cover only the amount proved to be due {p). So in an action against a carrier for loss of goods, their value and the expense the plaintiff" has been put to must be proved {q). Where the action was on a contract to purchase property at a certain large sum (to wit), the sum of 172/., judgment went by de- fault. The undersheriff ruled that the contract must be pro- duced to entitle the plaintiff to more than nominal damages. When produced it turned out not to be stamped. He rejected it on this account, and there being no other evidence of the amount of loss incurred, ordered a verdict for nominal damages. The Court ruled that he was wrong in rejecting the instrument for want of a stamp ; but on the other point, Patteson, J., said, " He thought there would be great diffi- culty in saying the undersheriff" was wrong" (r). And so, although the amount of a bill may be recovered without pro- ducing it, interest upon it fi'om maturity cannot (s). On the same principle, though judgment by default in an action for use and occupation admits that defendant occupied a house of the plaintiff"'s, he may show that he did not occupy the particular house with which the plaintiff" is trying to fix him, but the onus of proof is on the defendant {t). So in an action for work and labour, defendant may show that all the amount charged for was not done at his request {ii). And in an action for mesne profits, where judgment has gone by default, the (o) Lane v. Mullins, uhi sup. (p) Per Lord Denman, C. J., 2 Q. B. 923. (2) Livingston v. Douglas, 2 Dowl. 630, d. (}•) Banbury Union v. Robinson, Dav. & M, 92, 97. (s) Button V. Ward, 15 Q. B. 26 ; [Boyle y. Duffy, 6 Jr. L. R. 153, contra. In Byles ou Bills, 434, 10th ed., it is said : "If interest be sought from a period before the issuing of the writ, it may be necessary to produce the bill."] ' ^ (t) Davis V. Hold ship, 1 Chit. Rep. 644, n. (u) Williams v. Coo;per, 3 Dowl. 204. JUDGMENT BY DEFAULT. 427 plaintifiF must prove the whole time dm-ing which the defen- dant was in possession, and in the absence of such proof can only obtain nominal damages (.r). On the other hand there are some cases in which the mere fact of the wrong done, without any proof of the express loss, might entitle the plaintiff to substantial damages. The jury, in such cases, as for instance on a writ of inquiry in an action of libel, may gire such damages as they think fit, though no evidence is laid before them (y). 2. The defendant may let judgment go by default, either Judgment by for want of appearance, or for want of a plea (2). In the '•ef'^u^t- former case, if the writ has been specially endorsed, the plaintiff may, on filing an afiidavit of personal service of the writ of summons, or a judge's order for leave to proceed, and a copy of the writ of summons, at once sign final judgment, and issue execution at the expiration of eight days from the last day for appearance {a). Where the writ has not been specially endorsed, he may, after complying with the above forms, file a declaration endorsed with a notice to plead in eight days ; and in the event of no plea being delivered, judgment shall be final, if the nature of the claim is such that it might have been specially endorsed, and if the amount was endorsed upon the writ of summons {h). Wliere the defendant has not pleaded within the proper time judgment may be signed ; and by the Common Law Procedure Act, 1852, s. 93, in actions where the plaintiff seeks to recover a debt or liqui- dated demand in money, judgment by default shall be final. In eases which do not come within this description, the plain- tiff will be driven to the alternative of a reference to the master, or a writ of inquiry as stated above. Where judgment goes by default, and there are several Where there are counts, on some of which a writ of inquiry would be necessary, ^^'"^'''^ '^'''*'''''- and not on others, the plaintiff may have final judgment on such as do not require a writ, by entering a nolle prosequi, or remittitur damna as to the others. But such a course pre- {x) Ive V. Scott, 9 Dowl. 993. (y) Tripp v. Thomas, 3 B. & C. 427. (2) See Chit. Archb. 916, 9th ed. [980, 12th ed.] (a) C. L. P. Act, 1852, s. 27. (6) Ibid., s. 28. 428 JUDGMENT ON DEMURRER. Or a plea as to part. Or a demurrer. Issues of fact and law on same record. eludes another suit for the same causes of action (c). "Where, however, a declaration contains some counts on which a writ of inquiry is necessary, and a payment has been made gene- rally upon the whole, a remiltitur danina cannot be entered upon those counts, because damages have been received upon them ; nor can a nolle prosequi be entered without the consent of the defendant. The plaintiff must execute the writ of inquiry {d). It is no ground of error that the Court, on judgment going by default, first awarded a writ of inquiry, and afterwards assessed damages themselves. The inquiry is not a necessary step, but only a means of satisfying the conscience of the Court (e). Where the defendant lets judgment go by default as to part of the declaration, and pleads to the rest, a special venire is issued, and the jury who try the issue assess damages for the whole (/). 3. Where there is a demurrer to part of a declaration, and a default as to the rest, the plaintiff may either ascertain his damages definitely on the part unanswered, and contingently on that demurred to ; or he may wait till the determination of the demurrer, and then obtain damages on both issues in the manner above stated {g). Or he may enter a nolle iiroscqui on the count demurred to, and take his damages on the other {h). A judgment for the plaintiff upon demurrer is interlocutory or final, in the same manner and in the same cases as a judg- ment by default (/). And the same mode is to be pursued in assessing damages. Where there are issues of fact and law on independent pleadings, the plaintiff has in general the option which he will have tried first {Ic). This option, however, may be controlled by the Com't, who will exercise their discretion, when the (c) Bowden v. Home, 7 Bingh. 716. {d) Jones v. Shiel, 6 Dowl. 579. (e) Gould Y. Hammersley, 4 Taunt. 148. (/) Ileydoii's case, 11 Rep. 5. {[/) Chit. Archb. 926, 9tli ed. ; [935, 12tli ed.] (k) Milliken v. Fox, 1 B. & P. 157. (i) Chit. Arch. 870, 9th ed. ; [933, 12th ed.]; Chitt. Forms, 472, 7tL ed.; [497, 10th ed.] {k) 2 T. R. 394. JUDGMENT ON DEMUREEE. 429 decision of the law affects the damages or general aspect of the case (/). And by the Common Law Procedure Act, 1852, s. 80, where either party has pleaded and demurred to the same matter, it is in the discretion of the Court to order which issue of law or fact shall be disposed of first. Disposed of, relates to the tribunal in which the issue is first raised. The Coui't haye no power to defer the trial of the issue in fact till the demurrer is taken to a Court of Error (jn). When the plaintiff is allowed to exercise his option, he may either assess damages contingently on the demurrer, at the trial of the issue of fact {n) ; or if he has already had judgment on the demurrer in his favour, may summon a jury tarn ad triandum quam ad inquirendum (o). If there is an issue of fact as to one part of the cause of action and" a demurrer as to the other, which is decided in favour of the plaintiff, if he is content to take damages only on the judgment on the demurrer, he may execute a writ of inquiry upon it, and enter a nolle prosequi upon the issues at any time up to final judgment {p). But he cannot do this if there is any issue still undisposed of which, if found against him, would destroy the whole cause of action {q). Where there are several issues upon the record, and a Where there is 1 • 1 J.1 -i. a nndiug for finding for the defendant upon one which goes to the merits defendant on of the whole action, it is unnecessary for the jury to assess ^^^ pi^a- damages upon the others (r). 4. When there are several counts on the same cause of Where there are TT If L- • J J.1 1-i •-«:•• several counts action, and only one cause of action is proved, the plaintiff is ^^ ^he same entitled to a verdict on one count only, and to have his costs cause of action, taxed on that count only (5). And, accordingly, where a declaration for non-repair against a tenant contained two counts, one founded on an express agreement to repair, and (l) Burdett v. Colman, 13 East, 27. (m) Lumley v. Gye, 2 E. & B. 216 ; 22 L. J. Q. B. 463. {)/) ThomiJson v. Percival, 2 B. & Ad. 968. {()) See Gregory v. Bule of Brunswicl', 6 M. & G. 953. (p) FUniinrj v. Lanrjton, 1 Stra. 532; 1 Wms. Saund. 109; [1 Wm.<. Kotes to Saund. 12i.] (5) Dichr V. Adams, 2 B. & P. 163. Even in such a case, however, he may enter a voUe pronequi as to the other issues — except as to the costs of the demurrer. These he will retain, hut of course no damages ; Williams v. Vines, 9 Jur. 809. ()•) Gregory v. Duke of Brunswicl; 3 C. B. 481. (sj Ward V. Bell, 1 C. & M. 848. 430 JUDGMENT ON DEMURRER. the other founded on an implied promise to use in a tenant- like manner, founded on his occupation, it was held that he could not recover on both counts unless he could prove a second contract in fact, relating to another and different messuage {t). And a new trial was ordered. And so where general damages were given upon two counts framed upon the same warranty, Patteson, J., said, " The new rules allow of only one count upon one subject-matter of complaint; by which, in cases of contract, I understand, not merely the breach of contract, but the contract itself, as the foundation and part of tlie matter of complaint, and, if necessary, there may be an amendment" (u). But where the making of a contract entails one liability, and its performance another, two counts may be joined on the express and implied agree- ment, and damages allowed on both ; as, for instance, for dis- missal without a month's warning, and for wages for the period actually served ; because the implied contract for wages pro rata arose, not from the original agreement between the parties, but from the performance of it {x). In one case, two counts were allowed for breach of contract in using a vessel for an illegal purpose, whereby she was seized, and for detain- ing her beyond the time for which she was hired. Tindal, C. J., said, "The first count is for a malfeasance; the second is founded upon the express contract between the parties. If we were not to allow the plaintiff to set up the collateral con- tract implied by law contained in the first count, we might probably deprive him of his principal ground of complaint" (y). In a later case, however, Patteson, J., said that this case was rather at variance with Holford v. Dimnett, and that he should have thought that one of the counts ought to have been struck out (2). Plaintiff com- Where there are different counts, upon one of which alone peiied to elect. damages can be obtained, and there is a general verdict for the plaintiff, the Court will compel him in the term after trial to elect on which he will enter up verdict {a). And where (0 Holford V. Dunnett, 7 M. & W. 348. (u) Deere v. Ivey, 4 Q. B. 379, 384. (x) Hartley v. Harman, 11 A. & E. 798 ; 7 M. & W. 352. ly) Blcaden v. Eapallo, 3 M. k G. 116. (z) 4 Q. B. 385, sed. qu. ? (a) lee v. Muggeridge, 5 Taunt. 36 ; Taylor v. Nc^fidd, 4 E. & B. 462. SEVEKAL COUNTS ON THE SAME CAUSE OF ACTION. 431 Assessing damages npnn several counts. there are two counts, and defendant lets judgment go by de- fault upon one, on which the plaintifi" may recover all he is entitled to, if plaintiff chooses to go to trial, damages will be assessed on the count on which judgment went by default, and he will have to bear all the costs of trial that have been unnecessarily incm'red (b). 5. Where there are several causes of action in the same declaration against the same defendant, and there is a general verdict for the plaintiff, damages may be assessed severally upon each count (c). And this is the safer course ; for when damages are entirely assessed, it shall be intended for all that for which the plaintiff complains (d). And therefore, if any one of the alleged causes of action are insufficient, a venire de novo will be awarded (e). And for this purpose, several breaches of the same agreement (/), or of the same covenant (g), are considered as several counts. And the same appears to be the case, where a distinct issue is taken upon one part of a count, which might have been rejected as surplusage, and which is found for the plaintiff (h). On the other hand, if the same count contains two demands Or upon the or complaints, for one of which the action lies, and not for ^^ichTontains the other, all the damages shall be referred to the good cause several de- of action, although it would be otherwise if they were in ™^^*^^- separate counts (?). It may be asked, however, whether the result would be the same, if it appeared that the jury had, in fact, given damages on a bad cause of action ? An action of trespass was brought against a surveyor for cutting the plain- tiff's trees, which overhung the highway. Defendant pleaded an order by the justices under the Highway Act, authorising him to do so. The order was bad as to part of the trees, and (b) Compere v. Hicks, 7 T. R. 727. (c) 1 Roll. Abr. 570. [See Clarke v. Eoe, 4 Ir. C. L. 1.] (d) 10 Rep. 130, a. (e) Chadwick v. Troioer, 6 Bingli. N. C. 1 ; Leach v. Thomas, 2 M. & W. 427 ; [Stevenson v. Newnham, 13 C. B. 285.] Formerly the rule used to be to arrest judgment in toto ; Gramvelv. Rhohotham, Cro. Eliz. 865 ; Sfaynrode v. Locock, Cro. Jac. 115 ; 5 Rep. 108 b. ; Noll v. Scholefield, 6 T. R. 691 ; Sickle- more V. Thistleton, 6 M. & S. 9 ; but the practice is now settled as stated above. (/) Leach V. Thomas, ubi sup. (g) Sicklemore v. Thidlcton, ubi sup. (h) Chadwick v. Trowcr, tibi sup. (i) Lawrie v. Dyeball, 8 B. & C. 70 ; Campbell v. Lewis, SB. & A. 392 ; 3 Exch. 52. GENERAL VEEDICT ON SEVERAL COUNTS. therefore formed no justification. As to part it was good. The jury found a general verdict for the pL^intiflF as to the injury to all the trees, under the direction of the judge, who told them that the order was entirely bad. A new trial was directed, that the jury might enquire whether the defendant cut down more trees than the good part of the order would justify, and to assess damages accordingly {k). Though not directly in point, the principle of this case seems to bear strongly upon the question suggested. And so where a single count in trover charged the conversion of goods, chattels, and fixtures, to wit, &c., and a general judgment for the plaintiff, a motion was made to set aside the verdict on the ground tliat trover did not lie for fixtures. Parke, B., said, that if it were clear that this declaration contained two distinct causes of action, for one of which trover could not be maintained, then, as general damages had been assessed upon the whole declaration, there must be either an arrest of judgment, or veiiire de novo; it was unnecessary to determine which. And he said the case was distinguishable from that of an action for words, some of which are not actionable ; for there the Court would presume that the non-actionable words were not intended to constitute the cause of action, but Mere used merely as matter of aggravation or explanation. The Court held, how- ever, that fixtures did not necessarily mean things affixed to the freehold, and therefore the objection fell to the ground in that instance {I). The language of the learned Baron seems as strong as possible upon the point. "Where the action is for defiimation, the following distinc- tion is taken : — that if an action is brought for speaking words all at one time, that is, all in one count, and there is a verdict, though some of the words will not maintain the action, yet if any of the words will, the damages may be given entirely ; fur it shall be intended that the damages were given for the words which are actionable, and that the others Avere inserted only for aggravation. But if the action be brought for several words spoken at several times, and the action will not lie for the words spoken at one time, but will lie for the words (k) Jenney v. Brook, 6 Q. P.. 323. (Z) Shccnx. liickie, 5 M. & W. 175, 181. GENERAL VERDICT ON SEVERAL COUNTS. 433 spoken at another, and a verdict be found for all the words, and entire damages given, it is not good (;n). In. an early case the first branch of this rule was put on the common-sense ground, that if judgment must be arrested, a man by speaking words not actionable and words actionable together would secure himself from action, because he must be found guilty of the whole or none («). The latter part of the rule, so far as it conflicts with that laid down in Laivrie v. Dyeball, cited above, probably proceeds on the ground, that when words appear to have been spoken on different occasions, the Court would treat them as different counts. If, then, one turned out to be bad, of course general damages assessed on all would be bad also. Accordingly, in one case, where statements of different libels were each prefaced with '^ afterwards to wit, on " &c., each statement was held to be a different count. Lord Abinger, C. B., said, " You may put into one count for libel or slander all words spoken or written at one time ; but I am not aware that you may put into one count matters published at different times. Here each particular count presents a different story" (p). The difficulty would arise, where words really spoken at different times, but appearing to be spoken at the same time, were united in one count. Where, however, the words laid were such as the jury never could have considered libellous, or taken into consideration in assessing damages, even their being spoken at different times might possibly make no difference. ( p). In detinue, damages ought to be assessed as to each chattel separately, that a satisfaction may be had in value for each parcel in case they be not all delivered (g-). And if the jury do not assess damages, the Court cannot exercise its juris- diction under 17 and 18 Vict. c. 125, s. 78, to order a delivery to the plaintiff in specie (r) ; nor can the defect be (m) 2 Wms. Saund. 171, d. ; [2 Wms. Notes to Saund. 498 ;] Bois v. Bois 1 Lev 134 ; Brooke v. Clarle, Cro. Eliz. 328 ; Penson v. Gooday, Cro.'Car. 327 ; Griffiths v. Lewis, 8 Q. B. 841 ; Alfred v. Farlow, 8 Q. B. 854. (n) Lloyd v. Morris, Willes, 443. (o) Hu'/hes V. JRees, 4 M. & W. 204, 206. (p) 1 iloU. Abv. 577; Bridges v. Horner, Garth. 230; NichoUs y. Bear, 1 Fieem. 83. (q) Patoly v. Holly, 2 W. Bl. 853. (r) Chilton v. Carrinyton, 15 C. B. 730 ; 24 L. J. C. P. 78. F F 434 MISJOINDER OF COUNTS. Prospective damages. Misjoinder of couuts. Where the action is against seve- ral, damages must be assessed generally. remedied by a writ of inquiry, but there must be a venire de 710V0 (s). I examined in the early part of this work (t) the eases in which damages might be given in respect of matter subsequent to action brought. It is only necessary to say here, that where it is positively and expressly alleged in the declaration, that the plaintiff has sustained damages from the cause subsequent to the commencement of the action, or previous to the plaintiirs having any right of action, and the jury give entire diunages, judgment will be arrested ; l)ut where the cause of action is properly laid, and the other matter either comes under a scilicet, or is void, insensible, or impossible, and therefore it cannot be intended that the jury ever had it under their con- sideration, the plaintiff will be entitled to his judgment {u). 6. AVhere there is a misjoinder of several counts, which are in themselves good, and general damages arc given, judgment will be arrested. And it is the same where one count consists of several causes of action, which ought not to have been united. In such a case a venire de novo cannot be awarded, because it is only admissible where the jury must find dilll-r- ently, in order to make the record consistent. But in this case, the j ury were bound to assess damages on every part of the declaration (x). But if there be a misjoinder of counts, and verdict for the plaintiff on the counts properly joined, and for the defendant on the others, this would be no ground for arresting the judgment {{/). And so the defect would be cured, if the jury were directed to find for the defendant on the count wrongly joined, or if a 7iolle j^rosequi were entered upon that count, {z). 11. 1. Where an action is brought against several, and the plaintiff has a verdict against all, if the action is on a contract, it must of com-se be for the amount of the single liability which rests upon all. And even where the action is for a tort, the jury must assess damages generally against all, and that (s) 10 Rep. 119, b. ; Herbert v. Waters, 1 Salk. 205. (t) Ante, p. 58. (u) 2 W. Saimd. 171 ; [2 Wms. Notes to Saund. 495.] (x) Corner v. Shew, 3 M. & W. 350 ; KUchenmaa v. Skecl, 3 Exch. 49. (y) Kifjhtly v. Birch, 2 M. & S. 533. (2) Kitchcnman v. Skecl, uhi sup. ASSESSING DAMAGES AGAINST SEVERAL DEFENDANTS. 435 Avhether they unite or sever in the pleas and issues (a). And in such a case, the measure of damage is the gross amount of injury which the plaintiff has received from all, " although one of them de facto does more and greater wrong than the others, yet all coming to do an unlawful act and of one party, the act of one is the act of all of the same party being present" (J). A doubt has, however, been expressed lately as to this latter doctrine. An action was brought against the sheriflF and one of his officers jointly, and large damages given. The Court held that the damages were not excessive against the sheriff, but that they would be against his officer only for the doctrine above mentioned. " It has been said," they observed, " that in an action of tort against several defendants who have taken different parts in the transaction, the measure of damages ought to be the sum which ought to be awarded against the most guilty of the defendants. We wish to afford an oppor- tunity for discussing whether there be such a doctrine, and how far it applies to the present cause " (c). And it is quite settled that in no case can the malignant motive of one party be made a gromid of damage against the other party, who was altogether free from such improper motive. In such case the plaintiff ought to select the party against whom he means to get aggravated damages {d). It is laid down in some old authorities, that in trespass Contrary deci- against two, if the jury find one guilty at one time, and the ^^°'^^- other at another, there several damages may be taxed ; but if the plaintiff himself confesses, that they committed the trespasses severally, there the writ shall abate ; and so there is a difference between finding by verdict, and confession of the party (e). And so where one is found guilty of one part and one of another (/); or one of part and another of the (a) Coche v. Jennor, Hob. 66 ; Heydon's case, 11 Rep. 5, b ; Crane v. Emnmerstone, Cro. Jac. 118 ; Onslow v. Orchard, Stra. 422 ; Lowfield v. Bancroft, Stra. 910 ; Hillw. Goodchild, 5 Burr. 2790. {h) 11 Rep. 5, b; Brown v. Allen, 4 Esp. 158; Eliot v. Alle7i, 1 C. B. 18 ; Clark v. Newsam, 1 Exch. 131. (c) Gregory v. Cotterell, 22 L. J. Q,. B. 217. (d) Clark v. Newsam, 1 Exch. 131, 140. See Wricjht v. Court, 2 C. & P. 232. i'e) 11 Rep. 5, b. (/) Flayer y. Warn, Cro. Car. 54. 436 ASSESSING DAMAGES AGAINST SEVERAL DEFENDANTS. Where some pay money into COUl't. whole {g). And where entke damages were found in such a case against all, judgment was reversed {li). It seems, how- ever, that this is not considered to be law now. Torts being in their nature several, the jury may find any one guilty, and acquit the rest ; but if they find several guilty, they can only convict them of that which is charged against them, viz., a joint offence. Accordingly where several persons were sued jointly for assault and false imprisonment, two having taken the plaintiff into custody, and delivered him over to the third by whom he was detained, it was ruled that the attention of the jury must either be confined to what took place at the place of detention, or there must be a verdict in favour of the third defendant. And for this reason, because the damages being joint against all, the latter defendant would be liable to pay for an act, with the commission of which lie had nothing to do {i). And so when the action was against three, for entering a dwelling-house and seizing goods, and the evidence proved that two of the defendants seized the goods, and one entered the house, but no joint trespass was established. Cresswell, J., compelled the plaintiff's counsel to elect on which trespass he would go to the jury. As soon as the plaintiff has proved a distinct trespass committed by one of several defendants, and by him alone, and then tenders evi- dence of a different trespass, he is liable to be called on to make his election {k). 2. Where some plead to tlie whole action, and others pay money into Court, if the jury find all guilty, and that the sum paid is enough as to all, they must acquit the party pleading payment, and find against the other parties with nominal damages. But they cannot find that the sum is enough as to the party paying it, and further damages against the others. In such a case, if the tort was actually a joint one, they must find against all for the surplus left unsatisfied after the payment into Court [l). (g) Austen \. Wilhvard, Crn. Eliz. 860 ; WhttweU v. Short, Stvl 5 (h) Ibid. (i) Aaron v. Alexander, 3 Camp. 35 ; Powell v. Hodqetts, 2 C. & P. 432. (k) Howard v. Newton, 2 M. & Rob. 509 ; and see Barnard x. Gostlinq, 1 N. R. 245. ^ (/) Per Patteson, J., Walker v. Woolcott, 8 C. & P. 352. JUDGMENT BY DEFAULT. 437 "Where damages are assessed severally instead of jointly, How assessment judgment wiU be reversed {m) ; but the plaintiff may cure it geveraUy ^^ by taking judgment de meUoribus damjiis against one, and may be reme- entering up a nolle prosequi against the others, and this whether they have joined or severed in pleading {n). And this does not operate as a release, which would enure to the discharge of all (o). Or he may have judgment for the greater damages against all, either with or without entering a remitUtur as to the lesser, for taking the greater damages operates as a remittitur' of the less {p). 3. Wliere judgment by default has gone against all, the Judgment by plaintiff should have damages assessed by a single writ of ^Jj^^^^* '''sainst inquiry, if necessary. Where a plaintiff executed several writs of inquiry in such a case, and several damages were given against each, it was held that if he had entered up final judg- ment upon these interlocutory judgments it would have been erroneous. But upon payment of costs the plaintiff was allowed to set aside his own proceedings {q). The effect of a judgment by default, suffered by one only Judgment by of several defendants, differs according as the action is in *^'^^'^}" Vf +!.u^+ ' ° _ _ one in contract. contract or for a tort. In the former case, if the writ has been specially endorsed, the plaintiff may issue execution against the defendant who has not appeared, in which case he shall be taken to have abandoned his action against the other defendants. Or he may declare against those who have appeared, suggesting the judgment by defaidt, which shall then have the same operation as before the act (r). The latter course would be a very dangerous one, unless success against the defendants who have appeared is certain, since if he should fail against them in consequence of a defence which goes to the ground of the action, he could not have judgment against the party who had made default (s) ; and he could not remedy it by entering a nolle proseciui against those who appeared {t). Where, however, the plea of those who appear (m) Onslow v. Orchard, Stra. 422 ; Hill v. Goodchild, 5 Burr. 2790. (n) Walsh v. Bishop, Cro. Car. 243 ; Rodney v. Strode, Cartk. 19. (o) Cro. Car. 243 ; Cocke v. Jennor, Hob. 66. [p) Johns V. Dodsworth, Cro. Car. 192 ; Sahin v. Long, 1 Wils. 30. (q) Mitchell v. Milbanh, 6 T. R. 199. (r) C. L. P. Act, 1852, s. 33. (s) Porter V. Harris, 1 Lev. 63 ; Boulter v. Ford, 1 Sid. 76. {I) 1 W. Saund. 207, a ; [1 Wms. Notes to Saund. 215.] 438 JUDGMENT BY DEFAULT. In tort. Plaintiff cannot be nonsuited against those wlio ajipear. is a matter of mere personal discharge, as bankruptcy, in- solvency, ne wiques executor (u) ; or even where such a plea is joined with one which goes to the base of the action (a-), tell plaintiff may enter a noJIe jjroseqta against the party pleading, and still retain his remedy against the other. But infancy is not such a plea of merely personal discharge as will allow of a fioUe prosequi being entered, since it proves that there never was a binding contract made by all the parties, not that it has ceased to bind one of them (y). The proper course in such a case is to discontinue and sue the adult alone (2). Where the action against several is in tort, and some let judgment go by default, and others plead, a special venire is awarded, tarn ad triandum qiiam ad inquirendum, and the jury who try the issue shall assess damages against both {a). And if upon the trial those who have pleaded should be acquitted, damages may still be assessed against those who have let judgment go by default {h). But it would be other- wise if the plea of those who appear, not only operates as a defence to themselves, but shows that the plaintiif had no cause of action against either, as that the goods taken were a gift fi'om the plaintiff" to the defendant, or a lawful distress for rent, or that the plaintiff" had released one of the joint- trespassers (c). It seems, however, that the plaintiff may, at his option, take judgment against those who make default and enter a nolle inoseqni against the others {d). When there are several defendants, and judgment has gone by default as to one or more, and the others plead, the plaintiff cannot be nonsuited as to those who appear, whether the action be on a contract(e) or for atort(/). Lord Mansfield said, (m) Noke V. Ingham, 1 Wils. 89. (as) Moravia Y. Hunter, 2 M. & S. 444. (y) Chandler v. Parhes, 3 Esp. 76 ; Jaffray v. Frebain, 5 Esp. 47. (z) Burgess v. 3f err ill, 4 Taunt. 468. {a) 11 Rep. 6, a. [And this is also the proper course -nhcn the action is in contract for unliquidated damages ; Thompson v. Shanley, 4 Ir. G. L. R. 617 ; 2 Ch. Arch. Pr. 980, 9th ed.] (6) Jones V. Harris, Stra. 1108; Cressy y. Wehb, Stra. 1222. (c) Brigijs v. Greinfeild, Stra. 610 ; 2LordRaym. 1372, S. C. ; Marler v. Aylife, Cro. Jac. 134 ; 1 Inst. 125, b. (rf) Walsh V. Bishop, Cro. Car. 239, 243. (c) Weller v. Goyton, 1 Burr. 358 ; Hannay v. Smith, 3 T. R. 662. [But the contrary was held subsequently in Murphy v. Donlan, 5 B. k C. 178.] (/) Harris v. Butterley, 2 Cowp. 483. ASSESSING DAMAGES AGAINST SEVERAL. 439 " Here was a judgment obtained by the plaintiff against one of the defendants already. How then can the plaintiflF be out of court as to him ? But if he is nonsuited in this action he will be out of court as against both defendants" (//). And so it is laid down that where defendants sever in pleading, and the plaintiff is nonsnited against one, this is a complete dis- charge to the others (h). 4. Where, in actions of tort against several, they plead Where several severally, and several venire facias are awarded, the inquest ^^"^ ^evera j. which first passed shall assess damages for all, and the second inquest shall not assess damages, but he shall be contributory to the damages assessed by the first, notwithstanding he is not party to it (i). The word "contributory," as used by Lord Coke in this passage, of course means only "subject" to the judgment, for there can be no contribution for damages among wrong-doers {Jc). 5. Where there has been a demurrer by one defendant, and Where one an issue in fact by the other, the jury who try the issue in 'l^™^^'^^- fact must also assess damages contingently upon the demurrer. And if they return an absolute verdict against both defendants, it will be set aside with costs for irregularity, and a new trial granted (/). 6. When all the defendants appear at the same time, to Whore all try the same issues, if the plaintiff has a verdict against all, ^Pi'*^'^'- no difficulty arises. Where in an action on a contract he fails to prove his case against one, he will be nonsuited (m). But if this failure arises merely from misjoinder, he will be allowed to amend, either before or at the time of trial, by leave of the Court or a judge, provided no injustice will be done thereby (n). ^Y}leve, however, the action is for a tort, a failure against one is no ground for nonsuit against the others (o), unless the gist of the action is a contract. If so, (g) 1 Burr. 359. (h) Parker r. Lawrence, Hob. 70 ; Slowley v. Eveleij, Hob. ISO ; Snoio v. Co7no, 1 Stra. 507, Bull. N. P. 20. (?■) 11 Eep. 6, a. (k) Merry iveather v. Nixan, 8 T. R. 186. U) Thompson v. Perdval, 2 B. & Ad. 968. (m) Weally. King, 12 East, 452. (n) C. L. P. Act, 1852, s. 37. . o k , r (0) Brelherton v. Wood, 3 B. & B. 54 ; Pozzi v. Slupton, 8 A. c^c h. 963. 440 VERDICT FOR LARGER DAMAGES THAN ARE CLAIMED. Former recovery in tort. Verdict for larger damages tban are claimed. Double and tre- ble damages. the form of it in tort makes no difference as to the right of the parties to have a judgment against all (p). But although in tort tlie plaintiff may proceed against any of the wrong-doers separately, a recovery against one will be a bar to an action against any other whom he might have joined in the same action ; for by the judgment the damages are converted into certainty {q). But the mere pendency of an action against one is no answer to an action against another (r), whether in contract or on a tort. III. We have seen before (s) that no greater damages can be given than are alleged in the declaration. If the jury give more it will be error, and the judgment will be reversed (/). The plaintiff may, however, cure this defect himself before judgment, by entering a remittitur of the excess (w). After judgment the party cannot himself make the amendment, but the Court will, in the exercise of their authority to amend, allow him to become their instrument for that purpose ; and this they will do, even in a subsequent term, and after error brought on this very account, and joinder therein (x). "Where, by mistake, the damages have been laid at too small a sum, and the jury hare found a larger amount, the Court will not amend the defect by increasing the damages laid in the declaration to the right amount after verdict, though tlie mistake is palpable on the face of the record; but they will allow a new trial on payment of costs by plaintiff, and with leave to amend the declaration (y). IV. There ai'c various statutes which give double and treble damages against a person violating their provisions. For in- stance, treble damages are given for a forcible entry into the (p) Weall\. King, ubi sup. ; Powell \. Layton, 2 N. R. 369. (5) Morion's case, Cro. EHz. 30 ; Broun v. Wootton, Cro. Jac. 74 ; Cocke V. Jennor, Hob. 66 ; Lechmere v. Fletcher, 1 C. & At. 634 ; King v. Hoarc, 13 M. & W. 504 ; Brinsmead v. Harrison, L. R. 6 C. P. 584 ; 40 L. J. C. P. 281 ; affd. 41 L. J. C. P. 190. (r) Henry v. Goldney, 15 I\I. & W. 494 ; overruling Boyce v. Douglass, 1 Camp. 60. (s) Jnte,ix 97. (t) 1 Roll. Abr. 578 ; Persival v. Spencer, Yelv. 45 ; Hohlins v. Kimble, 1 Bulstr. 49 ; Ckeveley v. Morris, 2 W. Bl. 1300. (m) Coy V. Hymas, 2 Stra. 1171 ; Mills v. Funnell, 2 B. & C. 899. (x) Pickwood V. Wnrjht, 1 H. Bl. 643 ; Usher v. Dansey, 4 M. k S. 94. For the principle of tbese amendments, see post, eh. 19. (2/) Tumlinson v. Blarlsmith, 7 T. R. 132 ; TMa v. Bairon, 4 'Si. k Gr. 844. DOUBLE AND TREBLE DAMAGES. 441 lands of tlie plaintiff (2), or for extortions by sheriffs, coroners, and officers of that nature (a), or for an improper impounding of a distress {b), or where a verdict is found for the defendant in replevin, where a distress has been taken for poor-rates (c). And so double damages are given for distraining the plaintiff's goods, no rent being due (d). And treble damages for [pound breach or] rescuing a distress (e). In all these cases the practice is to take the sum returned by the jury, and without any further communication with them, to double or treble the amount (/). Y. Having now gone through the practice according to which a jury ought to assess damages, it remains to notice the manner in which any omission by them so to do may be supplied. The law upon this point was laid down in an old case as When a writ of follows : " Where the matter omitted to be inquired by the ^^.^e'i^'^^es principal jury is such as goes to the very point of the issue, and upon which, if found by the jury, an attaint will lie against them by the party, if they have given a false verdict, there such matter cannot be supplied by a writ of inquirj', because thereby the plaintiff may lose his action of attaint (g), which will not lie upon an inquest of office. But where the matters omitted to be inquired by the jury do not go to the point in issue, or necessary consequence thereof, but are things merely collateral, as damages in replevin for poor- rates, and the four usual inquiries on a quare impedit, such may be inquired of by a subsequent writ of inquiry, because if the same had been inquired into by the principal jury, it would have been, as to those particulars, no more than an inquest of office, upon which an attaint does not lie " {h). in place of the principal jury. (2) 8 Hen. YI. c. 9, s. 6 ; Dyer, 214, a, pi. 45. (a) 13 Hen. VI. c. 10, s. 11 ; 29 Eliz. c. 4 ; Brunsden's {BampsteiVs) case, Cro. Car. 438, 448. {J)) 1 & 2 Ph. & M. c. 12, s. 1. (c) 43 Eliz. c. 2, s. 19 ; Newman v. Barnard, 10 Bingh. 274 ; ante, p. 320. {d.) 2 W. & M. sess. I. c. 5, s. 5 ; Masters v. Farris, 1 C. B. 715. (e) 2 W. & M. sess L c. 5, s. 4; Anon. Lord Raym. 342 ; Lawson v. Storie, Salk. 205. (/) Attorney-General v. Hatton, 13 Pri. 4/6, M'Clell. 214; Buckle y. Bcwes, 4 B. & "C. 154, Bro. Dam. pi. 70. (^/) Now abolished by 6 Geo. IV. c. 50, s. 60. (M Herbert v. Waters^ Garth. 362. 442 CASES m WHICH A WRIT OF INQUIIIY Confession, DcnnuTcr to evidence. ITence no writ of inquiry can issue where the jury liave omitted to assess damages in detinue or trespass (i) ; or libel (Jr) ; or on a bond conditioned for the performance of covenants within statute 8 & 9 W. III. c. 11 (I) ; or in as- sumpsit, though the only issue be on a plea of abatement (m). But in all these a venire de novo must be awarded. Xor can an omission to assess damages on the traverse to a return to a mandamus be supplied (n). Where, however, in such a case as that last mentioned, the jury had omitted to give nominal damages, but the omission to mention them to the jury, and to enter them as part of the associate's minutes, was accidental, the judge having intended so to direct them, it was held that the judge was justified in ordering Is. damages to be entered on the postea (o). Where damages are not the only thing to be recovered, as in actions of debt, or for an annuity, an omission or defect in their assessment may be remedied by a release (p), which may be entered at any time before judgment (q). But if the jury do not assess damages, where damages alone are recoverable, the defect cannot be aided by a release (r). On the other hand, where the plaintiff has had a verdict, and damages assessed upon an immaterial issue, upon which judgment would be arrested, or even where judgment has gone for the .defendant, still, if enough appears upon the pleadings to entitle the plaintiflp to judgment by confession, a writ of inquiry may issue to assess new damages (s). And the plaintiflp, even without leave of the Court, may execute a writ of inquiry to assess damages, where the circumstances of the case have entitled him to enter up judgment )io)i ohslante veredicto (/). So on a demurrer to the evidence, the jury may inquire conditionally of the damages, or a writ of inquiry («■) 10 Rep. 119. (Ic) Clement v. Lewis, 3 B. & B. 297. {I) Hardy v. Bern, 5 T. R. 540, 636. (m) Eichorn v. Lc Maistre, 2 Wils. 307. (w) KynastonY. Mayor of Shmcsbunj, 2 Stra. 10.51. (o) Ecff. V. Fall, 1 Q. B. 636. (p) 11 Rep. 56, a. (?) 2 Roll. 75. (?•) Com. Dig. Dam. E. 8. (s) Lacy v. Reynolds, Cro. Eliz. 214; Jones v. Bod Inner, Cartli. 370; Broome v. JRice, 2 Stra. 873. 0) Shcphnrd v. Halls, 2 Dowl. 453. MAY SUPrLY AN OMISSION BY THE rRINCIPAL .TUr.Y. 443 may issue (u) ; or in an action of dower 7(7i(le nihil hahet (x). In rei)levin, where the plaintiff is nonsuited or has verdict Replevin, against him, the defendant cannot have judgment under 17 Car. II. c. 7, for the arrear of rent, or the value of the dis- tress, unless the jury empannelled to try the issue shall have inquired into the amount (y). But in every other case of replevin, the omission of the jury to find damages for the defendant, whether under statutes 7 H. VIII. c. 4, and 21 H. VIII. c. 10, or under 43 Eliz. c. 2, sect. 19, may be remedied by a writ of inquiry (z). Of course where an act, authorising a distress for local purposes, gives the avowant no damages in case of success, no inquiry is required, or can take place (a). Wliere the plaintiff has a verdict in detinue, the jury should Detinue. assess the value of each article separately (&), and if they do not, a writ of inquiry cannot supply the defect (c). But it would appear that the rule may be otherwise where there is a judgment by default. The latter point arose in a recent case. In an action of detinue, judgment had gone by default. The plaintiff sued out a writ of inquiry, and the jury taxed damages for the detention, but not the value of the goods. Final judgment was issued for a restitution of the goods, or their value (not stating any), and for damages and costs. On error it was held, first, that the judgment, though imperfect, was still final, and consequently a remittitur could not be entered. Secondly, that though probably the Court below might have awarded a fresh writ of inquiry, the Court of Error could not do so, as they had no authority to amend the judgment against the plaintiff in error in favour of the de- fendant in error (d). Thirdly, that the Court of Error could (u) Darrose v. Newhott, Cro. Car. 43 ; Sir James ffarbert's case, Skinn. 595. (x) Say. Dam. 126. h/) See ante, p. 320. (z) Gilb. Distress, 193; Hareourt v. WeeJcs, 5 Mod. i7 ; Herbert r. Waters, Cartli. 362 ; Dcwell v. Marshall, 3 Wils. 442 ; Valentine v. Fawcelt, ^ Stra 'l021 ; and see Wriqht v. Lexois, 9 Dowl. 183. " la) Gotohed r. Wool, 6 M. fe S. 128. {b) Pawly V. Holhi, 2 W. Bl. 853. (c) 10 Rep. 119, h; Herbert v. Wafers, 1 Salk. 205. (d) But now Courts of Error have in all cases power to give such judgment, and award such process, as the Court from which error is brought ought to 444 OMISSION TO ASSESS DAMAGES IN DETINUE. not divide the judgment, so as to allow the plaintiff below to take out execution for his damages and costs alone. Con- sequently judgment was reversed {e). have done, without regard to the party alleging error, Common Law Procedure Act, 1852, s. 157. (e) PhiUlps V, Jones, 15 Q. B. 869, CHAPTER XIX. POWERS OF THE COURT OR JUDGE IN REGARD TO DAMAGES. 1. Right to Begin, 2. Directing the Jury. 3. A unending the Postea, 4. Increasing or Abridging Da' mages. 5. New Trial The last subject we have to consider is the part which may be taken by the Court or a judge in respect to damages ; their duties and their powers. It will be found that very important functions of this sort may be exercised, both during and after trial. 1. A matter of very considerable importance to the plaintiff Right to begin. in many cases, is the right to begin. Many of the principles upon this point are quite unconnected with the topics dis- cussed in this treatise. There is one, however, directly rele- vant, viz., the rule, that no matter on whom the proof of the issue may be thrown by the pleadings, the plaintiff" must begin whenever he proceeds for unascertained damages (a). When, however, the affirmative issue rests in other respects upon the defendant, if the plaintiffs counsel will not undertake to offer proof of substantial damages, the right to commence then passes to the defendant (b). But, even where the judge has ruled wrongly upon this point, a new trial will not be granted, unless manifest injury has been done to the i^arty against whom he decided (c). 2. Another imperative duty resting upon the judge at Nisi Directing the Prius is to direct the jury as to any rule of law by which they ^^^^' (a) Mercer v. Whall, 5 Q. B. 447 ; Edge v. Hillary, 3 C. & K. 43. (h) Chapman v. Rawson, 8 Q. B. 673. (c) Edv)ards v. Matthews, 4 D. & L. 721 ; Brandford v. Freeman, 5 Exch. 734. 446 AMENDING THE P03TEA. Powers of amendment. Application must be made to the judge who tried the cause. ought to be governed in their assessment of damages. Any omission, mistake, or indefiniteness in this respect, in conse- quence of wliich the jury have gone astray, will be set right by a new trial {d), and this whether the point has been taken at the time of trial by counsel or not (e). 3. It sometimes becomes most important to procure an amendment of the postea ; as, for instance, where the officer of the Court had entered nominal damages by mistake, where substantial had been given (/), or where the declaration laid the damages at 100/., and in the Nisi Prius record they were stated to be 100s. (g), or where the jury have not assessed the value of the articles separately in detinue (//), or where general damages have been assessed upon a declaration in which some counts are bad (/'). The rule upon this latter point has been laid down as follows. " If there is only evidence at the trial upon such of the counts as were good and consistent, a general verdict might be altered fi'om the notes of the judge, and entered only on those counts. But if there is any evidence which applies to the other bad or inconsistent counts (as, for instance, in an action for words, where some actionable words are laid, and some not actionable, and evidence given of both sets of words, and a general verdict) ; there the postea cannot be amended, because it would be impossible for the j udge to say on which of the counts the jury had found the damages, or how they had apportioned them. In such a case the only remedy is by awarding a venire de novo " {h). Formerly it seems that the practice was to apply to the Court in which the record was, to make the required amend- (d) Blake v. Midland Ry. Co., 18 Q. B. 93 : Hadley v. Baxendale, 9 Exch. 341. (e) Knight v. Egerton, 7 Exch. 407. (/) Newcoviie v. Green, 2 Stra. 1197. (g) 8 Rep. 157, a. (h) Sand ford v. Alcoch, 10 M. & W. 689. (i) Eddowcs V. Hopkins, 1 Dougl. 377. [k) Per Buller, J., ubi sup. In Williams v. Breedon, 1 B. & P. 329, it •was held, that where damages were assessed generally on several counts, one of which was bad, the postea might be amended from the judge's notes, even though evidence ai^plicable to the bad counts had been given, if it appeared, in fact, that the jmj had calculated damages on evidence only applicable to the good counts. But this decision must be considered a.'; overruled Spencer V. Goter, 1 H. Bl. 78; Bmpson v. Grijffin, 11 A. & E. 186; Reg. v. Virricr, 12 A. & E. 331. final. a]\ip:nding the postea. 447 menfc (/). The modern practice, however, has long established that the proj^er course is to apply to the judge who tried the cause, in order that he may amend such entry by making it conformable with what took place at the trial {m). And his His decision ia determination cannot be reviewed, because the Court has no power to compel a production of his notes (n). And for the same reason, the Court cannot amend a postea by the notes of an arbitrator (o). The only remedy in a case where such an amendment has been wrongly made, is to induce the judge who tried the cause to rescind his own order (p). Perhaps, however, this rule may extend no further than the reason given for it. In one case, where by consent at trial the plaintiff had entered his verdict on two counts, and then applied to the judge to confine it to one, he refused, but re- ferred the case to the Court, to which he transmitted his notes. The Court made the proposed amendment. Tindal, C. J,, said, " If, indeed, damages could have been given on the second count which could not have been given on the first, we should not do what is requested without the concurrence of the judge who tried the cause ; but looking at the two counts we perceive that the cause of action in both is the same ; the charters set out are the same ; and the damages given must have been on the same account. The two counts are merely different modes of stating the same cause of action " (q). Here it is plain that their decision did not rest upon the judge's notes, and could not have been impeded had those notes been withheld. The application may, however, be made to the judge in Court, that he may have the assistance of the other judges (r) ; (I) Eliot V. SJcypp, Cro. Car. 338 ; Hanlcey v. Smith, Barnes, 4i9 ; Mayo V. Archer, 1 Stra. 513 ; Newcomhe v. Green, 2 Stra. 1197 ; Spencer v. Goter, ubi Slop. ; Eddowes v. Hopkins, ubi sup. ; Petrie v. Hannay, 3 T. E. 659 ; Williams v. Breedon, ubi sup. (m) Newton v. Harland, 1 M. & Gr. 958 ; Ernest v. Brown, 4 Bingh. N. C. 162 ; Scougull v. Campbell, 1 Cliitt. 283. (n) Sandford v. Alcock, 10 M. & W. 689 ; Graham v. Bowham, 1 Chitt. 284, n. ; Blair v. Street, 2 Ad. & Ell. 329 : Neiulon v. Harland, ubi sup. ; Daintry v. Brochlehurst, 3 Exch. 691. Contra, Evipson v. Grijfin, 11 A. & E. 186. (o) Scougull V. Campbell, ubi sup. {p) Kilmr V. Bailey, 5 M. & W. 385. (5) Henley v. Mayor of Lyme Rcfjis, 6 Bingh. 100. (r) Harrison v. Kiv(j, 1 B. & A. 163. 448 AMENDING THE POSTEA. From what ma- terials amend- ment may be made. Amendment must be in fur- therance of the intention of the j^iry. and where the judge who tried the cause has left the bench, the amendment may be made by the Court from his notes (s). The postea may not only be amended by the judge's notes, but by those of the associate, or clerk of assize {t), or by those of the under-sheriff who tried the cause ; but in the latter case the application is made to the Com't (w). The amendment must, however, be made from some docu- ment written at the time. Formerly it was held that it could be made from the judge's recollection (x), but this is now over- ruled (y), and the judge's notes, taken at the time, are conclu- sive, and no affidavits can be received to explain or contradict them (z). But although amendments of this nature are allowed in order to carry out the intention of the jury, by making the verdict what they meant, and had virtually found (a), the verdict cannot be altered unless it clearly appears that the alteration would be agreeable to the intention of the jury (ft). Therefore, where in an action on 2 & 3 Ed. VI. c. 13, which gives treble value for not setting out tithes, the jury found a verdict only for the single value, it was held that the postea could not be amended by entering the verdict for the treble value (e). But where the plaintiff was entitled to treble damages, and the jury found a sum as and for single damages specifically, the Court allowed the amount to be trebled (d) ; but there the Court only gave the finding of the jury its legal effect (e). This intention can only be ascertained by what has passed in open Court. If the jury deliver one verdict, affidavits from them cannot be received to show that they intended to deliver another (/). (s) Richardson v. Mellish, 3 Bingh. 334. (t) R. V. Keat, 1 Salk. 47 ; Parsons v. Gill, ibid. 51 ; Pedley v. Frampton, 2 Chitt. 155 ; Sandford v. Porter, ibid. 351. (tt) Wallis V. Goddard, 2 M. & Gr. 912. (x) Eliot V. Skypp, Cro. Car. 338. {il) R. V. Virrier, 12 Ad. & Ell. 337. (z) Everett v. Touells, 4 B. & Ad. 681 ; R. v. Grant, 5 B. & Ad. 1081. (a) Wallis v. Goddard, ubi sup. (b) Spencer v. Goter, 1 H. Bl. 78 ; Reece ■ Brown, 4 Bing. N. C. 167 ; Bull. N. P. 320. (v) Sandford v. Clarke, 2 Chitt. 351. {d) Baldwyn <£• Girrie's Case, Godb. 245. (e) 2 M. & W. 199. (/) Jackson v. Williamson, 2 T. R. 281 479 ; Raphael v. Bank of England,, 17 C. B. Lee, 7 Moo. 269 ; Ernest ; Bentley v. Fleming, 1 161. C. B. AMENDING THE POSTEA, 449 Where on judgment on demurrer for plaintiff, he enters up judgment for himself on two counts, and afterwards discovers an error in one, he may undo his own act, and enter judgment for the defendant on the bad count {g). But where, in a penal action, plaintiff entered the verdict for the penalty on a had count, the Court held that he could not amend, by applying it to another count which was good, though it was proved by the evidence {h). The last remarks which it is necessary to make upon the subject of amendments, relate to the time at which they may be made. Formerly it was held that where damages were assessed At what time the n ^ p L- J.J.1 J. Tii.1 amendment may generally upon detective counts, the postea could not be ^^^ j^^^j^ amended after judgment (i), at all events unless the amend- ment was made in the same term in which the judgment was entered up {k). This seems to have been on the idea that such amendments were made by the common law authority of the judges, which can only be exercised in the same term, while the record is in the breast of the judges, and not in the roll {!). It is now, however, settled that such amendments are made, not at common law, but by virtue of the statutes of misprision, 14 Ed. III. c. 6 ; 9 Hen. V. c. 4 ; 4 Hen. VI. c. 3 ; 8 Hen. VI. cc. 12 & 15, which enacted that the king's judges of the courts in which any record for the time shall be, shall have power to examine such record, and to amend all that which to them in their discretion seemeth to be misprision of the clerks in such record, so that by such misprision of the clerk no judgment shall be reversed or annulled. This was very clearly laid down in a modern case {m). There Patte- son, J., said, "It is said that a judgment cannot be amended • . after the term in which it has been entered up, unless the error to be amended is a mere misprision, and that the error in this case is no misprision. In one sense it certainly is not misprision, for it agrees with the postea, and the only mistake {(j) Spicer v. Teasdale, 2 B. & P. 49. (A) HoUowayy. Bennet, 3 T. R. 448 ; Hardy y. Cathcart, 5 Taunt. 11. (i) Mornington v. Try, Cro. Eliz. Ill ; Sandiford v. Bean, 2 Bac. Abr. 600 ; Grant v. Astle, 2 Doug. 730. {k) Ray v. Lister, Andr. 351 ; Cheveley v. Morris, 2 W. Bl. 1300. (/) 8 Rep. 157, a. (ni) Bowers v. Nieon, 12 Q. B. 546, 557. G G 450 AMENDING THE POSTEA. was in the postea itself. But as soon as the postea had been amended by the proper authority, there was a variance between the postea and the judgment. Now this variance was in the nature of a misprision, and it was properly amended by making the judgment conformable to the postea." And Erie, J., said, "Take the matter up at the time of trial. The judge ought to make a note of the verdict, and this note is to be put out formally in the postea ; and afterwards the officer is to enter up judgment according to the postea. On reference to the learned judge's notes, it turned out that the postea was not according to his note of the verdict. That was a misprision which ought to be amended. Then the judgment was not according to the postea. That was another misprision, which ought to be amended." Those errors which are amendable under these statutes are amendable as well after as before judgment (n) ; even where several terms have elapsed, and after error brought and joinder in error, and argument (o). And the Court of Error will amend the judgment returned to it by the amended record in the court below {})). And they have no authority to question the propriety of such amendment {q). They will also postpone delivering their own judgment, to allow time for an amendment (r). No fixed limit seems to be assigned to the time during which such amendments may be made. In Doe v. PerTcins and Boicers v. Nixon (s), it was said that the amendment might be made at any time. Where, however, eight years had elapsed after the judgment, and after the plaintiff's attention had been pointed to the mistake by a writ of error, and no application to amend was made till after reversal of the judg- ment on eiTor, leave to amend was refused (t). Lord Ellen- borough said, " The moment the writ of error was brought, it (w) 8 Rep. 157, b. (0) 8 Rep. 162, a ; Short v. Coffin, 5 Burr. 2730 ; Pelrie v. Hannay, 3 T. R. 659 ; Doe v. Perkins, ib. 749 ; Hardy v. Cathcari, 1 Mar.sli. 180 ; Usher T. Dansey, 4 M. & S. 94 ; Richardson v. Mellish, 3 Bingh. 334 ; \_Wilhinson\. Sharland, 11 Ex. 33.] (p) 8 Rep. 162, a ; Mellish v. Richardson, 7 B. & C. 819. (5) Mellish v. Richardson, 9 Bingh. 125 ; 1 CI. & Fin. 224 ; [Tetley v. Wanless, L. R. 2 Ex. at p. 279 ; 36 L. J. Ex. at p. 155.] (r) Bowers v. Nixon, 12 Q. B. 546 ; Gregory v. Cotierell, 25 L. J. Q. B. 33, 37. (s) Ubi sup. (t) Harrison v. Ki7iff, 1 B. & A. 161. AMENDING THE POSTEA. was notice to a man who did not sleep the sleep of death over his rights." The fact of notice would probably be the test, for in another case, where a similar application was made nearly a year after trial, when the question arose in the third term after judgment, on the taxation of costs, it was held that the application was in time. Tindal, C. J., remarked that " probably he did not feel hurt by the form of the verdict, till the pressure arose upon the question of costs " (u). It appears also to be doubtful whether such amendment can be made after judgment has been reversed on error. In Richardson v. Mellish (x), the postea was amended before the reversal, though the judgment was not amended in accordance with the postea till after the reversal. In E. v. Carlile {y), an amendment was allowed after reversal. That, however, was a criminal case, and the Attorney-General, who represented the crown, consented to it. In Harrison v. King (z) such an amendment was refused, not apparently so much upon the special ground that the judgment was reversed, as on the general princii^le of laches on the part of the plaintiff. In a later case a similar refusal was given (a). No decision, how- ever, was pronounced as to the power to make such an amend- ment, though it was certainly very much doubted. There were many circumstances in the case decisive against its being allowed. The plaintiff had himself elected the count on which he would enter up judgment, after repeated discussions before the judges, and was therefore bound by his own choice (i). The postea had also been settled with considerable care by the judge who tried the cause. The Court had no original power to compel an amendment, but could only as his assessors and advisers in the matter recommend him to do so (c). Now as a matter of discretion, the lapse of two years after the reversal, and the full knowledge which the plaintiff had received by the writ of error, disentitled him to any indulgence. 4.01 (m) Ernest v. Brown, 4 Bingh. N. C. 166. (x) 3 Bingh. 346. (7/) 2 B. & Ad. 971. (z) 1 B. & A. 161. (a) Jackson v. Galloway, 1 C. B. 280. (h) Holloway v. Bennett, 3 T. R. 448 ; Hardy v. Cathcart, 5 Taunt. 11. (c) Per Maule, J., 1 C. B. 296. G 2 452 INCREASING OR ABRIDGING DAJIAGES. Power to increase 4. The power of the Court to alter the assessment of damages damaS? *^° ^7 t^^ir own independent authority has undergone a complete change. It was always admitted that in cases where the amount of damages was uncertain, their assessment was a matter so peculiarly within the province of the jury that the Court could not alter it {(I). On the other hand it is laid down in old books, that wherever the demand of the plaintiff is certain, as in an action of debt, the verdict may be increased or abridged by the Court (e). And so in cases of mayhem, there is a long cm-rent of decisions to show that the Court have the power of increasing the damages given by the jury, either upon an inspection of the wound by the Court, or upon a certificate fi'om the judge who tried the cause (/). But I am not aware of any instance in which such a jurisdiction has been exercised in modern times. The Court will not even increase the damages upon an affidavit by all the jurj' that they thought the effect of their verdict would be to give the plaintiff a larger sum than it did (g). Nor where the cause was undefended, and the plaintiff's counsel took a verdict for principal alone without interest (h). And where the damages found by the jury have been assessed on a principle assented to by the counsel on both sides, the Court will not interfere to alter the amount of the verdict, on affidavits that counsel were mistaken in that which they assumed as the basis of their cal- culation (/). And so in an action of debt on 2 & 3 Ed. VI. c. 13, which gives treble value for not setting out tithes, the jury found a verdict for the single value only, and it was held that the postea could not be amended by entering the verdict for the treble value. The Court said, " Had this been an action for penalties, and the jury, upon the plea of not guilty, had found that the defendant was guilty of the premises, and (d) Delves v. Wyer, 1 Bro-mil. 204 ; Jenk. 2nd Cent. 68, pi. 29 ; Bonham V, Sturton, Dy. 105, a ; Hawkins v. Sciet, Palm. 314. (e) 11 H. IV. 10 ; 10 H. VI. 25 ; 32 H. VI. 1. (/) 39 Ed. III. 20; Tripcony's case, Dyer, 105, a; Mallet v, Ferrers, 1 Leon. 139 ; Hooper v. Pope, Latch. 223 ; Austin v. Hilliers, Hardr. 408 ; Move's case, Freeman, 173 ; Cook v. Beal, 1 Ld. Rajnn. 176 ; BrowJi v. Seymour, 1 Wils. 5 ; Hoare v. Crazier, 2 Tidd. Pra. 9tli ed. 896 ; Small- piece V. Bockingham, Bull. N. P. 21. {g) Jackson v. Williamson, 2 T. R. 281. (h) Baker v. Brown, 2 M. & W. 199. {i) Hilton V. Fowler, 5 Dowl. 312. INCREASING OR ABRIDGING DAMAGES. 4o3 that the single value of the tithes was so much, then the plain- tiff might come to the Court, to have the judgment entered up for treble value as given by the statute. But if the jury, as in this case, find that the defendant owes the plaintiff so much, we are bound to conclude from the postea, that they have taken into consideration all the damages that the plaintiff was entitled to recover. There is nothing in this case to show that the jury have only found the single value, and we cannot allow the matter to be explained by affidavit" {Ic). On the other hand, where the plaintiff was entitled to treble damages, and the jury found a sum as and for single damages specifically, the Court allowed the amount to be trebled {I). But there the Court only gave the finding of the jury its legal effect {m). Where, however, the plaintiff had evidently sustained some damage, but the jury, being unable to ascertain the amount found a verdict for the defendant, the Court permitted the plaintiff to enter a verdict for nominal damages {n). Nor will the Court in any case now reduce the damages without the consent of the plaintiff, and if he refuse, they can do nothing but order a new trial (o). It is also laid down in many old cases, that damages upon a writ of inquiry may always be increased or reduced at the pleasure of the Court {p), because the Court themselves, if they had so pleased, might upon an interlocutory judgment have assessed the damages, and the inquisition is only a matter of course, taken to satisfy the conscience of the Court {q). In practice, however, the Court never do so now, but award a new writ of inquiry in all cases in which they would award a new trial (r). Where the amount of damages depends upon a question of Leave to reduce law, the general mode adopted, with a view to save the "Z" '"^jcase the expense of a new trial, is to obtain the opinion of the jury upon the amount of damages proper to be given in either (h) Sand ford v. Clarke, 2 Chitt. 351. (/) Baldwyn <& Girrie's case, Godb. 245. (m) 2 M. & W. 199. (n) Feise v. Thompson, 1 Taunt. 121. (o) Leeson v. Smith, 4 Nev. & M. 304 ; Moore v. Tuchcell, 1 C. B. 607. (p) 14 H. IV. 9; 3 H. VI. 29 ; 19 H. VI. 10, 28 ; Cook v. Beal, 1 Ld. Eaym. 176. (q) Yelv. 152 ; 2 Wils. 374; Bruce v. Rawlins, 3 "Wils. 62. (r) Chitt. Prac. 9th ed. 939, 1438 ; [12th cd., 1004, 1533.] 46i INCEEASING OR ABRIDGING DAMAGES. New trial granted where tliere has lieen error in matter of law. alternative, or to settle such amount by consent. A verdict is then entered according to one view of the case, and leave is given either to the plaintiff to move to have it increased, or to the defendant to have it reduced (s). The motion in this case must be made within the time limited for moving for a new trial {t). In one case where a rule tiisi to reduce damages had been granted, the Court refused to allow execution to issue for the part admitted, unless the plaintiff would resign the rest. Vaughan, B., said, "That the object was to have execution without any judgment to warrant it " (ii). But it seems that where part is admitted to be due, the Court will make it a con- dition of granting the rule 7iisi to reduce, that the plaintiff be allowed to issue execution for and levy that part {x). 5. It appears then that the question of practical impor- tance with regard to the power of the Court over the amount of damages, is as to the cases in which a new trial will be granted. This will always be allowed where the damages were affected in amount by improper evidence being admitted, or the jury being allowed to take into consideration a ground of claim, or mitigation which could not be supported in law (y); or where the jury give greater damages than are laid in the declaration (2) ; or where a case of surprise is made out (a); or where the judge has omitted to direct the jury as to the proper measure of damages (b) ; or where there has been positive misdirection on his part, or misbehaviour on the part of any other person (c). Where, however, on the execution of a writ of inquiry, the jury asked what amount of damages would carry costs, and the undersheriff told them any sum would do, upon which they returned a verdict of Id. ; it was held to be no ground for a new trial, as it did not amount (s) Chitt. Prac. 430, 9th ed. ; [460, 12th ed.] (t) Masters v. Farris, 1 C. B. 715. (u) Hellings v. Young, 3 Sco. 770. {x) Darey v. Phelps, 2 M. & Gr. 300 ; Bate v. Pane, 13 Jur. 609. (y) Woodford v. Eades, 1 Stra. 425; Tuiton v. Andrews, Bames, 448; Jenney v. Brook, 6 Q. B. 323 ; Lock v. Ashion, 12 Q. B. 871. (2) Scale V. Hunter, Lofft, 28. (a) Hall V. Stone, 1 Stra. 515. (6) Knight v. Egerton, 7 Exch. 407 ; Hadley v. Baxcndalc, 9 Exch. 341 ; 23 L. J. Ex. 179. (c) Markham v. Middleton, 2 Stra. 1259. NEW TRIAL. 455 to a misdirection, not being wrong information on a matter wliich was directly in issue, or which was substantially con- nected with the finding on the issue {d). Finally, a new trial will sometimes be granted, on the ^^'■'^ ^'■'^^^ ground that the damages are too small, or excessive. It has been frequently decided that where the action is for will not be unliquidated damages, the Court will not grant a new trial on aTmagi TreTm- account of their being too low (e), unless there has been some liquidated on the mistake in a point of law on the part of the judge who pre- bei^too^smaii. sided, or in the calculation of figures by the jury (/). The alleged reason is, that new trials came only in the room of attaints, as being an easier and more expeditious remedy, and no attaint would lie for giving too small damages (g). Accord- ingly a new trial has been refused, where in an action of trespass, for bringing the plaintiff before a magistrate on an unfounded charge of felony, only Id. damages were given, though a question of character was involved (h). So where the jury only gave bl in an action for maliciously suing out a commission of bankruptcy against the plaintiff, though he proved that it had cost him 30?. to set it aside, and no evidence was offered on behalf of the defendant («). And so where in an action for assault and battery only 8/. were assessed, though it appeared that his cure had cost him 181, and no evidence was given to the contraiy (k). In one case, where the action was for running over the plaintiff, whose thigh was broken, and his surgeon's bill came to 10?., a new trial was granted, the jury having only awarded id. damages. Lord Denman said, " A new trial on a mere difference of opinion as to amount may not be grantable, but here are no damages at all " (?). On the other hand, in a later case, where the same damages were (d) Grater v. Cullard, 6 Dowl. 503. [See Kilmore v. Abdoolah, 27 L. J. Ex. 307.] (e) Marsham v. Bidler, 2 Roll. Rep. 21 ; Hayioard v. Newton, 2 Stra. 940 ; Barkery. Dixie, ibid. 1051 ; Lord Oowerv. Heath, Barnes, 445 ; Surges V. Nightingale, Barnes, 230 ; Busselv.Ball, Barnes, 455; Anon. 2 Leon. 214 ; Manton v. Bales, 1 C. B. 444. (/) Rendall v. Hayward, 5 Bingh. N. C. 424 ; [Forsdike v. Stone, L. R. 3 C. P. 607 ; 37 L. J. C. P. 301 ; Wilson v. Hicks, 26 L. J. Ex. 242 ; Nichol V. Bestivick, 28 L. J. Ex. 4.] {g) Barker v. Dixie, uhi sup. (h) Apps V. Day, 14 C. B. 112. [And see Forsdike v. Stone, siqyra.] (i) Mauricet v. Brecknock, 2 Dougl. 509. (it) Donelly v. Baker, Barnes, 154. \l) Armytaye v. Haley, 4 Q. B. 917. been miscouduct of the jury, 456 NEW TRIAL. given in an action against a surgeon for negligence, whereby the plaintiif lost his thigh, a new trial was refused. Tindal, C. J., said, " It is not usual with the Coui't to grant anew trial on the ground that the damages are smaller than the Court may think reasonable. At any rate a new trial ought not to be granted on such a ground, unless the judge who tried the cause is dissatisfied with the smallness, which, as the learned judge has informed us, is not the case in the present instance " {m). So strict is the rule, that no remedy can be had where the jury only gave Is. damages, though it was admitted that they would have given 405. had they known that unless there has amount was necessary to carry costs («). Nor will a new trial be granted on the ground that from the smallness of the damages the jury must have come to a compromise, unless from the circumstances of the case, it is evident that there has been a total refusal of the jurors to discharge their duty, and the verdict is necessarily wholly inconsistent ; as, for instance, where where is a verdict for the plaintiif of ^d. on a bill of exchange, where the only plea was that the bill was forged (o). New trial will be Even independently of misconduct on the part of the jurors granted where ^^^.j l -j^ ^^ granted wherc the action is on a contract there is a mea- " sure of damages, for a fixcd sum, and by some mistake or accident a verdict has been taken for a smaller amount ; as, for instance, on a covenant to pay a sum of money generally (^;) ; or as liquidated damages (q) ; or in an action on a promissory note, where less than the amount has been given (r) ; or interest has been withheld without proper cause (s). And so it was allowed where the plaintiflP, in an undefended action for a mortgage debt, had omitted to have interest assessed (/). (m) Gibbs V. Tunaley, 1 C. B. 640. («) Mearsv. Grijffin, 1 M. & Gr. 796; [Kilmwe y. Abdoolak, supi-a.] (o) Hichards v. Hose, 23 L. J. Ex. 3 ; 9 Exch. 218, S. C. [See Kcl/y v. Sherlocl; L. R. 1 Q. B. at p. 695 ; 35 L. J. Q. B. at p. 212 ; per Mellor,' J.] (p) Anon., Salk. 647 ; Lethbridgev. Mytton, 2 B. & Ad. 772. (5) Farrant v. Olmius, 3 B. & A. 692. (»•) Riissel V. Ball, Barnes, 455. (s) Laing v. Stone, 2 M. & E. 561 ; Du Belloix v. Waterpavlc, 1 D. & K. 16 ; Cameron v. Smith, 2 B. & A. 308. (t) Bakery. Brvivn, 2 M. & W. 199. [See further as to setting aside a judgment on the ground of mistake in claiming too little, Ca7ina7i v. Rcynohh, 5E. &B. 301; 26 L. J. Q. B. 62.] NEW TRIAL. 457 Where the plaintiff has suffered damages to be assessed Contingent as- contingently, he cannot afterwards claim a new trial, on the ^^'^^^^^ • ground of their being insufficient («). The power of the Court to grant a new trial, on account of the New trial on the excessiveness of damages, seems to be comparatively modern, d!^°nac-er being and to have sprung up when attaints fell into disuse (x.) excessive. Accordingly the Court held in several cases that they had no right to interfere, where there had been no misbehaviour on the part of the jury, and there was no measure of damages by which they could correct the mistake (y). It is now, how- ever, well acknowledged, that whether in actions for malicious prosecution, words, or any other matter, if the damages are clearly too large, the Court will send the inquiry to another jury (2). But it must appear from the amount of damages, as compared with the facts of the case laid before the jury, that the jury must have acted under the influence either of undue motives, or of some gross error and misconception on the sub- ject (a). And in a case of uncertain damage, where matters have been left properly for all the parties to the sound discretion of the jury, in a subject of which they are competent and pro- per judges, a new trial will not be granted, "because if the Court had been to fix the damages, they might have given less" (&). The case must be very gross, and the damages enormous, for the Com-t to interpose (c). And where the judge has recom- mended the jury to give nominal damages, and they award substantial damages, the verdict cannot merely on this account be treated as perverse (d). Every case must of course be judged upon its own peculiar facts. It may be useful, however, to give a few instances of the manner in which the Courts have exercised their discretion upon this point. Where custom-house oflBcers entered the plaintiff's dwelling- J^^Jf^^^^^^^^^^;]! house in the day, without a constable, but with a writ of ,^^^^^^^_ (m) Morrish v. Murrey, 13 M. & W. 52 ; Booth v. Clive, 10 C. B. 827. (x) Barker v. Dixie, 2 Stra. 1051. (y) Wilford V. Berkeley, 1 Burr. 609 ; Duberley v. Gunnmr/, 4 T. K. 651. (2) Per Mansfield, C. J., Hewlett v. Cruchley, 5 Taunt. 277 ; Gillert v. Burtenshaw, Govqi. 230. (a) Per Lord Ellenborough, Chambers v. Caulfield, 6 East, 256. (6) Gilbert v. Berkinshaw, LolTt, 771, 774. (c) Per Yates, J., 3 Wils. 63 ; and see j^cr Cur. 2 Wils. 250; and per Pratt, C. J., 2 Wils. 207. {d) Chilvers v. Greaves, 5 M. & Gr. 578. NEW TRIAL. assistance, to search for uncustomed goods, and stayed in the house about an hour, but broke open no door, or lock, or bolt, and did little or no damage, sums of 100^. and 200?. were held not to be excessive. Gould, J., said, " The entering the plain- tiff's house under colour of legal authority aggravates the trespass " (e). In trespass for forcible entry into a dwelling- house, and remaining there three or four days under colour of a distress for rent, it appeared that one defendant claimed a title to the property, which he chose to assert in this manner, though without a shadow of right. The others were a broker and assistants. The Court refused to set aside a verdict for 1000/. (/). Trespass against a landlord for injury to his tenant's crops, by entering to cut and remove timber without applying for leave. The whole value of the crops was 200?., and the jury found a verdict for 300/. The Court refused to set it aside. Maule, J., said, "If we were to hold that the jury, in estimating the damage for an unlicensed trespass of this sort, are to be restrained to exactly the amount of the injury sustained by the plaintiff, it would in effect be placing the wrong-doer upon precisely the same footing as one who enters with the owner's permission. Besides it is to be ob- served that this was not the case of a single act of trespass, but of a series of trespasses, persisted in day after day, and for several weeks, and that this was done for the pecuniary benefit of the defendant" {g). So where the defendant, a banker and M.P., persisted in shooting upon the plaintiff's land, though requested to desist, and used insolent language, bOOl was held not to be excessive {h). Where the defendant struck the plaintiff in a quan-el, in the course of which the plaintiff had called him a scoundrel, a verdict for 200/. was sanctioned (?'). And Heath, J., said, " he remembered a case, where a jury gave 500/. damages for merely knocking a man's hat off, and the Court refused a new trial" (/c). (e) Bruce v. Rawlins, 3 Wils. 61 ; Redshaw v. Broolc, 2 Wils. 405. [See also Thomas v. Harris, 27 L. J. Ex. 353.] (/) Bland v. Bland, 1 il. & W. 167. See Gregory v. Cotttrell, 22 L. J. Q. B. 217. -^ ig) Williams v. CiLrrie, 1 C. B. 841, 847. {h) Merest v. Harvey, 5 Taunt. 442. {i) Grey v. Grant, 2 Wils. 252 ; Ducker v. Wood, 1 T. R. 277. • ^k) 5 Taunt. 443. KEW TEIAL. 459 Malicious prose- cution. In the celebrated cases of arrest under general warrants, False imprisou- 300/. was held not to be excessive in an action against the "^^"*" king's messenger, who had treated the plaintiff with great civility, and only detained him six hours {I). And in a more aggravated case of the same nature, where the plaintiff was kept in custody for six days, a verdict for 1000/. was sus- tained (m). So 200/. damages were held not to be too great, where the plaintiff had been kept a night in custody on a charge of felony {)i). And where the plaintiff in an action for false imprisonment was a native of Minorca, and the defen- dant was the governor, 3000/. damages was allowed (o). "Where the defendant, an attorney, brought seven indict- ments for felony against his clerk, keeping the matter secret from him, and gave no evidence when the case came on, upon which the plaintiff sued him for a malicious prosecution, it was held that 2000/. damages was not excessive; and that it was no excuse that the defendant had obtained counsel's opinion advising the prosecution, when the case laid before him was not rightly stated. Mansfield, C. J., asked, " Could any one say that any rational man of character would for 2000/. put himself in this situation ? If not, the damages are not excessive" (p). And in another case, where the plaintiff was arrested and indicted for felony, out of mere revenge, and without a shadow of pretence, 10,000/. was allowed (q). It has been said in cases of seduction, that actions of that Seduction, sort are brought for example's sake, and that although the plaintiff's loss may not really amount to the value of 20s., yet the jury do right to give liberal damages (r) ; accordingly 200/. was allowed in one case, though the defendant had been placed in circumstances of peculiar temptation by the female's own mother (s). So in cases of crim. con., verdicts of 500/. Crim. con and 5000/. were sustained, though in the former case the (l) HucUe V. Money, 2 Wils. 205. {m) Beardmore v. C'arrivgton, 2 Wils. 244. (n) Mgell v. Francis, 1 M. & Gr. 222. (o) Fabrigas v. Modyn, 2 W. Bl. 929. («) Hewlett y. Cruchley, 5 Taunt. 2,7. (q) Leith V. Pope, 2 W. Bl. 1327. (r) Per Wilmot, C. J., Tullkhje v. Wade, 3 Wils. 18. (s) Bennett v. Allcutt, 2 T. E. 166. 460 NEW TRIAL. defendant, who was a clerk at 50^. a year, had been himself seduced by the wife ; and in the latter, the plaintiff was at the time keeping a mistress, and had permitted the defendant to take indecent liberties with his wife in his presence (0- And 2000?. was held not to be excessive, though some time before a deed had been entered into, providing for the future separa- tion of husband and wife, upon certain contingencies, but under terms which entitled him to her assistance in the care of his children (u). Breach of pro- Sums of 400?. and 3500/. have been allowed in actions for mi&eo marriage. j|^j,gj^g]^ ^^ promise of man'iage, according to the wealth of the defendants {x). T^-oyer. Iq trover for a diamond necklace, part only of which was traced into the defendant's hands, the Court refused to set aside a verdict for the whole value, as the defendant's affidavit did not allege that the whole of it had never been in his pos- session (y). And so in an action for an apothecary's bill, con- sisting of a great number of items, a rule for a new trial was refused, where the jury had given a verdict for the whole sum claimed, though every item was not proved, evidence having been given as to some of them (2). But a contrary decision was given in another case, where the claim was for work and labour, and an entire verdict given, several of the items being unsustaincd (a). Where the plaintiff is willing to rectify any mistake in the assessment, the Court will not set aside the verdict if it can possibly be sustained, as this would be to allow the defendant a fresh chance of a finding upon the issues, under the pretext of objecting to the amount of damages (b). Nor will they, upon an application for a new trial on the ground of excessive damages, hear affidavits of the defendant's witnesses to explain or add to anything said by them at the trial {c). (t) Wilford V. Berleley, 1 Burr. 609 ; Duherlcy v. Gunning, 4 T. R. 651 ; sed qucBve ? (u) Chambers v. Caulfield, 6 East, 244. (x) Harrison v. Caye, Garth. 467 ; Wood v. Uurd, 2 Biugh. N. C. 166. (y) Mortimer V. Cradock, 12 L. J. C. P. 166. (z) Wheeler v. Sims, 5 Jur. 151. (a) Brewer v. Jackson, 5 Jur. 701. (6) Thomas v. Fredricks, 10 Q. B. 775. (c) Phillips V. Halfield, 8 Dowl. 882. NEW TRIAL. 461 Wliere an excessive verdict is given, it is usual for the judge to suggest to counsel to agree on a sum, to prevent the neces- sity of a new trial {d). The following are instances of a contrary discretion being Cases in which a exercised by the Court. Where the action was for diverting aiToweT plaintiff's water-course, and 3000Z. was given, the Court set it aside as being excessive and not warranted by the evidence ; it being a mere question of property as stated on the record, wltere there was something to measure the damages by, namely, the deterioration of the property itself, and therefore not like cases of personal injuries, as actions for adultery, slander, &c. Though they said that even in a case like the present, which was attended with several circumstances of aggravation, they would not measure the damages which the jury had given in a nice balance ; but making a very liberal allowance in that respect, they were still bound to take care that the verdict should not greatly exceed the damage proved. They ordered the former verdict, however, to stand security for the damages that might be given on the second trial {e). And where, in an action for assault, it appeared that the plaintilf was servant to the defendant, and that on receiving a slight blow for impertinent behaviour he had fallen upon his master, and beaten him violently, a verdict of 405. was set aside as excessive (/). In a later case an importunate beggar having refused to quit defendant's house, defendant had him arrested by a constable, and kept in custody one night at an inn. The next day he was brought again before the defendant, and said he must have some money, upon which defendant told him he might have two sovereigns, or go before a magistrate. Plaintiff consented to take the money, but said he must have something more to pay his expenses, upon which defendant gave him half-a-crown and some refreshment, and plaintiflF went away. He sued defendant, and recovered 100/., no plea of accord and satisfaction having been pleaded. A new trial was granted, on the ground that he had himself set a hmit upon his demand {g). id) 7 Bingh. 320. (e) Pleydell v. Earl of Dorchester, 7 T. R. 529. (/) Jones V. Sparrow, 5 T. R. 257. {g) Price v. Severn, 7 Bingh. 316. 462 NEW TP.IAL. New trial where The Courts make it a rule not to grant a new trial when the verdict is under ^^^^^^^ jg f^^ jggg ^j^an 20?., unless they can grant it without costs (h). This rule, however, does not apply where the matter in dispute inyolves a question of permanent right (i), or where the verdict is perverse (Jc). And in a recent case, where the verdict was under 20/., a new trial was granted, on the ground that the judge who tried the cause was dissatisfied with the verdict, and that there was an uncontradicted affidavit that one of the jurymen had misconducted himself, by expressing a strong opinion against the defendant, when he had not heard his case, but only that of the plaintiff (/), Nor does the rule extend to cases tried before an inferior court on a writ of trial {m), in which a new trial will be granted unless the damages are under 5/. (;0- A judgment may be maintained as to part, and reversed as to damages (o). (k) V. Phillips, 1 C. & M. 26 ; Woods v. Pope, 1 Bingh. N. C. 467. (i) Turner \. Lewis, 1 Chitt. Rep. 265 ; Allum v. Botiltbee, 9 Exch. 739, overruling Sowell v. Champion, 6 A. & E. 407. (k) Freeman v. Price, 1 Y. & J. 402. [A perverse verdict would seem to be one which is contrary to the direction of the judge, there being no dispute as to the facts ; see fjer Jervis, C. J., in Hawkins v. Alder, 18 C. B. 640 ; and per Bramwell, B. , in Ada7ns v. Midland Ry. Co., 31 L. J. Ex. 35.] {I) Allum V. Boidthee, uhi sup. [The rule is not altered by the C. L. P. Act, 1854, 17 & 18 Vict. c. 125, s. 44; Hawkins v. Alder, 18 C. B. at p. 641, per Willes, J.] (m) Taylor v. Helps, 5 B. & Ad. 1068. (w) Packham v. Newman, 1 C. M. & R. 585 ; Fleetwood v. Taylor, 6 Dowl. 796. (o) Frederick v. Lookup, 4 Burr. 2018 ; Cuming v. Sihly, ibid. 2489. CHAPTEE XX. ASSESSMENT OF DAMAGES IN THE COURT OF CHANCERY. [The Chancery Amendment Act, 1858 (21 &"22 Yict., c. 27), 21 & 22 Vict, commonly called Lord Cairns' Act, enacts that " in all cases in ^ ^7, Lord which the Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continu- ance of any wrongful act, or for the specific performance of any covenant, contract, or agreement, it shall be lawful for the same Court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such in- junction or specific performance " (a). The Court may cause the amount of the damages to be assessed, or any question of fact arising in the suit to be tried, by a special or common jury before the Court itself (b), or before the Court itself without a jury (c), or by a jury before a judge of the Superior Courts of Common Law at Nisi Prius, or at the assizes, or before the sheriff of any county or city {d). New trials may be applied for ; and where the trial has been before the Court without a jury, the application may be made either to the judge before whom the trial was had or to the Court of Appeal in Chancery (e). Where the Court awards damages, and directs a trial or jroney may be writ of inquiry as to the amount, the defendant may, on paiJ into court, obtaining leave of a judge at chambers, pay money into court. In the event of a larger sum for damages not being awarded, [(a) 21 & 22 Vic. c. 27, s. 2. (b) Ibid. s. 3. (c) Jbid. s. 5. (d) Ibid. s. 6. (e) Ihid. s. 5.] 4G4 ASSESSMENT OF DAMAGES IN THE COURT OF CHANCERY. It is not com- pulsory on the Court to award damages. the plaintiff will have to pay the costs of the trial or inquiry, unless the Court otherwise directs (/). It is in the discretion of the Court whether it will award damages under this Act, or leave the plaintiff to obtain them at law, and this notwithstanding the " Chancery Regulation Act, 1862 " (25 & 26 Vict. c. 42), commonly called Sir John Rolfs Act, which enacts that in all cases in which any relief or remedy within the jurisdiction of the Court of Chancery is sought in any cause instituted therein, every question of law or fact cognizable in a Court of Common Law, on the deter- mination of wliich the title to such relief or remedy de^xinds, shall be determined by or before the same Court [g). The Court will not interfere to award damages under 21 & 22 Vict. c. 27, where it would not have interfered to grant relief be- fore the statute {h) — as, for example, where the suit is for specific performance of an agreement for a partnershij) (?). But damages may be awarded although the case for an injunction fails {k), or although from circumstances which have arisen since the institution of the suit an injunction or specific performance cannot be decreed. For example, in a suit for specific perform- ance, where performance was obtained from the defendant before the hearing, the Court directed the damages to be assessed by a jury in a court of common law {I). And where the suit was to restrain the infringement of a patent, an inquiry was directed as to damages, although the patent had expired pending the litigation (m). But the Court will not grant relief where the bill is filed for damages only (n). Therefore James, V. C, refused to entertain a bill filed so immediately before the expiration of a patent that it was impossible to obtain any equitable relief before the patent expired. He treated it as a mere device to obtain an award [(/) Consolidated Orders xli., Rule 40. Part iv. of tliis order regulates the proceedings under the Act, and schedule (N) to the orders contains the forms referred to in the order. {g) Johnson v. Wyatt, 2 De G. J. & S. 18 ; Sivaine v. G. N. Ry. Co., 4 De G. J. & S. 211 ; 33, L. J. Ch. 399 ; Durell v. Pritchard, L. R. 1 Ch. 244 ; 35 L. J. Ch. 223. (A) Pel- Giffard, V. C, L. R. 7 Eq., at p. 116. (i) Scott V. Rayment, L. R. 7 Eq. 112. (k) Cattonv. Wyld, 32 Beav. 266 ; Eastwoods. Lever, 4 Dc G. J. & S. 114 : 33 L. J. Ch. 355. (I) Cory Y. Thames Iron WorJcs Company, 11 W. R. 589. (m) Davenport v. Rylands, L. R. 1 Eq. 302 ; 35 L. J. Ch. 204. (n) MiddUton v. Magnay, 2 H. & M, 233.] ASSESSMENT OF DAMAGES IN THE COURT OF CHANCERY. 465 of damages ia the Court of Chancery instead of in a court of Common Law (o). The power of a court of equity to give damages is not confined to cases in which the plaintiff could recover damages at law (2?) ; and the damages awarded differ from those which could be obtained at law in being given by way of compensa- tion for permanent injury once for all, not as at law where successive actions may be brought and damages recovered to ties quoiies (q). Damages will not be awarded in addition to specific per- Special damage , -IT -1 ii ii.1 must be shown. formance unless special damage is shown to have resulted from the delay in completing the contract (r). They may be awarded although not specifically asked for in Damages may he the bill, the general prayer for relief being sufficient(5)]. general' praj-er [(0) Betts V. Gallais, L. R. 10 Eq. 392. ip) Eastwood V. Lever, 4 De G. J. & S. 114 ; 33 L. J. Ch. 355. (q) Per Lord Cranworth, C, Stoles v. City Offices Co., Limited, 13 L. T. N. S. 81. (r) Chinnock v. Marchioness of Ely, 2 H. & M. 220 ; 34 L. J. Ch. 399. (s) Caiton v. Wyld, 32 Beav. 266. See, further, as to the Act, and for cases in which the Court, in its discretion, has awarded or refused damages, Morgan's Chancery Acts and Orders, 261, 4th ed. ; Kerr on Injunctions, 221 ; Joyce on Injunctions, 593 ; and Daniell's Chancery Practice, vol. i., p. 946, 5th ed.] for relief. ( INDEX, ABANDONMENT, when loss is total without. See Marine Insurance, 257. when necessary to make loss total. See Marine Insurance, 258 —260. notice must be given, except in case of freight, 260. effect of ineffectual notice, whee subsequent total loss, 260 valid notice, when loss afterwards becomes partial, 263. ACCEPTOR, liability of. See Bills, 174. ACCIDENT, damages on an insurance against, 251. action for injury caused by, 351. when brought by executors. See Executors, 392. limited liability of shipowners. See Carriers, 223 — 226. ACCOUNT, when damages are recoverable in action of, 284. liability of receiver for profits which he might have made, 284. ACCOUNT STATED, some item must be proved to sustain action on, 6 (n). ACTIONS. See Costs of Actions. ADJUSTMENT, example of, 277. at foreign port, when binding on underwriters, 269. ADULTERY, damages in suits for dissolution or judicial separation, 380. claims are to be tried on same principles as actions formerly, 380. general grounds of damages in action foi", 381. entire separation a bar to an action for, 381. otherwise when partial, or not by deed, 382. evidence of terms upon which the parties lived ; letters when admissible, 74, 382. infidelity of husband, 383. previous character of wife, 383, negligence of husband, 384. solicitations by wife, 384. wealth of defendant, 385. former recovery against another defendant for adultery, 386. application of damages in divorce suits, 386. AGENT. See Principal and Agent. AMENDMENT of postea, in certain cases, 446. in case of general verdict upon several counts, if no evidence was offered on the bad ones, 446. application must be to the judge who tried, 446. may be made to him in full court, 447. his decision is final, 447. he cannot be forced to produce notes, 447. from what notes it may be made, 448. not from recollection of judge, 448. H H 2 468 INDEX. AMENDMENT— (con^mwefZ.) must be in furtherance of intention of jury, 448. intention how ascertained, 448. is made by virtue of statutes of misprision, 449. up to what time it may be made, 450. refused where there has been laches on the part of claimant, 4.')0 where claimant has exercised his own discretion, 449, 451. ANNUITIES, interest is not recoverable upon arrears, 110. APPORTIONMENT, salary now within statute of, 160. See Rent, 184—187. APPRAISEMENT, selling without. See Illkoal Distress, 324. ARBITRATION, submission to by executor, 399. ARREST. See False Imprisonment, 349—351. ASSAULT. See False Imprisonment, 349—351. Negligence, 351. ASSIGN, covenant not to, 205. ASSIGNEE of a lease, his liability for breach of covenants, 193, 19G, 240. action by against assignor, 55. by assignor against, 240. of a debt takes subject to debtor's right of set off, 94 ASSIGNEES IN BANKRUPTCY. See Bankrdptcy. ATTORNEY, may recover unless charges have been uselessly incurred, 69. may set off bill though not delivered a month before action, 81. contract with is an entire one, 153. only liable for negligence to the extent of loss resulting, 359. may show in bar of action that there has been none, 360. prospective damages against, 360. damages where record is withdrawn, 361. where cause is taken as undefended, 361. AVERAGE, GENERAL, how defined, 269. ship, freight and goods carried for traffic, contribute; deck \ goods, 270. bullion and jewels, unless carried on the person, or as part of luggage, 270. provisions and stores do not, unless carried as freight, 270 goods carried by mariners, unless in lieu of wages, 271. mariners' wages do not, unless in case of ransom, 271 goods sacrificed contribute, 271. only property exposed to risk contributes, 271. freight must have been pending at time of sacrifice, 271. valuation of loss in case of goods or valuable articles, 272. deck goods, freight, ship, 273. when sale of goods for repair of ship constitutes an average loss, 274. how valued, 222, 274. effect of subsequent loss of ship, 275. money raised for general safety, 275. mode of valuing property saved in case of ship or goods, 275. in case of freight, 276. usual place of adjustment, 275. example of adjustment, 277. AVERAGE, PARTICULAR, what is a total loss of goods free from, 261. when a sale of goods for repairs amounts to a, 274 AWARD, interest upon amount of, 108. INDEX. 4G9 BAIL, actions by, against their principal, 247. BAILEES, may recover full value of goods on policy of insurance, 255. will be trustees of residue above interest for the owners, 255. will recover in trover whole value of goods against a stranger, 300. only amount of interest against owner, 300, BANKRUPTCY, mutual credit in. See Set-off, 87—92. BANKRUPTCY, TRUSTEES IN, actions by, 406—411. can only sue in respect of loss to the estate, 406 may sue for breach of contract to employ, 407. not for a mere personal wrong to the bank- rupt, 407. or trespass to lands or goods in his possession, 40S. unless some pecuniary penalty was annexed to it, 408. or it has caused injury to the estate, 408. nor for personal labour after bankruptcy, 410. unless a large sum has been accumu- lated by it, 410. or mixed with other debts for which they can sue, 410. when bankrupt's interest in a right of action of wife passes, 411. bankruptcy of partner, 411. not necessary to prove substantial damage, 408 loss to the estate is the measure of damage, 408. unless where the right to a specific sum has once vested, 409. BEGIN, light to, when plaintiif proceeds for unascertained damages, 445. BILLS OP EXCHANGE AND PROMISSORY NOTES,_ interest always allowed on up to time of signing judgment. 111, 171. may be withheld, in case of laches, if not expressly reserved, 171. not given while note in hands of alien enemy, 171. where expressly reserved, runs from date, 171, though no action could have been originally maintained, 171. if given as a legacy, interest would run from maker's death, 17-'. where not reserved, interest runs from maturity, 172. if payable on demand, from demand, 172. liability of drawer, endorser, or guarantor, 'for interest, 172. when note payable by instalments, 17<3. does not run after a tender, 173. must be included in amount paid into court, 173. cannot be recovered from maturity of bill unless produced, 173. calculated at current rate of place whose laws govern payment, 173. lex loci solutionis is the lex loci contraciils, 173. hence different liabilities of acceptor, drawer and endorser, 174. where expressly reserved, governed hy lex loci contraclih, 175. when goods are to be paid for by bill, lOo. in trover for, 287. . . , », effect of want or failure of consideration between immediate parties, 1/6. between remote parties, 176. failure of consideratiou no answer, when once executed, 177. or when contract still open, 177. or when only piitial, 178. but partial want of consideration may be set up, 1/8. 470 INDEX. BILLS OF EXCHANGE AND PROMISSORY J^0TES—{cr>7it{nued.) re-excbange, drawer and endorser liable for, 178. but not acceptor, or maker of note, unless by agreement, 178. pi'otest, when allowed, 179. expenses of, and noting when recoverable, 179. costs of former action against plaintiff not recoverable, 47. transferor, without endorsement, not liable for, ISO. unless bill is not what it purports to be, 180. given to wife during coverture may be treated by husband as joint or several property, 83. consequences as to set off, 83. mutual credit constituted by taking, accepting, or endorsing a, 88. or by an agreement to accept, 88, 90. but not by an agreement to endorse, 88. nor Ijy holding a bill or note as trustee for another, 91. action for goods sold, to be paid for by bill, not maintainable during time that it would have been current, 116. but special action for not giving may be brought at once, 116. when paid for in advance by bill, which is dishonoured, 129. ■whether it will support a count for money paid by surety, 245. damages in trover for, 294. BOARD OF TRADE, inquiry by, before action against owner of ship in case of loss of life or personal injury, 225 (n). BOND, provisions of 8 & 9 W. III. e. 11. See Debt, 165—169. no more than penalty and costs can be recovered upon, 169. liability of sureties upon replevin bonds, 242, 353. will not support a count for money paid by a surety, 245. to resign living, damages on, 21. set off of joint and several bond, 82. BREACH OF PROMISE OF MARRIAGE, 375—377. wealth of defendant an aggravation, 375. seduction an aggravation, 376. mitigation of damages, bad character, or grossness of manners, 74, 376. evidence in bar of action, 376. BREACHES, assignment of under 8 & 9 W. III. c. 11. See Debt, 165—169. BREAKING OPEN OUTER DOOR, effect of in action against sherifiF, 315. difference between fi-fa. and distress, 317. BROKER, set-off of debt from, in action by principal, 86. liable for negligence in effecting insurance, 412, 414. BUILD, covenant to, 198. CAIRNS', Lord, Act. See Cuancert. CALLS. See Public Company. CAMPBELL'S, Lord, Act. See Executors. CARGO, actions for freight of, 207—211. for not supplying, 211 — 217. for not carrying, 217 — 220. for loss or injury to. See Carriers, 220—225. CARRIERS, 206-229. I. actions by for cost of carriage, 206 — 211. packed parcel.s, 206. where entire ship engaged at a specified rate, 207. INDEX. 471 CARRIERS -Ccowimited). -when payment is to be made by ton, ^U7. ■when part has not been delivered, 208. weight, how calculated, 208. when cargo changes in bulk or weight, 208. _ where freight is fixed with reference to certain articles, 209. evidence in mitigation of damages, 211. time during which vessel was under repair, 211. port and pilotage charges, 211. value of missing goods can not be set off, 211. actions for not supplying a cargo, 211—217. measure of damage, 211. „j on mode of calculating amount ^^hich would have been earned, 211. captain must try to earn freight after breach, 212. but not before breach, 212. _ when freighter is left at liberty as to species of cargo, /i/. not bound to .supply ballast, 213. cargo must be loaded according to custom of port, Z16. stipulation to pay a fixed sum in default of supplying cargo, 214. right of shipowner to retain freight afterwaiMs earned, 2H. when stipulated sum has not become due, 21o. profit made by shipowner with consent of charterer, 21b. dangerous goods, 216. II. actions against carriers, 217 — 231. for not taking a cargo, 217— 220. damages must be the immediate result, ^i/. costs of former action not allowed, 217. increased price of goods in place of those which ought to have been brought, 218. effect of notice upon amount of damage, -\^- more or less tban penalty may^be recovered, 220. for loss or injury to goods, 220— 231. , ,• Ho 990 no diiference that there is some third party liable, 22U. where vessel has been lost, 221. , where cargo has been delivered to a wrong person at its place destination, 221. . , , • ooo 974 where goods have been sold for repairsof ship, 22-, 2/^. which has never reached its destination, 22,5, 2/0. ■ where plaintiff has only a limited interest in goods, 221. when there is no evidence of value, 221. liability of shipowners for loss caused by pilot, IA6. or bv fire or robbery, 224. *, v>i ^ limited as to liability for loss of life or personal injury lo xlo per ton of ship's tonnage, 224. as to damage to goods to £8 per ton, 224. costs beyond this amount may be recovered, 220. when value of goods must be stated, _22o. act does not apply to inland navig.ation, 220. liability of land carriers at common law, U^. effect of notice by them, 220. Carriers' Act, 226— ".^28. felony by a servant, 228. gross negligence, 228. special contract, 228. no by railway or canal company, must be reasonable, 11^. and signed by party to be bound, 229. cattle, limitation as to value of, 229. loss, -what amounts to, 230. value must be declared, 230. fraud in concealing, 231. 472 i^'DEX. CARRIERS— (conthiued.) where contract is to carry a particular sort of goods, ^60. •what is passengers' luggage, 231 (n)- telegraphic messages, negligence in transmitting, 232. CHANCERY, Court of. ^ „ _. damages in suits for injunction or specific performance, 6, 462. provisions of 21 and 22 Yiet. c. 27, 463. payment into court, 463. new trial, 463. discretion of Court to award damages, 464. will not entertain bill for damages only, 464. damages not confined to legal dama^'es, 465. special damage must be shown, 465. need not be specifically prayed for, 465. CHARACTER, evidence of in aggravation or mitigation of damages, 347, 365, 373, 377, 379, 383. CHARTER PARTY. See Carriers. CHARTERS, damages in trover and detinue for, 294, 308. CIRCUITY OF ACTION, pleas in avoidance of, 96, 201. COLLISION, damages for, 67, 310, COMMISSION AGENT, damages against for purchasing inferior goods, 413. COMMON, actions for injury to right of. See Easements, 341—344. COMPANY. See Public Compaky. COMPENSATION, under Lands Clauses Act, 336. COMPROMISE, party indemnified is entitled to, 243. eflect of notice to siirely, 243. CONSIDERATION, absence of in a bill or note, 176. failure of, 177. CONSPIRACY, damages, when too remote, 34. CONTINGENCY, debt payable on, 93. CONTRACT, damages for breach of, must be the primary and natural result, 8. unUss ulterior consequences were contemplated, 9. rule laid down in JJadJey v. Baxendale, 9. application of, 9 — '21. new rule suggested in Fletcher v. Tayleur, 12. motive not a ground of, 21, 22. except in case of breach of promise to marry, 21. to pay money, damages limited to principal and interest, 8. but special damage has been allowed on breach of special con- tract, 20, 21 (n). right to rescind, 125, 155, 157, 158. See Damages, Dkbt. CONTRIBUTION. See Suretyship, 248. CONTRIBUTORY NEGLIGENCE, in cases of injury, 36—40. children may be guilty of, 38. CONTRIBUTORY wrongful act of third party. See Third Party. CORN OR HAY, irregularity in distraining, 323. excessive distress in taking, 324. landlord not bound to take in preference to goods which are con- ditionally exempt. See Illegal Distress, 328. INDEX. 473 COSTS OF ACTIONS, not recoverable, if refused in the original Court, 43, 136, 346. otherwise if not adjudicated upon at all, 44. not allowed when incurred unnecessarily, 45, 414. or where former action not sustainable, 40. unless sanctioned by the defendant, 54. case of warranty and resale, 53. nor when they were caused by the wrongful act of the plain- tiff, 55. case of undeidessee with covenants, 55. may be recovered where there has been an indemnity, 56. but only in case of rightful claims, 239. unless indemnity be against acts of particular persons, 240. not necessary to give surety notice of former action, 57. extra costs not a ground of legal damage, 346. and cannot be recovered, 43, 346. unless where they cannot be taxed, 44, 339. or where there is an indemnity, 45. sed qucere de hoc, 240. cannot be recovered against sheriff, 359. where the former action was against plaintiff, and another, costs severed, 58. in action by surety against co-surety, 249. CO-SURETY. See Suretyship, 248—250. COUNTY COURT, Registrar of. Liability in respect of replevin bonds, 352. COURT, application to amend postea no longer made to, 446. ^ cannot reverse decision of judge as to amendment, 447. may amend where judge has left the bench, 448. of error will amend by amended record in Court below, 450. cannot review such amendment, 450. will postpone judgment to allow time for amendment, 450. change in their power to increase or abridge damages, 452, 453. granting new trial. See New Trial, 454—462. COVENANT, for title and authority to convey, 142. when something has passed, damages are the difference, 142. when nothing has passed, the pui-chase money, 143. or the amount i>aid to perfect tlie title, 144. for quiet enjoyment, not broken till disturbance, 144. damages, value of unexpired term and damages of former action, 145. or amount paid for compromise, 145. whether rise in value may be allowed for, 146. or improvements, 146, 147, 145 (u). where there has been an eviction from part of the laud, 148. deed is conclusive as to amount of purchase money, 148. for further assuiancc, 149. against, or to pay off incumbrances, 149. difference between law in England and America, 150. where there is a contingent incumbrance, 150 (n). nominal damages when actual and contingent loss negatived, 150. to renew, damages depend partly on value of land and partly on title of lessor, 151. to repair, liability of executors upon, 403. tenant may be sued for breach of, during term, 189. 474 INDEX. COVENANT— (coH^muctZ.) damages are measured by the injury to the reversion, 190. or cost of repairs when done by the landlord, 192. though not assented to by tenant, 192. and though plaintiff has since assigned, 192. nominal for disrepair before execution of lease, 192. assignee only liable for breaches during his own time, 193. but burden of proof lies upon him, 193. and boun 1 to remedy actual disrepair, 196. strict proof of disrepair necessary, 193. damages, when action brought at the end of term, are the amount necessary to put premises into repair, 193. not limited to amount of insurance, if burnt down, 193. not bjund to repair premises subsequently erected without express covenant, 193. no answer that plaintiff's interest has ceased, 194. sublessee only liable for injury caused by his own breach of covenant, 194. to keep in repair involves a covenant to put in repair, 194. amount of rejair depends on age and class of premises, 195. how far evidence of disrepair admissible, 195. effect of doctrine upon assignees, 196. expenses of survey generally borne by landlord, 196. when liable for repairs of party-wall, 197. effect of condition precedent that laudloid shall put in repair, 197. damage whtre two counts, 197. when action is by tenant against landlord, 197. costs of another house cannot be recovered, 193. unless there has been delay on defendant's part, 198. injury to one part of premises from non-rej'air of others, 198. damages may be referred to the master, 424. to build, damages measured by real injury sustained, 198. to mine, 199. to pay renewal fine, must be commensurate with defendant's interest, 200. to insure, premiums may be recovered, 200. where no loss has occurred, 200, 201. where a loss has occurred, damages measured by it, 202 where policy is assigned to the insurers to secure loan, the damage is the loss of the security, 203. to pay rates, 204. to deliver up possession, 205. not to assign, 205. to pay rent. See Kent. in case of alternate covenants, nominal damages only on one, if money has been paid on the other, 204. assessing damages upon penalty for breach of covenants, under 8 and 9 W. HI. c. 11, 16.5. to what cases statute extends, 167. where it does not, 1C8. Crown not bound by it, 169. to indemnify, or do some act, damages for breach of, 238. general covenant only extends to lawful acts, 239. otherwise when an individual is specified, 240. when executor may sue for breach of, 389. CROPS, distress of growing. See Illegal Distress, 323, 328. CUSTO.MS ACTS, damages for seizure of goods under, 297. bona-fide detention of goods under, not a trespass, 327. INDEX. 475 DAMAGES arc recoverable in all personal and mixed actions, 1. and for suing after a prohibition, 3. and in debt for a penalty given by statute to tbe party grieved, if the amount is certain, 2. but not where amount uncertain, or in action l)y iuforraer, 2. not recoverable in real actions, 1. nor upon an indictment or information, 2. but an informer may have a third part of the fine, 2. nominal, meaning of, 4 plaintiff entitled to, though the injury cause no loss, 4. unless damage is of the essence of the action, 5. for detention of a debt, 161. cannot be sued for when debt has been paid before action, 162. otherwise when payment is made after action brought, 162, 164. unless accepted in bar of damages, 162. on a writ of inquiry, 425. not necessarily nominal, though no proof of actual loss, 7, 367, 427. not a complete compensation, 7. for non-payment of money limited to principal and interest, 8. for breach of contract, must be tbe primary and natural result, 8. unless ulterior consequences were contemplated by both parties, 9. ought a contract to this effect to be proved ? 10. rule laid down in Hadley v. Baxendale, 9. new rule suggested in Fletcher v. Tayleur, 11. cases in which the rule in Hadley v. Baxendale has been applied, 13—20 tbat rule will not decide every case, 17. mere communication of consequences of a breach will not enlarge responsibility of person to whom it is made, 18. motive not a ground of, 21, 22. in actions of tort governed by looser principles, 23. motive a ground of, 24. unless in actions against several, 24. or against a principal for the act of bis agent, 366. are a penalty and not merely a compensation, 25. ai"e too remote, 26 — 58. when claimed for loss of profits, 27—32, 124, 415. unless tbe profit was itself the thing contracted for, 27, 415. Scotch law difiereut in this respect, 31. when the injury is not the natural result of the act, 32. when caused by the act of the plaiutifl" himself, 35—40. effect of his negligence in cases of injury, 36—40, 136. premature expenses, incurred while contract incomplete, 40. when the wrongful act of a third party, which could not have been expected, 40, 371. , io otherwise when such was the natural result of the wrong done, 42. cost of former actions, 43— 58. . . , ^ . i., ■,.-,(• not recoverable, if refused or limited, in the original Court, 43, 136, 346. otherwise if not adjudicated upon at all, 44. full costs allowed where they cannot be taxed, 44, 339. and where there is an indemnity, 45. sed qucere de hoc, 240. not allowed when incurred unnecessarily, 45, 414. or where former action not sustainable, 46. unless sanctioned by the defendant, 54. case of warranty and resale, 63. •«• r^ nor when they were caused by the wrongful act of the plaintiff, oo. case of underltssee with covenants, 55. 476 INDEX, DAMAGES— {continued.) may be recovered where there has been an indemnity, 56. but only in case of lawful claims, 239. unless indemnity be against the acts of a particular person, 240. not necessary to give surety notice of former action, 57. where former action against plaintiff and another, costs severed, f8. cannot be given for anythiug before cause of action, 58. subsequent to action may be allowed for, when it is the natural result, and not itself a new cause of action, 59 — 62. interest given up to judgment signed, 61. when evidence of specific subsequent injury allowed, 61. a legal (not moral) liability to pay money a ground of, 65. for instance, a judgment recovered, 2S8. not recoverable, when not the necessary result of defendant's act, 62. or a new cause of action, as a continuing nuisance, 63. if given in such a case, judgment arrested, 434. evidence in mitigation of, not admissible if it coulJ have been pleaded, 65, 425. nor for all the purposes of a cross action, 66. nor when mei-ely res inter alios acta, 67, 374, 386. right of action against a third party, 67. nor when it would contradict any rule of evidence, 69. inferiority a ground of reduction in actions for price of goods, 70. or work and labour, or hire of services, 71. but not in actions for freight, or an attorney's bill, 69. unless no benefit received, 69. measure of reduction in such cases, 71. work done, or materials supplied by employer, 71. injury to, or loss of employer's goods, 71. extenuating circumstances, 73. See different titles of actions. absence of malice, 74. set-off. See Set-off, Mutual Credit, Equitable Set-off, 75—96. cannot exceed amount laid, 97. if more given, judgment reversed, 440. plaintiff may enter a remittitur as to excess, 440. • Court will not amend declaration to "meet verdict, 440. will grant a new trial with leave to amend, 440. double and treble in certain cases, 440. ascertained by multiplying amount of verdict, 441. mode of assessing. See Judgment, Several Counts, Several Defekd- ANTS, Writ of Inquiry, 423 — 4 44. power of Court to increase or abridge, 453, 454. too small or excessive. See New Trial, 454—462. liquidated, form the ascertained amount of the verdict, 97, 99. but must be sued for as such, i'8. and could not be fixed in evasion of usury laws, 99. judge must decide whether a penalty or, 99. will be construed as a penalty, when so stated to be, without con- trolling words, loo. or when a larger sum is to be due in default of a smaller, 100. unless stipulated for in express terms, 102 (n). or where there are several things to be done, the breach of which can be measured in money, 101. otherwise when the damages would be uncertain, 103. or where the event is single and uncertain, 103. mere use of words "liquidated damages" not decisive, 104. Court incline to consider sura fixed a penalty, 104. cannot be given beyond penalty, when sued for as such, 99. more or less may be given, when action is on contract, 99. assessing under 8 and 9 \V. III. in action fur penalty. See Debt, 1(55. INDEX. 477 DANGEROUS goo Is, damage caused to carrier hy, 216. DEBT, damages for detention, in general nominal, IGl. may be substantial, as on a mortgage deed, 161. plea bad, unless it professes to answer, 161. action for nominal cannot be commenced after payment, 161. may be cai'ried on, if payment after action, 162, 16i. none when plea of tender found for defendant, 165. nor where there has been a release of the action, 165. on a penal statute, 2. for a penalty as liijuidated damages. See Pe.valtv, Liquidated DAMAOEd. 99, 170. on a bond, assigning breaches under 8 & 9 W. III. c. 11, 165. statute compulsory, 166. same judgment as before, 166. different modes of proceeding under statute, 167. to what cases it extends, 167. when it does not apply, 168. not binding upon the Crown, 169. damages limited to amount of penalty and costs, 169. satisfaction entered on payment, 169. •when penalty not in a bond, plaintiff need not sue for it, 170. and may recover more or less, 170. mode of calculating value of a sum in foreign currency, 170. DECEIT. See Fraudulent Misrepresentation. DECK GOODS, contribute to a general average, 270. not contributed for unless in case of usage, 273. DEFAMATION, evidence of malice, 363—366. other words or writing may be used as, 363. persisting in the charge, 365. giving circulation to the libel, 366. general evidence of good character only allowed to rebut contrary evidence, 365. evidence of general competency, 365. malice of one not evidence in action against another, 366. damages in joint actions, by partners or husband and wife, 36G. circulation of libel, an aggravation of, 366. specific proof of, unnecessary, 367. when prospective may be allowed, 367. specific injury after action, when admissible in proof of, 368. when general evidence of may be given, 369, special damage, when necessary, 370. must be laid with certainty, 370. must be the natural result of defendant's act, 370. and not of the rei)etition of the slander by others, 42, 371. when act of third party a ground of, 371. mitigation of damages ; defendant did not originate the libel, 372. had cause to believe it, 373. previous provocation, 373. general bad character, 373 justification, 374. former recovery against another person, no ground for, 371. apology in newspaper, 374. DEFAULT. See Judgment BY, 425—428, 431. DEMA.ND OF INTEREST, what is a sufficient, 112. 478 INDEX. DEMURRER, assessing damages after judgment on, 428. to part of the declaration, and default or plea as to rest, 4J». contingent assessment of damages on, 429. when plaintiff may take judgment on, and abandon the issues, 429. DEPOSIT, on contract to purchase land, interest on, 109. forfeiture of, on non-completion, 103 (n). DETENTION OF CHATTEL, damages for, 304. DETINUE, judgment in, 307. statutory power to order delivery of chattel, 6m. jury ought to find value separately, 308. _ and new writ of inquiry cannot be awarded, if they omit to do so, 44c!. postea may sometimes be amended, 446. damages when property cannot be returned, 308. in actions for charters or scrip, 308. plea of acceptance of goods since action, 308. effect of judgment in altering property, 308. _ •, r i . 07 against garnishee, greater damages than those claimed against defendant, 97. DEVASTAVIT, eEfect of upon the liability of an executor, 403. difference between doctrines of law and equity, as to, 404. DEVIATION from contract for work, 152. DILAPIDATIONS, liability of executor of deceased incumbent for, 397. DISMISSAL from service. See Hiring, 155—160. DISTRESS. See Illegal Distress, 321—329. DIVIDEND must be apportioned to whole debt, where part is guaranteed, 2 35. DOWER, no damages on writ of right of, 279. are recoverable in dower imde nihil habet, 279. demand is necessary, 280. mode of assessing their amount, 280. time to which they are assessed, 281. effect of death of heir or widow, 281. only six years' arrears or damages recoverable, 281. DRAWER, liability of. See Bills. DRIVING distress into another county, action for, 325. EASEMENTS, nominal damages where right has been infringed, though no loss, 341. unless right is a matter pull ici juris, 343. particular but not special damage necessary, 343. actions by reversioners must show injury, did. against the lord for putting cattle upon common, 343. continued obstruction may be sued for continually, 343. EJECTMENT, changes in its character, 278. judgment in, 278. when mesne profits may be recovered, 279. See Mesnk Profits, 337 — 341. costs of, may be recovered in action for mesne profits, 339. ENDORSER, liability of. See Bills. ENTRY, when necessary to maintain trespass, 337. when made, relates back to origin of title, 337. unless where X'arty in possession was not a trespasser till entry, 338. EQUITABLE set-off, See Set-off, 93—96. doctrine of devastavit, 404. EQUITY, damages in a Court of. See Chancery. INDEX. 479 ESCAPE, action of debt, for, abolished, 357. damages in action on the case for, 357. EVICTION. See Covenants FOR Title. 142—151. by landlord bars an action for rent, 148, 185. by title paramount causes an apportionment, 148, 185. EXCESSIVE DAMAGES. See New Trial, 457—461. DISTRESS. See Illeqal Distress, 321. EXECUTION against goods, whether it will support a count for money paid by surety, 246. EXECUTORS, actions by, 383—394. must be brought in respect of some wrong affecting the personal estate, 388. not necessary to prove actual damage, 389. unless in actions of real covenants, 389. when they cannot sue, 390 measure of damages, 391. right to sue for trespass to goods, 391. or to lands, 391. or for injury causing death, 392. no damages for mental suffering, 392. nor for funeral expenses, mourning, 393. but for loss of expectations, 393. insurance on deceased's life cannot be taken into account, 393 (n). action only when deceased might have sued, 394. therefore barred by accord and satisfaction with deceased in his lifetime, 394. extends to death on high seas, 225 (n). but no action can be brought till Board of Trade has held an inquiry or refused to do so, 225 (n). set-off In actions by, 83. actions against, 394 — 406. when sued as such, are liable to extent of assets, 394. contracts of the testator in general survive against, 394. unless in matters of personal skill, 395. revocation of authority by death, 395. trespass may be maintained against, 396. liability of for dilapidations, 397. what contracts made by, bind him in bis representative character, 393. when liable personally, 398. trading ; submission to arbitration, 399. funeral expenses, 399. use and occupation, 400. rent due since testatoi-'s death, 401. where term has been assigned, 402. mode of estimating profits from land, 402. covenant to repair, 403. devastavit at law and in equity, 403, 404. want of assets should be pleaded, 405. effect of judgment against de bonis testatoris, 405. de bonis propr lis, 406. set-off in actions against, 84. payments made by executors, de son tort, go in mitigation of damages, 74. sued in replevin, may recover damages, "19. EXEMPLARY DAMAGES, may sometimes be given, 25, 457—460. See Motive. actions for mesne profits, 341. 480 INDEX. EXTORTION, treble damages in action against sheriff for, 359. form of declaration, 359. EXTRAS, how sued for, 152. original contract must be put in stamped, 152. FACTOR, set-off in actions by or against, 85. FALSE IMPRISONMENT, probable cause a ground of mitigation, ^75, 349, but if amounting to a justification, must be pleaded, 350. remand by the magistrate not a ground of damages, 350. nor circumstances of subsequent prosecution, 350. damages in actions by and against several, 350, against justices of the peace, 351. jury will look to all the circumstances, 336. FENCES, consequential damages from non-repair, 34. FINE. See Renewal Fine. FIRE INSURANCE is a contract of indemnity, 251. sum insured for does not opeiate as the ascertained value, 252. property is to be estimated at its intrinsic value, 253. at -what time the value is to be calculated, 254, 255, election to reinstate 251 (n). bailees may insure for full value, 255. are trustees for residue above their own interest, 255. insurable interest of tenants from year to year, 255 (n). mortgagees, 25i) (n), profits must be expressly insured, 256. expenses of saving property, 256. FIXTURES, damages in trover for, 292. in trespass for, 308. on policy of insurance for moveable, 252. FOREIGN CURRENCY, mode of calculating value of, 170. FOREIGN JUDGMENT, interest upon, 110. mode of calculating value of, 170, FORMER RECOVERY. See Judgment Recovered. FRAUDULENT MISREPRESENTATION, damages may be recovered which result naturally from representation being acted on, 134, 136. case of damages too remote, 34 ^n). FREIGHT, loss or injury to goods not a ground for mitigation of damages in actions for, 09, 79, 95, 95 (n). actions for payment of, 207, 211. for not supplying, 211 — 216. for not taking, 217—220. See Caurieks, Marine Insurance, General Average, FUNERAL EXPENSES, liability of executors for, 399. FUTURE DAMAGE. See Prospective Damage. GOODS, sold and delivered,' no interest recoverable, 110. unless payment to be made by hill, 110. when to be paid for by bill which is not given, 116, inferiority may be given in evidence, 71. measure of reduction of price, 71. INDEX. 481 QOODS—icooitinued.) bargained and sold, when no actual delivery, 116. action for not accepting, 116. damages, difference between contract and market price, 116. in some cases plaintiff may sue before expiration of time fixed for performance of contract, 117. vendor cannot re-sell goods, if buyer fail to carry them away, 118. absolute contract to pay for goods, though not accepted, 120. action for refusal to deliver, same rule of damages, 120. where vendor has renounced contract before day fixed, 121. where vendee at vendor's request forbears buying other goods, 121. ■when no time fixed for completion of contract, 122. special damage may be recovered, 122. where payment made in advance, 125 — 128. by bills which are dishonoured, 129. order for specific delivery under Mercantile Law Amendment Act, 1856, 129. may be the subject of set-off, 77, 78. See Warranty, 129—135. sold by master for necessities of ship, 222, 274. mode of valuing, 222. lost by carrier, or injured by carrier. See Carrier, 220 — 230. mode of valuing. See Value. whether execution upon, will support a count for money paid by surety, 246. GUARANTY. See Suretyship. trover for, 295. EADLEY V. BAXENDALE, rule laid down in, 9. cases in which that rule has been applied, 13 — 20. will not decide every case, 17. case where parties contemplated different use for the article which was to be supplied, 16. mere communicaticn of the results of a breach will not enlarge the respon- sibility of the person to whom it is made, 18. the rule applied in an action for not paying money under a special contract to do so, 20, 21 (n). HIRING, contracts of, 155— ICO. nothing recoverable upon a special contract which has not been per- formed, 155. nor upon a quantum meruit, unless defendant prevented per- formance, 155. nor where dismissal was for misconduct, 155, 156. when such dismissal a good defence, 156 (n). contract to pay for service is not a contract to employ, 156. unless word "agreed" is used, 157. then does not amount to a promise to pay after dis- missal, 157. . . _ agreement to pay a yearly salary is a yearly hiring, lor. when action for dismissal may be brought, 157. damages in it; include past service, 157, 158. contract cannot be treated as subsisting for any purpose but that ol right of' action passes to trustee in bankruptcy, 159, 406. plaintiff, Improperly dismissed, may sue at once on a quanfuvi meruit, lo9. inferiority of services may be given in evidence, 159. doctrine of constructive service for whole period overruled, 159. month's notice in case of menial servants, 159. who are such, 159. I I 482 INDEX. HIRING— (con/mwecZ. ) damages in action for uot giving notice do not include past service, 160. Balary now withiu statute of apportionment, 160. See Work akd Labour, 152 — 155. HOLDING OVER after giving notice to. quit, 187. receiving notice to quit, 187. See Rent. HUSBAND AND WIFE, set-off in actions by and against, 82. no special damage on joint count for libel in action by, 366. separate count for injui-y to husband may be added, 367. ILLEGAL DISTRESS, 321—329. irregularity in distress for rent; action must be for actual damage, 321. excessive distress, 321. mode of calculating value, 322. no damages for sale unless alleged, 322. when tresijass will lie for, 322. distraining for more rent than is due, 322. where nothing is due, 326. irregularity in distraining corn, hay, or growing crops, 323. effect of tender, 326. selling without appraisement, 324. not removing goods ; not giving notice ; not selling at best price, 325. driving cattle out of county, 325. when distress is void ah initio, 326. tender before or after distress ; after impounding, 326, 327. mere non-feasance not sufficient, 327. distress may be void as to part only, 327. distraining privileged articles, 328. where only other distress consists of growing crops, 328. IMPROVEMENTS a ground of damage in action on a warranty, 133. on covenant for title, 145 (n), 147. whether value of can be recovered in trover, 289 — 293. not allowed for in action for mesne profits, 340. INCUMBRANCES. See Covenant against, 149. INDEMNITY, recovery of costs under, 56, 239. given by plaintiff to defendant against the demand sued on may bar the action or reduce the damages, 73. against calls on shares, vendor's right to, 119 (n). See SuRETrsnip, 233 — 276. INDICTMENT, no damages recoverable on, 2. when given by statute must be sued for, 2. informer may upon conviction obtain a third of fine, 2. INFERIORITY a ground for mitigation of damages, 71. measure of reduction, 71. not in actions for freight, or on an attorney's bill, 69. INJUNCTION, damages in addition to or substitution for, 3, 463. though case for injunction fails, 464. for infringement of patent, 464. though patent have expired pending the suit, 464. unless bill tiled too late for any equitable relief, 464. See Chancery. INSURANCE of ship not a gi-ound for reducing damages in action for collision, 67, 314. nor of deceased's life in action by executors for injury causing death, 393 (n). See Fire, Life, Marine Insurance. INDEX. 483 INSURE, covenant to ; premiums may be recovered, 200. where no loss has occurred, 200, 201. where a loss has occurred, 202. where policy is assigned to the insurer to secure loan the damage is the loss of the security, 203. covenant not to cause forfeiture of policy, 204. INTEREST. I., at common law, when given, 104. always on bills and notes, 105, 171. may be withheld unless expressly reserved, 171. not given while note in hands of alien enemy, 171. where expressly reserved, runs from date, 171. though no action could have been originally maintained, 171. if note given as a legacy, would run from maker's death, 172. where not reserved, runs from maturity, 172. or from demand, when instrument payable on demand, 172. liability of drawer, endorser, or guarantor for, 172. when note payable by instalments, 173. does not run after a tender, 110, 173. payment into Court must include, 173. cannot be recovered from maturity of bill without its production, 1/3. calculated at current rate of place whose laws govern payment, 173. lex loci solutionis is the lex loci contractus, 173. hence different liabilities of acceptor, drawer, and endorser, 174. ^ where expressly reserved, governed by lex loci contractus, 111, 17o. in trover for a bill, 286, 294. contract of indemnity does not imply interest on money paid, 10 a. course of dealing raises a contract to pay even compound, 106. but not upon the last balance, 106. agreement to pay by note raises a contract for, 106. fact of such agreement is a question for the jury, 107. bond with a penalty carries, 107. but not when parties only bound in the amount due, 103. given on an award payable on a certain day, 108. not recoverable in action for recovery of deposit, 109. except as damages, 109. nor even then in action against the auctioneer, 109. nor in action for money secured on mortgage, 109. or for money payable on a fixed day, 110. or upon a contract to indemnifj', 109. except as damages, 109. nor for money lent, paid, had and received, or on account stated, 109, 110. nor for goods sold, work and labour, or policy of insurance, 1 10 nor on foreign judgment, where plaintiff has been guilty of laches, 110. does not run after a tender, 110. calculated up to time of payment into Court, 110. or judgment signed, 111. recovered at law always 51. per cent., 111. XL, by statute. 111. in trespass, 111, 112. trover, 111, 112. on policies of insurance, 110, 269. what sums considered certain, 112. what is a sufficient demand, 112. in case of calls, 113. notice of action, when necessary, must demand interest, 1 1 2. jury cannot be controlled in their discretion, 113. can only be given by jury, 113. I I 2 484 INDEX. INTEREST. II.— (continued.) on judgments, 113. time from which it is calculated, 113. on writ of error, 114. may be given by House of Lords, 114. in action for breach of covenant for title, 143, 144. on purchase money of laud under condition of sale, 1£5 (n). beyond penalty where express agreement, 170. INTERPLEADER, creditor only responsible in trespass up to time of order, 309. therefore not responsible fur the sale under the order, 31(\ JOINT ACTIONS, principle of damages in, 350, 435. cannot be assessed severally, 434. effect of default by one defendant. See Judgment by De- fault, 437. JOINT AND SEVERAL bond, or note, when it may be set off, 82. debts, when they may be set off against each other, 81, 95. when they cannot, 81. JUDGE must decide whether a fixed sum is a penalty or liquidated damages, 99. must direct as to the place by whose laws interest is to be regulated, 173. as to the measure of damages, 445. effect of a wrong ruling by, as to right to begin, 445. when amendment of postea may be made by, 446. his decision is final, 447. application may be made to him in full Court, 447. Court may amend if he has left bench, 448. cannot amend from recollection, 448. See Amendment, Court. in case of excessive verdict will suggest to counsel to agree on a sum, 461. JUDGMENT BY CONFESSION, express or implied, 424. when execution may issue for the amount at once, 424. or on default in payment of an instalment, 424. when necessary to have a reference to the Master, 424. or a writ of inquiry. See Writ of Inquiry, 425. JUDGMENT ON DEMURRER, assessing damages on, 428, 439. JUDGMENT BY DEFAULT, admits the cause of action alleged, 425. but not the amount unless put in issue, 426. where the writ has been specially endorsed, 427. where it has not been, 427. is final in case of a liquidated demand for money, 427. when a reference to the Master may be had, 424. when necessary to sue out writ of inquiry, 425. evidence upon writ of inquiry, 425, 426. where there are several counts. See Several Counts, 427. as to part only, and plea or demurrer as to rest, 428. on one of several counts, on which plaintiff may recover all he claims, 431. JUDGMENT ARRESTED formerly, but not now, in case of general verdict, where one count was bad, 431, (n). in case of misjoinder of good counts, 434. unless verdict for defendant, or nolle prosequi on counts im- properly joined, 434. where damages are given for matter subsequent to action brought, or previous to right of action, 434. INDEX. 485 JUDGMENT REVERSED where entire damages against all, and some only euiltv of part, 435, 436. ^ where damages are assessed severally instead of jointly, 437, where greater damages are given than are laid, 440. JUDGMENT RECOVERED is a damnification to its full amount, 23S. a bar to a second action in trover, or trespass, 304, 3u7. or in detinue, 308. or for negligence, 360. or slander, 367, or injury to a right, 60. not a bar to an action for a nuisance, or continuing trespass to land. 59, 334. or obstruction to an easement, 343. in action for imprisonment, no bar to action for malicious prosecu- tion, 350. against one adulterer no bar to action against another, 386, against insurers, no bar to action for a collision, 67. against one slanderer, no bar to action against another, 374. JUDGMENT may be the subject of set-off though writ of error pending, 79. and though it prejudices the attorney's lien 80, (n). but not a verdict before judgment, 80. nor when satisfied by execution, ^0. will not be stayed to let in a judgment on a cross action, 80. when considered to be signed, 111, 114. interest upon, 113. in trover, effect of in changing property, 304. and in detinue, 308. form of, against an executor, 405. its effect, 405. may be maintained as to part, and reversed as to damages, 462. set off of costs and damages in equity, 80 (n). See Foreign Judgment. JURISDICTION, seizing goods out of, 317. arresting out of, 349. JURY may withhold interest, 113, 171. amount is at their discretion, 113, 173. summoned by sheriff to ascertain property, 318. effect of their verdict, 318. must assess value of goods in detinue separately, 308, 443. fresh writ cannot issue, unless judgment lie by default, 413. must assess value of rent and distress in replevin, 320. postea may be amended, in accordance with intention of, 448. intention how ascertained, 448. judge must direct as to measure of damages, 445. and as to the place whose laws govern the rate of in- terest, 173. mistake or misconduct of, a ground for a new trial, 440, 455, 456. JUSTICE OF THE PEACE, damages in action against, 351. JUSTIFICATION ; an unsuccessful plea is an aggravation of dam.ages, 340. evidence which amounts to, cannot be given in mitigation of damages, 350, 374. no evidence that plaintiff had submitted to same imputations before, 374. KEEP of an animal not a ground of mitigation of damages in trover, 300. may be recovered in action on a warranty, 132. 486 rsTiEx. LAND, sales of, 135—142. action for breach of contract to convey, 135. vendee may recover deposit with interest as damages, 135. and expenses of investigating title, 135. but not expenses prematuiely incurred, 136. unless in case of misrepresentation, 1 36. nor costs of suit for specific performance, 136. nor profits from a re-sale, &c., 40, 136. nor value of improvements made, 136. nor loss incurred by selling out stock, 137. nor damages for loss of bargain, 137. unless vendor has had no shadow of title, 137. but not if vendor had an equitable title, 137. or reasonable ground for believing that he could sell, 137 special damage, 138. when damages are allowed in suit for specific performance, 140, 462, 465. where contract void ab initio, deposit may be recovered, 135. and a moiety of auction duty, 135. but neither interest nor expenses of investigating title, 135. contract may be rescinded for defect of title, 135, 139. and purchaser need not accept doubtful title, even with an in- demnity, 135. but if let into possession, cannot rescind, 140. nor can he retain part, and abandon part of same purchase, 136. at an auction, each lot a distinct sale, 136. damages liquidated by consent, 139. damages for not accepting conveyance are the injury plaintiff has sus- tained, 140. usual conditions of sale, 141. forfeiture of deposit, 141. interest on purchase-money, 135 (n). See Covenants for Title, 142 — 151. Kent, 181—189. Covenants to repair, 189 — 198. TO BUILD and mine, 198—200. Trespass, Easements, Mesne Profits, 330—344. LANDLORD AND TENANT. See Rent, Covenant, Sdretyship. LIABILITY to pay money is a ground of damage, 65. unless it is only a moral, not legal, obligation, 65, LIBEL. See Defamation. LIFE INSURANCE : full amount of interest at time of insurance may be recovered, 250. measure of damages on an insurance against accidents, 251. covenant not to cause forfeiture of policy, 204. LIGHTS, actions for injury to. See Easements, 341—344. LIMIT of damages, the amount claimed in declaration, 97. See Damages. LIQUIDATED DAMAGES. See Damages, Penalty. LIVING, damages on bond to resign, 21, LOSS of freight, goods, or ship. ' See Carriers, General Average, Marine Insurance. MALICE. See Motive. MALICIOUS ARREST. See False Imprisonment, 349—351. INDEX. 487 MALICIOUS PROSECUTION ; damage must be shown, 345. liability to pay extra costs is not damage, 346. nor can they be recovered, if paid, 346. malice and want of probable cause, 24, 347. evidence of bad character of plaintiff, 347—349. not barred by recovery in action for false imprisonment, 350. MANNER of committing an act may aggravate damages, 25, 311, 458. See Motive, MARIfTE INSURANCE, 256—269. when loss is total without abandonment, 257. constructive total loss in case of the ship, 258, in case of cargo or freight, 258. notice of abandonment must be given, 260. otherwise only average loss, 260. election to treat as a partial loss precludes abandonment, 260. unnecessary in case of freight, 260. where the insurance is free of particular average, 261. total loss may become partial by matter subsequent, 263. even where notice of abandonment has been given and accepted, 263, 264. value may be agreed on beforehand, as liquidated damages, 264. mode of valuing goods or freight, in an open policy, when loss is total, 265. insurer is entitled to benefit of salvage, 265, mode of valuing partial loss in case of ship, 266. deduction on account of new for old materials, 266. in case of goods or freight, 267. charges incurred for preservation of vessel, cargo, or freight, 268. for provisions and wages in case of embargo, 268. liability of insurers in respect of a general average loss, 268. how far bound by adjustment in a foreign port, 269. interest on policy, 110, 269. See General Average, 269 — 277. MARRIAGE. See Breach of Promise. MASTER; cases in which a reference will be allowed in place of writ of inquiry, 424. MESNE PROFITS, against whom action will lie, 337. damages when limited to time of actual possession, 337. recoverable for entire period over which title extends, 337. unless occupant is not a trespasser till entry, 338. effect of judgment in ejectment on right to, 338. not confined to mere rent of premises, 338. nominal, unless duration of defendant's possession is proved, 338. costs of previous ejectment, 339. now generally recoverable in ejectment, 339. mitigation of damages ; payments, improvements, 340. a remittitur damna in ejectment, no bar to action for, 341. when recoverable in ejectment, 341, effect of such recovery, 341. actions by and against executors, 341. MINE, actions on covenant to, 199. for rent of, 181. for taking minerals from, 291, 333, for injury to, 334. MISJOINDER OF COUNTS. See Several Counts. MITIGATION OF DAMAGES, evidence not admissible if it could have been jilrjidcd, 65, 298, 340, 350, 374, 425, nor for all the purposes of a cross action, 66, 314. 488 INDEX. MITIGATION OF DAMAGES— (con^mMerf.) nor when merely res inter alios acta, 67. See Judgment Recovered. right of action against a third party, 67, 220. inferiority of goods or work, 70, not admissible in actions for freight, or on an attorney's Llll, 69. unless no benefit has been obtained, 69. measure of reduction in such cases, 71. ■work done or materials supplied by the employer, 71. injury to or loss of employer's goods, 71. imperfect title to goods or lands, 298, 330. re-delivery of goods, or repayment, 301, 312, 313. libellous character of property taken, 312. absence of malice, and bona fides, 315, 347, 349, 372. See Seduction, Adultery, Breach of Promise. MIXED ACTIONS, damages are recoverable in, 1. See Dower, Ejectment, Quare Impedit, 273 — 284. MONEY, contract to pay, damages limited to principal and interest, 8. but special damage has been allowed on special contract, 20, 21. (n). MONEY PAID BY SDRETY, what amounts to. See Surkttsdip, 245—247. MORAL obligation to pay money, if not a legal one, is not a ground of damage, 65. MORTGAGE DEED, interest on, 109. when it will support a count for money paid by surety, 247. MOTIVE not a ground of damage in case of contracts, 21. otherwise in case of torts, 24. See Titles of Actions, but motive of one no ground of damage in action against him and another, 24, 311, 435. nor in action against principal for act of bis agent, 24 (n), 366. ground of mitigation of damage, 74. See Titles of Actions, evidence of character in proof of probable cause, 347, 373. MUTUAL CREDIT IN BANKRUPTCY. See Set-off, 87—92. NEGLIGENCE, when the plaintiff may recover, though himself in fault, 36. when himself a trespasser, 37. in Admiralty Courts, damages divided when both parties are to blame, 310. liability of shipowners for loss caused by, limited, 224, 310. of carriers by land limited in case of certain articles, 226, 231. effect of gross negligence at common law, 226. since the Carriers' Act, 228. See Carriers. damages for personal injury caused by, 351. where the action is by the executors. See Executors, 392. See Sheriff, 352 — 359. Attorney, 359 — 361. goes in mitigation of damages in action of seduction, 380. or of adultery, 884. NEWSPAPER, apology for libel in, 374. NEW TRIAL has taken the place of an attaint, 455, 457. and of the old jurisdiction to increase or abridge damages, 453. in what cases allowed, 440, 454. INDEX. 489 NEW TRJkL-(con(inued.} Dot allowed, where damages are ualiquidated, on ground of smallness, 455. unless in case of misdirection or miscalculation, 455. or misconduct of the jury, 45ii. allowed, for smallness, where there is a measure of damages, 456. not where plaintiif has allowed damages to be assessed contin- gently, 457. when allowed on the ground of damages being excessive, 457. examples of cases in which refused, 457 — 460. in which granted, 461. not granted when verdict is under 20L, 462. unless perverse, or on a matter of permanent right, 462. or in cases tried before an inferior Court, 462. NOLLE PROSEQUI in case of judgment by default, on counts which need a writ of inquiry, 427. unless a payment has been made generally, 428. upon count demurred to, in case of default upon another, 428. upon issue of fact, where plaintitf has judgment on demurrer, 429. upon counts improperly joined, 434. against some where damages have been assessed severally, 437. against defendants who plead matter of personal discharge, 438. against those who plead in tort, where some make default, 438. NOMINAL DAMAGES must be given wherever there is a right of action, though no loss is proved, 4. but not where damage is of the essence of the action, 5, 343, 355, 360, 362, 416, 417. for detention of debt, 161. cannot be sued for when defendant has been paid before action, 161. otherwise when payment is made after action brought, 162, 164. unless accepted in bar of damages, 162. by consent, on re-delivery of chattels, 302, on a writ of inquiry, 425. NOTE, undertaking to pay by, carries interest, 106. breach of agreement to give, 116. whether it will support count for money paid by surety, 245. set-off of joint and several note, 82. See Bills. NOTICE, menial servants entitled to one month's, 159. who are menials, 159. damages for dismissing without, 160. want of, does not make distress void, 325. NOTING, when recoverable, 179. PACKED PARCELS, 206. PARTNERS, set-off between, 82. interest on money drawn out in excess of share, 110.- PARTY-WALL, liability of tenant for repairs of, 197. PATENT, infringement of, 27 (n.), 464. measure of damages, the royalty which ought to have been paid, 27 (nV PAYMENT of debt before action, 161. after action, 162, 164. by surety, what amounts to, 245. of produce of goods wrongfully taken, 312. 490 INDEX. PAYMENT— (co«ntJaY, kvans, Asd co., printers, whitkfriaus. A CATALOGUE OK NEW AND IMPORTANT LAW WOEKS PUBLISHED AND SOLD BY STEVENS & HATNES, BELL YARD, TEMPLE BAR, LONDON. BOOKS BOUND IN THE BEST BINDINGS. Works in all Classes of Literature supplied to Order. FOREIGN BOOKS IMPORTED. LIBRARIES VALUED FOR PROBATE, PARTNERSHIP, AND OTHER PURPOSES. LIBRARIES OR SMALL COLLECTIONS OF BOOKS PURCHASED. A large Stock of Reports of the various Courts of England, Ireland, and Scotland, always on hand. Catalogues and Estimates Furnislied, and Orders Promptly Executed. Note. — To avoid confusing our firm ivith any other of a similar name, zve beg to notify that we have no connexion %vhatevcr with any other house of business, and rcspcctjully request that special care be taken to direct all communications intended for us to t/ie above address. lOOO. 1. 11. 76. STEVENS & HAYNES, BELL YARD, TEMPLE BAE. INDEX OF SUBJECTS. PAGE ADMIRALTY LAW— Jones '4 Kay ^5 AGRICULTURAL HOLDINGS— Brown ^3 AMERICAN REPORTS ... 38 AMERICAN TREATISES. . . 38 APPELLATE JURISDICTION— Turner 4^ ARTICLED CLERKS— See STUDENTS. ASSAULTS— See MAGISTERIAL LAW. BALLOT ACT— Bushby 33 BANKRUPTCY— Roche and Hazlitt 9 BIBLIOGRAPHY 40 EILLS OF LADING— Kay IS BILLS OF SALE— Roche and Hazlitt 9 BIRTHS AND DEATHS REGIS- TRATION— Flaxman 43 CANADA— Code of 38 CAPE OF GOOD HOPE- 6-f^ DUTCH LAW. CAPITAL PUNISHMENT. Copinger ... ... 42 CARRIERS— See RAILWAY LAW. „ SHIPMASTERS. CHANCERY— See EQUITY. CHARITABLE TRUSTS— Cooke .10 CHURCH AND CLERGY- Brice 8 CIVIL LAW— See ROMAN LAW. CODES— Canada 38 COLLISIONS AT SEA— Kay 15 COLONIAL LAW— Forsyth . 12 COMMENTARIES — Kent . . . . COMMON LAW— Indermaur 21 COMPANIES LAW— Brice 7 Buckley 29 Reilly's Reports 29 See MAGISTERIAL LAW. COMPENSATION— Browne 6 Lloyd 13 COMPULSORY PURCHASE— Browne 6 CONFLICT OF LAWS — Woolsey 38 CONSTABLES— i-f^ POLICE GUIDE. CONSTITUTIONAL LAW AND HISTORY— Forsyth 12 Taswell-Langmead .... 24 Thomas 27 CONTRACTS— Kay 15 Langdell 38 CONVEYANCING, Practice of— Copinger 45 CONVEYANCING, Principles of- Deane 23 COPYRIGHT— Copinger 10 CORPORATIONS— Brice 7 Browne 6 COVENANTS FOR TITLE— Copinger 45 Rawle 38 CREW OF A SHIP— Kay 15 CRIMINAL LAW— Bishop 38 Copinger 42 Moncreiff 42 See MAGISTERIAL LAW. CROWN LAW — Forsyth Hall Kelyng . , Taswell-Langmead Thomas 12 30 35 24 27 STEVENS & HAYNES, BELL YAED, TEMPLE BAK. INDEX OF SUBJECTS— con^im^eci. CROWN PRACTICE— Corner CUSTOM AND USAGE- Browne CUSTOMS— See MAGISTERIAL LAW. DAMAGES— Mayne DECREES AND ORDERS— Pemberton DICTIONARIES Brown . DIGESTS— Law Magazine Quarterly Digest DIVORCE— Browning DUTCH LAW— Van Der Keesel . . . . Cape of Good Hope Reports. ECCLESIASTICAL LAW— Brice EDUCATION ACTS— See MAGISTERIAL LAW. ELECTION LAW & PETITIONS— Bushby 33 Hardcastle 33 O'Malley and Hardcastle ... 33 EQUITY— Choyce Cases 35 Pemberton 32 and 41 Snell 22 EVIDENCE— See USAGES AND CUSTOMS. EXAMINATION OF STUDENTS— Indermaur 21 EXTRADITION— Clarke 44 See MAGISTERIAL LAW. FACTORIES— See MAGISTERIAL LAW. FISHERIES— See MAGISTERIAL LAW. FIXTURES- Brown '3 FORGERY— See MAGISTERIAL LAW. FRAUDULENT CONVEY ANCES- May 29 GAIUS INSTITUTES— Harris 27 31 41 39 26 37 38 38 GAME LAWS— Locke . .SV^ MAGISTERIAL LAW. HACKNEY CARRIAGES— See MAGISTERIAL LAW. HINDU LAW. Coghlan Michell HISTORY— Taswell-Langmead . . . . HYPOTHECATION — Kay INDEX TO PRECEDENTS— Copinger INFANTS— Simpson INJUNCTIONS— Joyce INSTITUTE OF THE LAW— Brown's Law Dictionary . INSURANCE— Bliss Parsons INTERNATIONAL LAW— Clarke Woolsey INTOXICATING LIQUORS— ^-.f^ MAGISTERIAL LAW. JOINT STOCK COMPANIES — See COMPANIES. JUDGMENTS AND ORDERS— Pemberton JUDICATURE ACTS— Griffith Indermaur FAGB 32 27 44 24 15 40 43 II 26 38 38 44 JURISPRUDENCE— Forsyth JUSTINIAN'S INSTITUTES— Harris LAND TENURES— Finlason LANDS CLAUSES CONSOLIDA- TION ACT . LARCENY See MAGISTERIAL LAW. LAW DICTIONARY— Browu ....,.••• LAW MAGAZINE & REVIEW^ . LEADING CASES— Common Law Constitutional Law . . . . Equity and Conveyancing . . Hindu Law Contracts LEASES— Edge 41 48 21 ^'1 26 j 37 21 ; 27 21 27 38 45 I d 2 INDEX OF SUBJECTS— continued. LEGACY AND SUCCESSION- Hanson LEGAL REMEDIES- High LICENSES— ^ ^ ^„, See MAGISTERIAL LAW. LIFE ASSURANCE— Bliss Buckley Reilly LIQUIDATION with CREDITORS- Roche and Hazlitt . . • • • And see BANKRUPTCY. LLOYD'S BONDS MAGISTERIAL LAW— Greenwood and Martin . MALICIOUS INJURIES- See MAGISTERIAL LAW. , MANDAMUS— 1 High I MARINE INSURANCE— 1 Parsons MARRIAGE AND DIVORCE— Browning ^° MARRIED WOMEN'S PRO- PERTY ACTS— Griffith 2b MASTER AND SERVANT- See SHIPMASTERS & SEA- MEN. 47 38 38 29 29 14 46 15 38 14 15 46 9 29 13 6 45 31 10 MASTERS AND SERVANTS— See MAGISTERIAL LAW. MAXIMS AND PHRASES— Trayner 39 MERCANTILE LAW— See SHIPMASTERS & SEA- MEN. 1 „ STOPPAGE IN TRANSITU. MERCHANDISE MARKS— ! Daniel 42 MINES— &^ MAGISTERIAL LAW. NEGLIGENCE— Campbell 4° OBLIGATIONS— I Brown's Savigny 28 OVER-RULED CASES — Bigelow 38 PARLIAMENT— Taswell-Langmead . . . .24 Thomas ....... 27 PARLIAMENTARY PRACTICE— Browne Smethurst ^o PASSENGERS— .S^.- MAGISTERIAL LAW. „ RAILWAY LAW. PASSENGERS AT SEA— Kay PATENTS— Wynne's Bovill Case .... PAWNBROKERS— See MAGISTERIAL LAW. PERSONATION and IDENTITY— Moriarty PILOTS— i Kay POLICE GUIDE- Greenwood and Martin . 1 PRACTICE BOOKS— I Bankruptcy j Companies Law i Compensation 1 Compulsor)- Purchase. . . • I Conveyancing I Damages Divorce ^ I Ecclesiastical Law ° ] Election Petitions 33 I Equity ^~ ' Injunctions '' Judicature Acts 4° Magisterial 4t> Privy Council 44 Railways . '4 Railway Commission .... o Rating ^ PRINCIPLES— Brice (Corporations) • • • ' l Browne (Rating) ^ ■ 23 ■ 32 21 22 Deanc (Conveyancmg Houston (Mercantile) . . Indermaur (Common Law) Snell (Equity) . . . • PRIORITY — Robinson 32 PRIVY COUNCIL— Michell 44 PROBATE— Hanson 47 PROHIBITION— High 3« PUBLIC WORSHIP— Brice 8 j QUESTIONS FOR STUDENTS- Aldred 28 Indermaur 21 STEVENS & HAYNES, BELL YAKD, TEMPLE BAE. INDEX OF SUBJECTS— conHnued. QUO WARRANTO- High . . . PAGE . 38 RAILWAYS— Browne " Godefroi and Shortt .... 14 Lloyd 13 See MAGISTERIAL LAW. RATING— Browne 6 REAL PROPERTY— Aldred 28 Deane 23 REFEREES COURT— Smethurst 20 REGISTRATION OF BIRTHS AND DEATHS— Flaxman 43 REPORTS— American 3° Bellewe 34 Brooke 35 Cape of Good Hope . . . . 3^ Choyce Cases .... -35 Cooke 35 Cunningham ... • • 34 Election Petitions 33 Finlason 32 Kelyng, John 35 Kelynge, William 35 Reilly 29 Shower (Cases in Parhament) . 36 RITUAL- Brice ROMAN LAW— Brown's Analysis of Savigny , Harris SALVAGE— Jones Kay . . SANITARY ACTS- See MAGISTERIAL LAW. SEA SHORE— Hall SHIPMASTERS AND SEAMEN- Kay 28 27 30 15 SOCIETIES— See CORPORATIONS. SOLICITORS' REMUNERATION. Turner STAGE CARRIAGES— See MAGISTERIAL LAW. STATUTE OF FRAUDS— Throop 38 STATUTES— Revised Edition 12 STOPPAGE IN TRANSITU- Houston Kay 32 15 STUDENT'S BOOKS- Brown Coghlan Deane . Griffith . . . ... 26 ... 27 ... 23 ... 28 Harris 27 Indermaur 21 Snell 22 Taswell-Langmead .... 24 Thomas 27 Woolsey 3° SUCCESSION DUTIES— Hanson 47 SUPREME COURT OF JUDICA- TURE— „ Griffith's Practice 40 TELEGRAPHS— See MAGISTERIAL LAW. TITLE DEEDS- Copinger . TOWNS IMPROVEMENTS— See MAGISTERIAL LAW. TRADE MARKS— Daniel 45 42 TREASON— Kelyng • • • ,• Taswell-Langmead 35 24 TRIALS— Queen v. Gurney ULTRA VIRES— Brice UNITED STATES LAWS . . • 3^ USAGES AND CUSTOMS- ^ Browne VERBAL AGREEMENTS- Throop ■* VOLUNTARY CONVEVANCES- STEVENS & HAYNES, BELL YARD, TEMPLE BAE. WORKS BY J. H. BALFOUR BROWNE, Registrar to the Railway Commissioners. Now ready, in Svo., 1876, price 's. 6 J., cloth, ON THE COMPULSORY PURCHASE of the UNDERTAKINGS OF COMPANIES BY OORPOEATIONS, And the practice in Relation to the Passage of Bills for Compulsory Purchase through Parliament. By J. H. Balfour Browne, of the Middle Temple, Barrister-at-Law ; Author of "The Law of Rating," " The Law of Usages and Customs," &c., &c. In one volume, 8vo., 1875, price i8j., cloth, THE PRACTICE BEFORE THE RAILWAY COMMISSIONERS UNDEE THE EEGULATION OP EATLWAYS ACTS, 1873 and 1874 ; With the Amended General Orders of the Commissioners, Schedule of Forms, and Table of Fees : together with the Law of Undue Preference, the Law of the Jurisdiction of the Raihvay Commissioners, Notes of their Decisions and Orders, Precedents of Forms of Applications, Answers and Replies ; and Appendices of Statutes and Cases. Bv J. H. BALFOUR BROWNE, Of tlie Middle Temple, Barrister-at-Laui, and Registrnr to the Raikvay Commissioners. " Mr. Browne's book is handy and convenient in form, and well arranged for purposes of reference ; its treatment of the subject is fully and carefully worked out : it is, so far as we have been able to test it, accurate and tmstworthy. It is the work of a man of capable legal attainments, and by oflicial position intimate with his subject ; and we therefore think that it cannot fail to meet a real want and to prove of service to the legal profession and the public." — Law Magazine. In one thick volume, 8vo., 1S75. price 2^s., cloth lettered, THE PRINCIPLES OF THE LAW OF RATING HEREDITAMENTS in the OCCUPATION of COMPANIES. By J. H. BALFOUR BROWNE, Of the Middle Temple, Barrister-ai-Law; Registrar to the Railway Comtnissioners. "The tables and specimen valuations which are ] that such a work is much needed, and we are sure printed in an appendix to this volume, will be of that all those who are interested in, or have to do great service to the parish authorities, and to the I with public rating, will find it of great service. legal practitioners who may have to deal with the ! Much credit is therefore due to Mr. Browne for his rating of those properties which are in the occupa- 1 able treatise — a work which his experience as tion of Companies, and we congratulate Mr. Browne Registrar of the Railway CommissioD peculiarly on the production of a clear and concise book of I qualified him to undertake." — Latu Magazine. the system of Company Rating. There is no doubt ' In 8vo., 1S75. price "js.GiL, cloth, THE LAW OF USAGES and CUSTOMS: ^ Practical ILato tlTracr. By J. H. BALFOUR BROWNE, Of the Middle Tetnple, Barrister-at-Lanu ; Registrar to the Railway CotnmissioHers. " Mr. Browne has in this work chosen for exposition an interesting and difficult branch of the law. He has discharged his duty with great ability and industry. "We look upai this treatise as a valuable addition to works written on the Science of Law." — Canada Law Journal. " This is a very elegantly produced volume, and is written in an extremely scientific and agreeable style. "As a tract upon a very troublesome department of law it is admirable — the prin- ciples laid down are sound, the illustrations are well chosen, and the decisions and dicta are harmonised so far as possible, and distinguished when necessary." — Lrish Law Times. " As a book of reference we know of none so comprehensive dealing with this particular branch of Common Law. ... In this way the book is invaluable to the practitioner." — La7u Magazine. STEVENS & HAYNES, BELL YARD, TEMPLE BAE. THE LAW OP CORPORATIONS. In 8vo., 1874, price 2ls., cloth, A TREATISE ON THE DOCTRINE OF ULTRA VIRES: BEING AN INVESTIGATION OF THE PRINCIPLES WHICH LIMIT THE CAPACITIES, POWERS, AND LIABILITIES OF CORPORATIONS, AND MORE ESPECIALLY OF JOINT STOCK COMPANIES. BY SEWARD BRICE, M.A., LL.D., London, Of the Inner Temple, Barrister-at- Law. " Here is a volume of 500 pp. upon a title to which, so far as we are aware, not even a chapter of any text-book in this country has been devoted, and to which we are quite sure no distinct heading has ever been assigned in an American Digest. Upwards of iioo Cases are cited in this work, of which it may be fairly assumed that few do not involve pecuniary interests of considerable magnitude. In the ne.'it decade we may be sure that the doctrine of Ultra Vires as applicable to railroads, municipal and other chartered bodies in the United States, will assume a large political as well as legal importance. We welcome his pioneer volume as a fair result of the author's ' attempt, though, perhaps, nothing more,' to collect and group the more important of these various decisions. . . . This is the only work of its kind afforded the pro- fession of either country. The English cases, many of great authority with us, are here collected and lucidly arranged. Besides the questions constantly presented to the Courts, it happens frequently that Corporation Counsel are called upon to give advice which may affect property of great value. In such an emergency this volume would be of essential service." — American Law Review, October 1874. " Much as one may be surprised at the confusion which clouds the doctrine of Ultra Vires, it is all the more pleasant to notice the lucid manner in which it has been handled by the author. His arrangement of the work is logical, and his treat- ment of the parts clear and concise. The work is arranged under four main heads. Each part appears to be well and appropriately filled up. The refer- ences to decided cases are full and accurate. The result is a body of law essential as an appendi.x to any work on Corporations, and such as should be on the shelves of any lawyer who assumes to have a useful and reliable library of modern law."— Canada Law JoiirnaL " Mr. Brice writes with knowledge and with pre- cision ; and his volume is probably as good^as was possible in the present stage of the lzw."—T/te Daily News. , , , . r "A guide of very great value. Much mformation on a difficult and unattractive subject has been collected and arranged in a manner which will be of great assistance to the seeker after the law on a point involving the powers of a company.' —i,aw Jo7irnaL "Mr. Brice himself calls his work an attempt to reduce a vast mass of authorities to something like order, and to deduce from them some general con- clusions. To our mind it is a very creditable and courageous attempt, and really of the same class as those which started our present excellent text-books in other branches of the law. But here the author has chosen for himself a subject of great difficulty, and one in which he will find it difficult to interest the general student. The doctrine of Ultra Vires is of very modern growth, and took its rise in the attempt of our Courts to make old law fit a new state of facts by using and refining upon a maxim. The doctrine is thus, as Mr. Brice says, purely the creature of judicial decisions, and for this reason it forn'S a most embarrassing and awkward subject for any legal writer. In this case the author has certainly worked hard, and displayed great industry and research. He has endeavoured, and that suc- cessfully, to force his subject into some logical order, and to arrange a mass of vague decisions under different heads as clearly as was possible. He has, at all events, laid the foundation for, per- haps, a more complete and systematic text-book ; which at some future time, when the Courts are themselves more logical in their decisions, will be written. He has certainly called attention to a most important branch of our law, which has hitherto been much neglected. It is a branch, also, which is daily growing in importance with the growth of Corporations and the increase of Joint Stock Com- panies. To investigate the principles which liiait their capacity, power, and liabilities, is certainly a task worthy of the undertaking by any lawyer, more especially at the present time. We congnaulate Mr. Brice on his success in so far as he has gone, and look forward to the time when some future edition of his work shall, the law itself on Ultra Vires having become more settled, be considered as one of our standard works upon iu own special subject."— 7'/a; Law. " It is an exceedingly valu.ible work at this time when the rights and powers of Corporations are matters of so much interest in the United States, as well as in Great Britain, and its manifold cases furnish as interesting reading to the businc^ man generally as to the lawyer or justice.' —.e actice on procedure to adjudication, liquidation, and composition with creditors, and on procedure under a debtors' summons . It is not often that a practicing lawyer is able to turn to a book on Practice written hy tlie judges of tlu parti- cular Court to which it relates, and, as it 7vere, stamped with ilie seal o/ authority hi con- clusion, we have only to say that Messrs. Roche and Hazlitt iiave appended to t/teir work a very full and copious index, and that -we can cordially and conscientiously recommend it to tlie notice of the legal prof ession." From the SOLICITORS' JOURNAL. " In the book before us, a reader is enabled by means of large consecutive figures at the head of each margin to reach the section and cases he re- quires without the trouble of referring to the index. In the hurry of daily practice this will probably be found no small advantage. In the subsequent chapters on adjudication, liquidation, composition, and debtors' summons, the arrangement adopted is the convenient one for practical purposes of tracing each consecutive step of the procedure, and weld- ing together the provisions of the Acts, Rules, and Forms, with the subst.ance of the cases. This appears to us to be successfully accomplished, and the book, as a whole, constitutes a useful digest of the statutory and case law. .As regards the former, the work appears to contain every provision rela- ting to or connected with the siibject, includine even the orders made in December, 1869, transfer- ring business then pending. The cases ar; taken from a wide range of reports and include a con- siderable number cited from MSS. notes. I he index is unusuallv full, combining both an malysis and index ; and, lastly, the type and pape; are all that can be desired." 10 STEVENS & HAYNE8, BELL TAED, TEMPLE BAK. In preparation, and to be published immediately new Rules are issued, CORNER'S CROWN PRACTICE: Being the Practice of the Crown Side of the Queen's Bench Division of the High Court of Justice ; with an Appendix of Rules, Forms, Scale of Costs and Allowances, &q, SECOND EDITION. By FREDERICK H. SHORT, of the Crown Office, and R. L. LOVELAND, OJ the Inner Temple, Barrister-at-Law, Editor of " Kelyng's Crown Cases," and " Hall's Essay on the Rights of the Crown in the Sea Shore." In one volume, 8vo., 1870, price i8j., cloth lettered, THE LAW OF COPYRIGHT, In Works of Literature and Art ; including that ot the Drama, Music, Engraving, Sculpture, Painting, Photography, and Ornamental and Useful Designs ; together with International and Foreign Copyright, with the Statutes relating thereto, and References to the English and American Decisions. By Walter Arthur CopiNGER, of the Middle Temple, Barrister-at-Law. " A book that is certainly the most complete trea- "The book is a thoroughly good one."— The tise upon the complex subject of copyright which Bookseller. has ever been published in England." — Aihenceum. • "We refer our readers to this capital book "A work much needed, and which he has done on Copyright." — The Fublishers' Circular. exceedingly well." — American Law Revieiti. In 8vo., 1873, price lOr. 6endices contain an immense variety of forms, tables, scales, &c., em- bracing fees, medicines, boats, protests, bottomry, and respondentia bonds, orders in council, instruc- lions to emigration officers, lights, bye-laws as to pilots, remuneration of receivers, and other matters and things too numerous for detail. " The volumes are well printed, with wide mar- gins, and present a smart appearance both in cover and page ; and, while they will find their way to the cabins of the ni.asters of all big passenger steamers and merchantmen, they will, we believe, also adorn the shelves of many lawyers." From the MANCHESTER EXAMINER. " In a brief notice no idea could be given of the importance, or even theextent, of the details referred to in Mr. Kay's book, and a catalogue of the con- tents would constitute a small pamphlet. There are also in the course of the treatise interesting his- torical references, and the duties and responsibilities of passengers are not overlooked. Speaking gene- rally of the lawof shipping, as defined and described in the book before us, we may say that the seaman has a Magna Charta of his own. The rights of the owner, of the ship's officers, and of the sailors arc all clearly recognised on the statute book, and the penalty for the infringement is in every case speci- fied. We read of the precautions for the safety of life and property exacted by the authorities, and of the conditions which must be fulfilled before a vessel is pronounced seaworthy ; yet we learn with amazement that before 1850 no proper precautions were taken in England to protect the public from the appointment of ignorant and untrustworthy men as masters of ships. In illustration of the various branches of his subject Mr. Kay refers to more than a thousand cases. The appendices also contain a considerable amount of valuable information, and the index is so complete that it indirectly serves the additional purpose of a glossarj-. In his preface Mr. Kay modestly hopes that h'.s book ' may prove to be a useful book of reference for intelligent masters and for ship agents and consuls in foreign ports on matters relating to shipmasters and seamen.' That it will pro^■e useful to them we have no doubt whatever, and that it will be gratefully accepted as a boon by many others we are equally sure. Directly or indirectly, it cannot but prove an important work of reference to all who are engaged in the shipping trade, and Mr. Kay deserves the thanks of the commercial as well as of the shipping community for having so successfully carried out his arduous task.' Tins day is published, l2mo., lSj6, price J2S., cloth, \ TREATISE ON THE LOCUS STANDI OF PETITIONERS AGAINST PRIVATE BILLS IN PARLIAMENT. THIRD EDITION. By JAMES MELLOR SMETHURST, Esq., of Trinity College, Cambridge, M.A., and of the Inner Temple, Barrister at-Law. WORKS FOR LAW STUDENTS. 21 MR. INDERMAUR'S BOOKS FOR STUDENTS. " Mr. Indermaur's books are admirably adapted to the purpose for which they are written, and we heartily recommend them to students and teachers, who will tind them exceedingly convenient compen- diums of the law." — Atnerican Law Revieiu. Now ready, in one volume, 8vo., 1876, price lOs., cloth. PRINCIPLES OF THE COMMON LAW. Intended for the Use of Students and the Profession. By John Indermaur, Solicitor, Author of " Epitomes of Leading Cases," and other Works. " Mr. Indermaur has very clear notions of what a law student should be taught to enable him to pass the examinations of the Incorporated Law Society. In this, his last work, the law is stated carefully and accurately, and the book will probably prove acceptable to students." — Lavi Times. " Mr. Indermaur's book will doubtless be found a useful assistant in the legal pupil room. The state- ments of the law are, as far as they go, accurate, and have been skilfully reduced to the level of learners. Mr. Indermaur possesses one great merit of an instructor — he is able to bring out the salient points on wide subjects in a telling manner." — Law Journal. In Svo., price ds., cloth, THE STUDENT'S GUIDE TO THE JUDICATURE ACTS, 1873 and 1875; AND THE RULES THEREUNDER : Being a book of Questions and Answers intended for the use of Law Students. By John Indermaur, Solicitor, Author of " Self-preparation for the Final Exami- nation," and " Epitomes of Leading Common Law, and Equity and Conveyancing Cases." " As the result of the well-advised method adopted by Mr. Indermaur, we have a Guide which will unquestionably be found most useful, not only to Students and Teachers for the purpose of examination, but to anyone desirous of acquiring a first acquaintanceship with the new system." — Irt's/i Law Times. In Svo., Second Edition, 1876, price 4^., cloth, SELF-PREPARATION FOR THE FINAL EXAMINATION. CONTAINING A COMPLETE COURSE OF STUDY, WITH STATUTES, CASES, AND QUESTIONS; And intended for the use of those Articled Clerks who read by themselves. By JOHN Indermaur, Solicitor (CHfford's Inn Prizeman, Michaelmas Term, 1872) ; Author of " Epitomes of Leading Common Law, and Equity and Conveyancmg Cases." ^ Third Edition, in 8vo., 1875, price 6s., cloth, AN EPITOME OF LEADING COMMON LAW CASES; WITH SOME SHORT NOTES THEREON. Chiefly intended as a Guide to " Smith's Leading Cases." By John Indekmauk, Solicitor (Clifford's Inn Prizeman, Michaelmas Term, 1672). has fnserted the well-known case of Cur>^e v. Misa im mediately after J/.//^r v. /!ac.. - La.vJcHrnaU^ Second Edition, in 8vo., 1874, price 6j., cloth, AN EPITOME OF LEADING CONUYANCING AND EQUITY CASES; WITH SOME SHORT NOTES THEREON, FOR THE USE OF STUDENTS. Bv TOHN Indermaur, Solicitor, Author of " An Epitome of Leadmg ■' -^ Common Law Cases." "We have received the second edition of Mr- Indermaur's ve^ useful Epitome of Leading Convey- ancing and Equity Cases. The work .s very wc. done "f -"^.^ ^rgtudents-for whom i. is csoccially ,Z:^ ^^^Tr^ -:-- ^^Hnr^^r^^c^^tudents' Friend.--C. «^ ^^^ 7^^'^- 22 WORKS FOB LAW STUDENTS. Third Edition, in Svo., price 20s., cloth, THE PRINCIPLES OF EQUITY. 3Intcntieti for tljc (110e of »)tuDcnt2i anU djc ^cofe00ion. By EDMUND H. T. S N E L L, OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW. Third Edition. By JOHN R. GRIFFITH, of Lincoln's Inn, Barrister-at-Law. In One Vol., 8vo., 1874. *^* This Work has become a Standard Class- Book in England, Ireland, India, and the Colonics. " The second edition of this Treatise was noticed in this RevUw in October, 1872 ; the first edition had appeared in 1868. We are glad to see evidence of its growing popularity. As a second book in equity wc are inclined to think it is the best which has been published. Mr. Snell's Treatise presents compactly, and (considering the size of the book) with remarkable comprehensiveness, the leading points on the various heads of Equity jurisdiction. Its selection of the most recent Cases is very valuable for the student and for the practitioner who desires a convenient vade-mecum, this book can be safely recom- mended." — American Law ReviccV, " We know of no better introduction to the Priticiples of Equity. While affording to the Student an ifisight to principles of which as yet he is not master, it places at the service of those familiar with the doctrines of Equity, the most recent cases establishing or qualifying well u?iderstood principles. " — Canada Law Journal. " Equity can never be made easy, nor is it desirable that it should be so ; but in the fact of the large equitable jurisdiction conferred recently — that is, since 1853 — upon Common Law Courts, and the extension of equitable principles and rules, to the exclusion of Common Law, contemplated by the Judicature Bill, it behoves every practitioner to know as much as possible of equity with as little expense of time as possible, and for this purpose we know of no better work than Mr. Snell's. It presents in a small compass the substance of ' The Leading Cases,' and of Story's work on ' Equity Jurisprudence ;' while students will be delighted to find clear, logical, and intelligible explanations of its most mysterious process and development. The work professes to be based on the lectures of Mr. Birkbeck, but it has now reached its third edition in a few years, and is admirably noted up with the latest decisions and enactments. We find particu- larly good information concerning the equitable and statutable rights of married women, and the priorities of equitable and legal, registered and un- registered, mortgages. Counsel, attorney, and student, will find it a useful, and especially a safe guide in what it professes to teach." — Irish Law Tvnei. "The great merit of the book now under con- sideration is its scientific arrangement and accuracy. It, therefore, becomes a most excellent guide to those Common Lawyers who have somehow ac- quired the notion that Equity is a vague term for a sort of natural justice, and that it recognises no rules such as are found in the Common Law. This book is indeed a most praiseworthy and successful attempt to reduce Equity Jurisprudence to a science, and as such deserves every commendation that can be bestowed ; for by doing so it makes one more step towards that complete codification of our law which should be the aim and the desire of every true lawyer. To the ordinary student of Equity it is indeed unnecessary for us to say one word in its praise and recommendation. But as every Common Lawyer must before long add to his knowledge some idea of equitable doctrine, it is to them especially that we commend this book. They will find in it the principles of Equity set out and illustrated in a really scientific and, we may say, workmanlike way, and for this reason they will recognise in its method the style of thought and manner to which they have long been accustomed." — The Law. "We have received the third edition of Snell's Equity, by Mr. J. R. Griffith. The statute and case Law has been brought down to the time of publication, and this admirable standard work may therefore be used without any more assistance than is afforded by the current reports." — Law Times. WOEKS FOR LAW STUDENTS. 23 In one volume, 8vo., 1874, price i8j., cloth, PRINCIPLES OF GOMVEYANCING. AN ELEMENTARY WORK FOR THE USE OF STUDENTS. By Henry C. Deane, of Lincoln's Inn, Banister-at-Law, sometime Lecturer to the Incorporated Law Society of the United Kingdom. "Mr. Deane is one of the Lecturers of the Incorporated Law Society, and in his elementary work intended for the use of students, he embodies some lectures given at the hall of that society. It would weary our readers to take them over the ground necessarily covered by Mr. Deane. The first part is devoted to Corporeal Hereditaments, and the second to Conveyancing. The latter is prefaced by a very interesting "History of Conveyancing," and for practical purposes the chapter (Ch. 2, Part II.) on Conditions of Sale is decidedly valuable. The most recent legislation is handled by Mr. Deane in con- nexion with the old law, the Judicature Act and the Vendor and Purchaser Act both being considered inthis chapter on Conditions of Sale. We might make some interesting quotations, but the work is one which those engaged in conveyancing should purchase and put on their shelves, and welcome it with the recommendations which we have already recorded." — Law Times. " We hope to see this book, like S?ieirs Equity, a standard class-hook in all Law Schools whe?'e English lazv is taught.'" — Canada Law Journal. " This is, as its author states, a purely elementary work. It may indeed be called the A B C of con- veyancing. In the clearest and simplest language the student will find an outline, firstly, of the various forms of ownership in land, and, secondly, of the ordinary modes of conveyances used in transferring such land from one person to another. The second portion is founded upon lectures that were delivered by the author at the Incorporated Law Society, and is accordingly very clear and practical. The whole work is very well and thoroughly done. Mr. Deane has, we believe, succeeded in writing the very simplest work ever published on the abstruse subject of conveyancing ; and has by his language and illustrations, explained points of law in a way that cannot be misunderstood. For this reason, and as being the most elementary work combining the elements of real property law with the principles of practical conveyancing, we can heartily recommend it as a first book on the subject of which it treats. As such we should think it would be both worthy and suitable to be named as one of the books that are required to be read as a preparation for the various Law Examinations." — T/ie Law. " We can confidently recommend Mr. Deane's work on the ' Principles of Conveyancing.' It is not exhaustive, and does not pretend to go fully into the laws of trusts, powers, or remainders, but it fully explains the several different legal and equitable estates in land and the tenure of land, and the modes of alienation used in conveyances inter vivos and by will. It also fully explains the meaning and value of the several parts of the conveyances, the cove- nants, conditions, provisoes, exceptions and reser- vations, habendums, and the proper form of recitals, &c., &c. — a point frequently neglected in other and more pretentious treatises. It contains excellent chapters on purchase deeds, leases, mortgages, settlements, and wills ; and, in addition, Mr. Deane treats of conditions of sale most fully and clearly. It seems essentially the book for young convey- ancers, and will, probably, in many cases supplant Williams. It is, in fact, a modern adaptation of Mr. Watkin's book on conveyancing, and is fully equal to its prototype." — Irish Law Times. "A general review of the scope of Mr. Deane's volume and a perusal of several of its chapters have brought us to the conclusion that, though its contents are purely elementary, and it contains nothing which is not familiar to the practitioner, it may be extremely useful to students, and especially to those gentlemen who are candidates for the various legal examinations. There are so many questions set now on case law that they would do well to peruse this treatise of Mr. Deane's, and use it in conjunction with a book of questions and answers. They will find a considerable amount of equity case law, especially in the second part of Mr. Deane's book, which comprises in substance some lectures delivered by the author at the Law Institution." — Law JournaL " As Mr. Deane's work is addressed to the rising generation of conveyancers, ' students entering upon the difficulties of real property law,' it maybe presumed that he does not fear the immediate anni- hilation of that noble science in its traditional forms by any legislative changes. The first part of the volume is composed of a series of chapters on cor- poreal hereditaments, and the second part of some lectures on conveyancing recently delivered by the author at the Law Institution. It is enough to say that Mr. Deane writes clearly and to the point."— Saturday Review. 24 WORKS FOR LAW STITDENTS. In one thick volume, 8vo., 1S75, price 2\s., clolh. ENGLISH CONSTITUTIONAL HISTORY. ^tsirjmb as a ^t^t-'§oolx for ^iubents anb (Otbcrs. BY T. P. TASWELL-LANGMEAD, B.C.L., Of Lincoln's Inn, Barrister-at-Law, late Vinerian Scholar in the University of Oxford, and Tancred Student in Common Law. Extracts from soi/ic Reviews of this Work : — " Mr. Taswell-Langmead has produced a useful and convenient text-book on the historical devclupnient of our political institutions. It is well written, carefully arranged, and supplies a trustworthy and fairly full outline of the subject of which the author treats ; valuable alike for the purposes of refreshing the memory of those to whom it is still already familiar, and of directing the curiosity of those to whom it is still new. The book is of course a compilation. But it is a judicious compilation, and a compilation from the best authorities. Mr. Taswell-Langmead lias drawn freely upon Mr. Hallam, Sir Erskine May, Mr. Freeman, and Professor Stubbs. But he has d'.tne more than merely borrow facts and phrases from his authors. He has caught the spirit of recent historical research, at once minute in its accuracy and wide in the views it suggests, of which Mr. Freeman and Professor Stubbs are among the most eminent exponents, and of the elTects of which in their writings they have given some of the most ci)nspicuous examples. On the whole, we think Mr. Taswell-Langmead may be congratulated upon having compiled an elemen- tary work of conspicuous merit." — Pa// Ala// Gazette. " Here is a book against which there is not a word to lie said. . . . It is a remarkably good specimen of its cla^s. . . . The matter of Mr. Taswell-Langmead's book is almost always very good. He has got up his subject exceedingly well, and in a manner highly creditable to his own studies." — Saturday Revie7v. " It bears marks of great industry on the part of the compiler, and is most completely stocked with all the important facts in the Constitutional History of England, which are detailed with much conciseness and accuracy, . . . and is very full and cXqth.''''— Spectator. "We may therefore state shortly the opinion which we have formed, that Mr. Lang- mead was thoroughly qualified for the labour which he undertook, and that he has executed his work most ably and most conscientiously. For students of history we do not know any work which we could more thoroughly recommend." — Law Times. " Mr. Taswell-Langmead's work is intended to furnish a guide to the law student. He has availed himself largely of Hallam and Sir Erskine May, and by judiciously combining the pith of those authors with that of other authorities, has, in our opinion, produced a text-book of no small value, accurate, full, yet not unwieldy, and calculated to smooth very considerably the path of the student. The execution seems to be even and careful throughout, and though the book does not profess to be more than a com- pilation, it is compiled from a wide range of authorities, and is written in so easy a style as to be likely to attract the general reader."— 3'^//«V(?r.f' Joiirna/. '' It is a safe, careful, praiseworthy digest and manual of all constitutional history and law." — G/obe. "We have here, in the compass of one goodly volume, a handv book both for the student at the Universities and Inns of Court, and for the general reader, embracing every topic of constitutional importance, from the days of the Witan to the return of John Mitchel for Tipperary. Mr. Taswell-Langmead's book has the merit of being written in clear language, which is equally adapted for students ' and others.' . . . For conciseness, comprehensiveness, and clearness, we do not know of a better modern book than Mr. Taswell Langmead's ' English Constitutional History.' ''—Notes and Queiies. WORKS FOS LAW STUDENTS. 35 ENGLISH CONSTITUTIONAL HISTORY. REVIEWS OF THE WORK— continued. " For the History of tlie English Co .stituti n we have three standard works, which, taken together, present a nearly complete and continuous discussion of tlie suhject : the Constitutional Histories of Stubbs, Hallam, and May. But a treatise at once brief and complete, with a unity of plan covering the entire ground, and containing the results uf the latest scholarship, was very much needed. This want Mr. Tasvvell-Langmead has undertaken to supply, and, we are glad to say, with complete success. ... He knows how to select materials and how to use them to advantage when selected. For example, the a.rrangement is entirely original, and is a very excellent one. He has especially had in mind the requirements of class instruction, and with a view to this use he has intro- duced the entire text of the three most important documents in English constitutional history — the Magna Charta, the Petition of Right, and the Bill of Rights. " Mr. Taswell-Langmead's professional training as a lawyer is the source of one high qualification for this work. His legal definitions are conspicuous for clearness and exact- ness. Where the complete text of documents is not given, we have admirable analyses of their contents ; the 'Constitutions of Clarendon' (p. 90) afford a striking example of this excellence." — TAe Nation (New York). "The volume on English Constitutional History, by Mr. Taswell-Langmead, is exactly what such a history should be. Mr. Taswell-Langmead writes clearly and concisely, and yet, even when treating of dry subjects, he is always readable. To students of constitu- tional history the work will be of great value, while it is well worth the careful perusal of all Englishmen who feel any interest in knowing how that constitution of which all Eng- lishmen are so proud, but of which most Englishmen are profoundly ignorant, has. grown up. The notes are numerous and well selected, and references are always given to the authorities quoted. The in lex is full and copious — an important point in a book intended for reference as well as for study." — Standard. " But we must say a few words about the book before us, and they will be words of high praise. The author has, of course, made ample use of Hallam, Stubbs, Freeman, Erskine May, and other authorities, and a text-book which did not freely use the leading authorities would be valueless. Yet we do not hesitate to describe Mr. Taswell-Lang- mead's book as an original, as well as a very meritorious, work. It is not a mere com- pilation. It is the fruit of extensive and well-digested reading. The author has an easy and lucid style, but he has not hesitated to quote from his authorities when there has been no need for condensation. He adopts the chronological method, though not without excep- tion — as, e.g., chapter vii., which is an excellent account of the ' Origin of Parliament.' As a text-book for the student this work will be invaluable, because it is very compre- hensive, and yet so arranged and written that it leaves a definite impression of the history, as a whole, on the mind. For young men, and we will add for women who have not the time and opportunity for reading 1 onstitutional history, this work is especially adapted. As a text-book for students, we regard it as an exceptionally able and complete work." — Law Jou7'nal. " Mr. Taswell-Langmead has endeavoured in the present volume to bring together all the most prominent features in the Constitutional History of England, and explain their origin and development. The latter portion of his work contains an admirable account of the action of parties in the Slate since the Revolution, untinged, however, by partisanship, and it is possible to gain from a hundred pages of Mr. Langmead's work a knowled:4e of the growth and progress of the present system, whicii elsewhere could only be obtained in many volumes." — Ir/'s/i Law Turns. " Every one who takes a real interest in the history of the past and of the present— the true and living scion of that past— will gladly welcome the publication of such manuals as Mr. Taswell-Langmead's, which, at reasonable length and in readable four and language, will do muchlo make popularly known the origin and the growtli of oui institutions,''and the reasons for their continued existence or moderate and harnionious reform. Such manuals when comiiilcd with the conscientious carefulness here mamfi-stcd on every page, are not only useful to the large and growing class of students, but arc handy sumnmries of history which no library can do without. . . . Mr. T.is\vell. Langmead has thoroughly grasped the bearings of his subject. It is, however, in dc.ilmg with that chief subject of constitutional histoiy— parliamentary government— that Uie work exhibits its great superiority over its rivals."— /f«■s■ Jcur,tal.\ BISHOP'S COMMENTARIES ON THE CRIMINAL LAW. Two vols., royal 8vo. Fifth Kdition. 1S7;. 3/. io,r., clo:h. BLISS (G.). THE LAW OF LIFE INSURANCE. With a Chapter on Accident Lisurance. Secunes where Verbal Agreements are not valid ; together with other kindred it-g- Ugence' which are to be found in a very good book — Campbell's Law of Negligence." — Mr. Justice Willes in the case of " Oppeiiheiti v. White Lion Hotel Co." " We presume from this being styled the first of a series of practical Law Tracts, that Mr. Campbell which, from the success of his first attempt, we shall expect to see him elucidate considerably. If, however, he should ever find time to expand this tract on the Law of Negligence into a complete treatise, we shall e.xpect to find it one of the most satisfactory text-books on English law." — Solicitors' JoHrnal. STEVENS & HAYNES, BELL YARD, TEMPLE BAR. 41 Now Ready, Second Edition, iii one i /nek volume, royal Zvo., of nearly looo />iij;es, pi-ice 50J., cloth lettered, pe]m:beiiton ON JUDGMENTS AND ORDERS. BEING A TREATISE UPON THE JUDGMENTS, DECREES AND ORDERS OF THE COURT OF APPEAL AND HIGH COURT OF JUSTICE, Chiefly in reference to Actions assigned to the Chancery Division. WITH COMPLETE FORMS OP ORDERS. SECOND EDITION, CONSIDERABLY ENLARGED. ByLOFTUS LEIGH PEMBERTON, One of the Registrars of the Sitpretne Court of Jitdicature ; Author of " 7he Practice in Equity by way of Rexnvor and Supplement." REVIEWS OF THE FIRST EDITION. "This is a work with an unpretending title, which in reality contains much more than would natumlly be inferred from its title page. . . . The work before us contains, not only a copious and well-selecte'l assortment of precedents, taken in every instance from orders actually made (and with proper references to the reports in all instances of reported cases), but also a series of notes, in which the result of the leading cases is succinctly given in a highly-convenient, though somewhat fragmentary, form ; by the light of which the practitioner will, in all ordinary cases, be easily able to adapt the opposite preced«nt to the general circumstances of his own case. We consider the book one of great merit and utility, and we confidently recommend it to the consideration of the Profession." — Solicitors' Journal. " This volume, Mr. f'emberton tells us, is the result of labour commenced so long ago as 1869. It has had the benefit, therefore, of patient care, and patience and care having been backed up by extensive knowledge and keen discrimination, a work has been produced which, whilst it is not likely to bring its author any high reward, must permanently record his name in legal literature, and prove to the Profession and the Bench a very decided acquisition. ■' Mr. Pemberton has digested tlie cases without expressing any opinion as to their soundness or applica- bility— not giving head notes, as too many text writers aie fond of doing, without taking the trouble to consider whether the'reporter has correctly epitomised the case, but stating in a few words the effect of each decision. This makes the work a compendium of case law on the various subjects comprehended in it. How comprehensive it is we find it impossible accurately to represent to our readers without setting out the table of contents. We have looked through it more than once ; we have carefully examined the citations, and we have formed the very highest opinion of the plan of the work and its execution, and we feel that Mr. Pemberton has placed the entire profession under a lasting obligation." — Linv Tinifs. " A somewhat hasty investigation of the book has disclosed evidence of the conscientious labour, rc^-ard for accuracy, comprehensiveness, and practical aim of the Author. At this transitional {.icriod, Mr. Pemberton's work must prove of great value to the Practitioner in both branches of llie Krofcssioo, harmoniously combining, as it does, those portions of the Old Procedure in Chancery left unaffected by the Judicature Acts and Rules, with that large portion of the New Procedure which the Acts and Rules have, without ambiguity, demonstrated." — Laiu iiJagnzine and Review. " The operation of the Judicature Acts, with the new rules and orders, not only made an opportunity for, but even necessitated, a new publication of forms of judgments and orders. Wc may .safely say that Mr. Loftus Leigh Pemberton's work, in our opinion, should take its rank among the most valuable publications that have been issued ot late. u <• • " Mr. Pemberton's position as one of the registrars of the Supreme Court of Judicature would of itself be a guarantee of the genuineness and correctness of his precedents. The title indicates that his work contains forms of judgments and orders of the Court of Appeal and High Court of Jiisticc, though we must explain that these are chiefly in reference to actions assigned to the Chancery Division. But the scope of the book goes far deeper and wider than its title would intimalc ; the forms, indeed, arc very numerous and comprehensive, all such as are likely to be used in the ordinary practice of the Chancery Division being embodied ; but beyond these, and subjoined thereto, the rules and or.icrs with explanatorv notes, and the supplementary treatises on the practice, backed up, in all cases where ;■. ithontics .arc needed. that nothing which ought to have found place therein is omitted. The ordinary 1. .ms ol judgments ano orders the nucleus of the book, have in most cases been settled and approved by the iud,:e.s : still there u plenty of original matter in this book, and the industry displayed and the amount o rnowlcdgc ol practice embodied are worthy of the highest encomium. Mr. Herbert Jackson, of the Cha. . .ry Kegi-.trar .- omcc, deserves a few words of commendation for an admirable index to the work-a icature ol Uie utmo»t importance." — Law Journal. 42 STEVENS & HAYNES, BELL YAIID, TEMPLE BAE. This day is published, in 8vo., 1876, price 8s., cloth, THE TRADE MARKS REGISTRATION ACT, 1875, And the Rules thereunder ; THE MERCHANDISE MARKS ACT, 1862, with an Introduction containing a SUMMARY OF THE LAW OF TRADE MARKS, together with practical Notes and Instructions, and a copious Index. By Edward Morton Daniel, of Lincoln's Inn, Barrister-at-Law. " The last of the works on this subject, that by Mr. Daniel, appears to have been very carefully done. It commences with an outline of the general law of trade marks, in which the di^tinction3 between the privileges of letters patent, copyright, and the protection afibrded by trade marks are neatly indicated. It then proceeds to treat of the practice under the new Act, and this is the really valuable part of the book. The author has evidently taken pains to make himself acquainted with the various points w hich have ari-en since the registry was opened at the commencement of the year, and his directions to readers are clear and precise. Mr. Daniel's book is a satisfactory and useful guide." — /A? Engineer. "This treatise contains, within moderate compass, the whole of the law, as far as practically required, on the subject of trade marks. The introduction, which is concise and clearly written, gives, in four short chapters, the general principles of the law, the remedies for infringement of trude marks, the new legisla- tion, and practical directions as to registration under the new Act, the last chapter being especially valuable. The second part of the work consists of the Act itself, with short notes, followed by some forms in addition to those contained in the schedules to the Act. Then follows the Merchandise M.irlcs Act 1872, treated in a similar manner. A copious and weU-compiled index completes the work. The publication is opportune, the subject being one which must nearly concern a considerable portion of the public, and it may be recommended to all who desire to take advantage of the protection afforded by registration under the new legislation. It is practical, and seems to be complete in every respect. The volume is well printed and neatly got up." — Law Times. In 8vo. 1876, price 2s., sewed, ON THE ABOLITION OF CAPITAL PUNISHMENT. EMBRACING MORE PARTICULARLY AN ENUNCIATION AND ANALYSIS OF THE PRINCIPLES OF LA^V AS APPLICABLE TO CRIMINALS OF THE HIGHEST DEGREE OF GUILT. By WALTER ARTHUR COPINGER, OF THE Middle Temple, Esq., Barrister-at-Law; Author of "The Law of Copyright in Works of Literature and Art," "Index to Precedents in Conveyancing," " On the Custody and Production of Title Deeds." " We can recommend Mr. Copinger's book as containing the fullest collection we have seen of facts and quotations from eminent jurists, statistics, and general information bearing on ihe subject of capital punishment." — Manchester Courier. In one volume, 8vo., 1876, ^ TI^EATISE ON THE LAW OF REVIEW IN CEIMINAL CASES. WITH A CO^IMENTAKY ON THE SUMMARY PROCEDURE ACT, 1864, AND THE SUMMARY PROSECUTIONS APPEALS {SCOTLAND) ACT, 1875. WITH AN APPENDIX CONTAINING THE STATUTES ; WITH NOTES AND CASES. By The Hon. HENRY J. MONCREIFF, In royal 8vo., 1876, price 2s. 6d., sewed. The Supreme Court of Judicature Acts, 1873 and 1875. THE REMUNERATION TO SOLICITORS, WITH AN ACCOUNT OF MEASURES RELATING TO THE AMENDMENT OF THE LAW SINCE 1831, AND ALSO AN EXAMINATION OF THE PROPOSED ABOLITION OF THE APPELLATE JURISDICTION OF THE HOUSE OF LORDS. By JOHN TURNER, SOLICITOR AND PARLIAMENTARY AGENT ; Author of "Registration of Titles," "Justice and its Miscarriages," "Professional Remuneration," &c. ADVOCATE. I STEVENS & HAYNES, BELL YARD, TEMPLE BAB. 43 Nearly ready, in 8vo., price , clotli, THE PARTITION ACTS, 1868 AND 1876. With the Cases decided thereon, and an Appendix containing Forms of Decrees. By W. GREGORY WALKER, of Lincoln's Inn, Barrister-at-Law., B.A. and late Scholar of Exeter College, Oxford. In 8vo., 1875, price 21s., cloth. f I A TREATISE on the LAW and PRACTICE RELATING to INFANTS. By ARCHIBALD 0/ Lincoln's Inn, Esq., Barrister-at-Law "Such a book was decidedly wanted. If Mr. Simpson had not before him an entirely new and unexplored field for his work, he is at least to be congratulated upon having discovered an arena in which he might expend a large amount of useful and profitable labour. " Mr. Simpson's book comprises the whole of the law relating to infants, both as regards their per- sons and their property, and we have not observed any very important omissions. The author has evidently expended much trouble and care upon his work, and has brought together, in a concise and convenient form., the law upon the subject down to the present time." — Solicitors' Journal. " Its law is unimpeachable. We have detected no errors, and whilst the work n.ight have been done more scientifically, it is, beyond all question, a compendium of sound legal principles." — Law Times. " Mr. Simpson divides his subject into four parts. In the first he discusses the Capacities and Incapacities of Infants ; in the second, the Relation of Parent and Child ; in the third, that of Guardian and Ward ; while the fourth part is devoted to the H. SIMPSON, M.A., , and Fellow of Christ's College, Cambridge. Peculiarities of Procedure caused by the Presence I of an Infant as a Party. Under these divisions Mr. Simpson has arranged the whole of the Law j relating to Infants with much fulness of detail, and yet in comparatively little space. The result is I due mainly to the businesslike condensation of his [ style. The eft'ect of legal decisions and of legisla- I tive enactments is stated without superfluous com- ment or unnecessary speculation, and Mr. Simpson has economised his space by avoiding the common practice of reprinting large masses of text from the Statutes and Law Reports. Fulness, however, h.ii by no means been sacrificed to brevity, and, so far as we have been able to test it, the work omits on point of any importance, from the earliest cases to the last. In the essential qualities of clearness, completeness, and orderly arrangement it leaves nothmg to be desired. " Lawyers in doubt on any point of law or prac- tice will find the information they require, if it c.vi be found at all, in Mr. Simpson's book, and a writer of whom this can be said may congratulate himself on having achieved a considerable success." — La7u Magazine, February, 1876. In 8vo., 1875, price 6j., cloth, THE LAW OONOEMma THE REGISTRATIO]^ OF BIRTHS AND DEATHS ENGLAND AND WALES, AND AT SEA. Being the whole Statute Law upon the subject; together luith a list of Registration Fees and Charges, EDITED, WITH Copious Explanatory Notes and References, and an Elaborate Index, By ARTHUR JOHN FLAXMAN, OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW. " Mr. Flaxtnan's unpretentious but admi- rable little hook makes the ditties of all parties under t/ie Act abundantly clear. . . . Lawyers will find the bock not only handy, but also instruc- tive and suggestive. To registrars, and all persons engaged in tlie e-xecution of the law, tlie hook will be invaluable. The index occupies thirty-five pages, and is so full that information on a minute pomt can be obtained without trouble. It is an index that must have cost the author much thought and time. T/te statements of what is to be done, wlu> may do it, and tvhat must not be done, are so dear tliat it is well nigh impossible for any one who consults the book to err. Those who use ' Flax man's Regis- tration of Births .and Deaths ' will admit that our laudatory criticism is thoroujjhiy merited." — Lira/ "Journal. " Mr. -Arthur John Flaxmnn, barrister-al-law, of the Middle Temple, has pub'i-hed a small work on 'The Law Concerning the Registration of Uirth* and Deaths in England and Wales, and at Sea." Mr. Flaxman has pursued tlic only possible jjan, giving the statutes and references to ca-.cs. The remarkable feature is the in icx, xvhich lili» no lest than 45 out of a toul of 1 c .; pages. The indc» alone would he extremely v '-hi\, and « worth the money asked for the work." ' -/.aw Tinut. 44 STEVENS & HAYNES, BELL YARD, TEMPLE BAE, THE LAW OF EXTRADITION. Second Edition, in 8vo., 1874, price iSs., cloth, A TREATISE UPON THE LAW OF EXTRADITION. WITH THE CONVENTIONS UPON the SUBJECT EXISTING BETWEEN ENGLAND AND FOREIGN NATIONS, AND THE CASES DECIDED THEREON. By EDWARD CLARKE, OF LINCOLN'S INN, BARRISTER-AT-LAW, AND LATE TANCRED STUDENT. " Mr. Clarke's accurate and sensible book is the best authority to which the English reader can turn upon tlie subject of Extradition." — Saturday Reideiu. " The opinion we expressed of the merits of this work when it first appeared has been fully justified by the reputation it has gained. This new edition, embodying and ex- plaining the recent legislation on extradition, is likely to sustain that reputation There are other points we had marked for comment, but we must content ourselves with heartily commending this new edition to the attention of the profession. It is seldom we come across a book possessing so much interest to the general reader and at the same time furnishing so useful a guide to tlie lawyer." — Solicitors' 'Journal. "The appearance of a second edition of this treatise does not surprise us. It is a useful book, well arranged and well written. A student who wants to learn the principles and practice of the law of extradition will be greatly helped by Mr. Clarke. Lawyers who have extradition business will find this volume an excellent book of reference. Magistrates who have to administer the extradition law will be greatly assisted by a careful perusal of ' Clarke upon Extradition.' This may be called a warm commenda- tion, but those who have read the book will not say it is unmerited. We have so often to expose the false pretenders to legal authorship that it is a pleasure to meet with a volume that is the useful and unpretending result of honest work. Besides the Appendix, which contains the extradition conventions of this country since 1843, we have eight chapters. The first is 'Upon the Duty of Extradition;' the second on the 'Early Treaties and Cases ; ' the others on the law in the United States, Canada, England, and France, and the practice in those countries." — Laiv Journal. "One of the most interesting and valuable contributions to legal literature which it has been our province to notice for a long time, is ' Clarke's Treatise on the Law of Extradition.' Mr. Clarke's work comprises chapters upon the Duty of Extradition ; Early Treaties and Cases ; History of the Law in the United States, in Canada, in England, in France, &c., with an Appendix containing the Conventions existing between England and Foreign Nations, and the Cases decided thereon The work is ably prepared throughout, and should fonn a part of the library of every lawyer interested in great Constitutional or International Questions." — Albany Law I Journal. I The Times of September 7, 1874, in a long article upon "Extradition Treaties," I makes considerable use of this work, and writes of it as '■'Mr. Clarke's useful Work I on Extradition.'''' \ In Svo., 1876, price 8j., cloth, THE PRACTICE AND PROCEDURE IN APPEALS FROM INDIA TO THE PRIVY COUNCIL By E. B. MICIIELL and R. B. MICIIELL, Barnstcrs-at-Laio. STEVENS & HAYNES, BELL YAED, TEMPLE BAR. PRACTICE OF CONVEYANCING. In One Volume, 8vo., 1875, price 14J., cloth, title |)eebs: THEIR CUSTODY, INSPECTION, AND PRODUCTION, at HatD, in (Equitp anti t'u S^atrer^ of Conbcpanctng:, INCLUDING COVENANTS FOR THE PRODUCTION OF DEEDS AND ATTESTED COPIES ; With an Appendix of Precedents, the Vendor and Purchaser Act, 1874, ^'C. dr'c. dff. By WALTER ARTHUR COPINGER, OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW ; Author of " The Law of Copyright " and " Index to Precedents in Conveyancing." " There is no sitbjcct on ivhich a practical knowledge is more required than that of title deeds ; and this vohime supplies a want. Mr. Copinger has, in his well-written chapters, e7itered most fully and thoroughly into the special subject matter of his zvork, and has accordingly produced a book worthy of being used by every careful conveyancer zvho knows the importance of studying all questions of title." — The Law. "In dealing with ' documentary evidence at law and in equity and in matters of con- veyancing, including covenants for the production of deeds and attested copies,' Mr. Copinger has shown discrimination, for it is a branch of the general subject of evidence which is very susceptible of independent treatment. We are glad, therefore, to be able to approve both of the design and the manner in which it has been executed. "The work opens with a chapter on the custody of title deeds (i) generally, (2) between trustees and cestiiis que trust, (3) between mortgagee and mortgagor, and {4) miscellaneous. Chapters II. and III. treat of the production of title deeds at law and in equity. In Chapter IV. the author considers the custody and production of title deeds on a sale, (i) as relates more particularly to the vendor, and (2) as relates more par- ticularly to the purchaser. Chapter V. treats of the non-production of title deeds ; Chapter VI. of the purchaser's right to the title deeds ; Chapter VII. of attested copies ; whilst Chapter VIII., which will prove very useful to conveyancers, deals with covenants for the production of deeds. There is an elaborate appendix containing precedents. " The literary execution of the work is good enough to invite quotation, but the volume is not large, and we content ourselves with recommending it to the profession."— Law Times. " A really good treatise on this subject must be essential to the .lawyer ; and this is what we have here. Mr. Copinger has supplied a much-felt want by the compilation of this volume We have not space to go into the details of the book ; it appears well arranged clearly written, and fully elaborated. With these few remarks we recommend this volume to our readers. It may be remarked that there is an appendix addet of the searches and inquiries which should be made on a purchxse, an 1 condudmg willi a selection of precedents of covenants for production of deeds."— La-v Journal. In Svo., 1875, price gj., cloth, foii]^j:s of leases And other forms relating to Land in Ireland ; with an Introduction and Note*. By John Henry Edge, Barrister-at-L.aw. 46 STEVENS & HAYNES, BELL YAKD, TEMPLE BAR. In One thick Volume, 2>vo., 1874, of nearly One Thousaiid Pages ^ price 42i'., strongly bo mid in Cloth, A MAaiSTERIAL & POLICE aUIDE : Being; tlje »)tatutc Hato, INCLUDING THE SESSION OF 1874, WITH NOTES AND REFERENCES TO THE MOST RECENTLY DECIDED CASES, RELATING TO THE PROCEDURE, JURISDICTION, and DUTIES of MAGISTRATES AND POLICE AUTHORITIES, IN THE METROPOLIS AND IN THE COUNTRY. With an Introduction showing the General Procedure before Magistrates both in Indictable and Summary Matters. BY HENRY C. GREENWOOD, stipendiary Magistrate /or the District of the Staffordshire Potteries, TEMPLE C.'' MARTIN, 0/ the Southwark Police Court. NOTICES OF THE WORK. LAW TIMES. " For the form of the work we have nothing but commendation. We may say we have here our ideal law book. It may be said to omit nothing which it ought to contain." SOLICITORS' JOURNAL. " This handsome volume aims at presenting a comprehensive magisterial handbook for the whole of England. The mode of arrangement seems to us excellent, and is well carried out. " As to the care with which the work has been executed, a somewhat minute exami- nation of three or four of the divisions enables us to speak on the whole favourably." MORNING POST. " Great pains have evidently been taken in every part of the work to ensure correct- ness ; and this quality, together with that of its great comprehensiveness, can scarcely fail to render this guide to procedure before magisterial and police authorities eminently acceptable to the many classes of persons to whom full and accurate information on the subject it deals with is often of the utmost importance." DAILY NEWS. " The Magisterial and Police Guide, by Mr. Henry Greenwood and Mr. Temple Martin, is a model work in its conciseness, and, so far as we have been able to test it, in completeness and accuracy. It ought to be in the hands of all who, as magistrates or otheiivise, have authority in matters 0/ folice." LIVERPOOL MERCURY. " Both to justices and practitioners desirous of obtaining a book of reference giving the present practice of the courts, this book will be found of great service — nay, almost invaluable." SATURDAY REVIEW. " Mr. Greenwood, stipendiary magistrate in the Staffordshire Potteries district, and Mr. Martin, of the Southwark Police Court, have produced a portly magisterial hand- book applicable to the whole of England. It contains all the statute law relating to the procedure, jurisdiction, and duties of magistrates and police authorities, with notes and references to recent decisions, and appears to be put together, as might be expected from the professional experience of the authors, in a thorough and business-like manner." MIDLAND COUNTIES HERALD. " This work is erninefitly practical, and supplies a real want. It plainly and concisely states the law on all points upoii which Magistrates are called upon to adjudicate, systematically arranged, so as to be easy of reference. It ought to find a place oti every fnstice^s table, and we cannot but think that its usefulness will speedily ensure for it as large a sale as its merits deserve." STEVENS & HAYNES, BELL YAED, TEMPLE BAE. 47 Just ready, Third Edition, in 8vo., price , clotli, THE ACTS RELATING TO PROBATE, LEGACY, AND SUCCESSION DUTIES. COMPRISING THE 36 GEO. III., Cap. 52; 45 GEO. III., Cap. 28; 55 GEO. III., Cap. 1S4 ; AND 16 & 17 VICT., Cap. 51 ; AN INTRODUCTION, COPIOUS NOTES, AND REFERENCES To all the Decided Cases in England, Scotland, and Ireland ; AN APPENDIX OP STATUTES, AND FULL INDEX. By ALFRED HANSON, OF THE MIDDLE TEMPLE, ESQ., BARRISTER-AT-LAW ; COMPTROLLER OF LEGACY AND SUCCESSION DUTIES. THIRD EDITION, INCORPORATING THE CASES TO MICHAELMAS TERM, 1876. Reviews of Second Edition. " It is the only complete book upon a subject of great importance, but which does not come within the regular course of professional study, and therefore requires to bo read up when a case having reference to it comes into the solicitor's office. " Mr. Hanson is peculiarly qualified to be the adviser at such a time. Hence a volume without a rival." — Law Times. " Since Mr. Hanson produced his first edition he has been appointed Comptroller of Legacy and Succession Duties. His book is in itself a most useful one ; its author knows every in and out of the subject, and has presented the whole in a form easily .and readily handled, and with good arrangement and clear exposition." — Solicitors' Jjurnal, 48 STEVENS & HAYNES, BELL YARD, TEMPLE BAB. GMTFITH'S PEAOTIOE OF THE SUPREME COURT OP JUDIOATUEE. In one volume, 8vo., 1875, price 20s., cloth, THE SUPREME COURT OF JUDICATURE ACTS, 1873 & 1875 : With the Rules, Orders, and Costs thereunder : edited with Copious Notes, References, and a very Full Index, and forming a complete Book of Practice under the above Acts. By William Downes Griffith, of the Inner Temple, Barrister-at-Law ; late Her Majesty's Attorney-General for the Colony of the Cape of Good Hope ; Author of " Griffith's Bankruptcy." T/w above bound in best basil leather i^s. Do. do. law calf 261. Reviews of Mr. W. Downes Grifath's Edition of the Judicature Acts. Mr. Griffith's notes on the rules are very volumi- nous, 'i'hus we have five pages on the decisions as to suing persons out of the jurisdiction, five pages on service of process, nine pages on misjoinder and nonjoinder of parties, three pages on demurrers, thirteen pages with a host of cited cases on dis- covery, twenty pages on production and inspection, three pages on notice of trial, and thirteen pages on abatement of actions and suits, by deatli, marriage, insolvency, &c. There is in these elaborate notes much matter of great value and interest. The I " Mr. Griffith, as we have already had occasion to acknowledge, has completely mastered the scope of the Acts. Hisanticipations of points likely to arise "Mr. Griffith is not a novice in legal literature. He attacked the very formidable subject of bank- ruptcy practice under the Act of 1861, in building up two large volumes on the basis of Archbold. In that work he showed capacity for collating' and arranging cases, and the I'ractice has proved of the greatest possible utility to bankruptcv practitioners. The same capacity which served him in dealing with bankruptcy practice has served him well in his treatment of the Judicature Acts. The industry and care which he has bestowed upon the index have produced a complete digest of the enactments. This index is by far the most exhaustive which we have met with, either separate or appended to a author carefully points out in what respect any given rule follows the old practice, or introduces any new elements. The index is rem/trkabte /or its unparalleled cofioustu-ss, and too much applause cannot he bcsto^ued on Mr. Grijfitli/orhis industry in this respect. We never before observed in any book an index of 146 paces, and those who use Mr. Griffith's bouk will highly appreciate this part of it. Neither can we fail to praise the type, paper, and general appearance of the work, which are all excellent." — La7v Journal. in practice cannot fail, in the necessary absence of iudicial decisions, to be of great value to the prac- tising lawyer." — Lazu .Magazine. treatise. A very good specimen of the work, too long however for quotation, is the note on ihe mode of service of a writ of summons (Order IX.). Another excellent piece of work is on ' Parties,' being an elaborate note to rule 13 of Order X\T. The whole law on the subject is discus.sed historically, and the note presents a valti.able rfsuinf. Perhaps, however, the mo^t remarkable part of the noies is to be found under the title 'Discovery and Inspection,' where Mr. Griffith gives us quite a treatise, citing numerous cases, and giving a clear in-ight into the law. We heartily congratulate Mr. Griffith upon the production of a very intelligent and ably exe- cuted edition of the .Acts and Orders." — La"M 'Times. " Mr. Griffith works out the practice very carefully." — Saturday Review. "Very much has been done in this book to promote the convenience of the reader. The type is admirably clear and pleasant ; the number of the section or rule is stated at the head of the margin in bold figures, rendering reference extremely easy : copious marginal notes have been appended to the rules as well as the .\cts ; and we observe that even to the forms in the appendices to the .\ct of last session there are given marginal references to rules conceived to bear upon them. And there is an index extending over 144 paees, so arrans^ed, iHoreozier, as to constitute a full analysis of the Acts and rules "Coming now to the notes, these ar» often lengthy, and in some cases — as for instance, on discovery under Order XXXI (p. 729), and on ch.ange of parties by death, &c. (p. 317), and' on parties generally (p. 181) — they really form small treatises or digests of cases. The other notes may be described in general as composed of statements of the object or effect of the section or rule under coMimenI ; references to its origin and to the former law, and criticisms on its wording or probable operation." — Solicitors' Journal. " Mr. Griffith's work, designed as a text book for the purposes of practice, comprises every essential that could render such a work simply invaluable. " As the result of our examination of the entire work, we can draw but one conclusion. It is a work which not only may be consulted with advantage in conjunction with other treatises, but which is entitled by its own solid merits to a position of recognised superiority in the library of every practising lawyer." — /risk Law Times. IUOKPON: PRINTKP by ■WH.LIAM CJ.OWKS and SOJJS, .OTAVFORD STKKET and PHAKIKO CKr>88. STEVENS AND HAYNES' LAW PUBLICATIONS. Juftt ready, in oiie volume, 8ro, price 18s. cJoth, THE TEACTICE BEFOEE THE EAILWAY COMMIS- SIOI^FKS UNDER THE REGULATION OF RAILAVAY ACTS, 1873 and 18/4 ; with^ t"he Amended General Orders of the Commissioners, Seliedule of Forms, and Table of Fees -. together with the Law of undue Preference, the I-aw of thy • 'on of the Railway Commissioners, Notes of- their Decisions and Orders ol Forms' of Applications, Answers and Replies; and an Arpenaix of >;;'-■•.- ^J J. 11. lUi-Fi'iiR Bi'.oWxNK, of the Middle Temple, Barnster-at-Law, and Registrar to the Railway Commissio ners. ^ In one volume, Svo, price 21s. cloth, A NEW LAW DICTIONARY, ^utr Jn^titute of tfce U)I)ole ilaU) ; EMBRACING FRENCH AND LATIN TERMS, AND REFERENCES TO THE AUTHORITIES, CASES, AND STATUTES. By Akchibalu Browk, M.A. Edni. and Oxnn., and l'..C.L. O-xon., of the Middle Temple, Barrister-at-Luw, Author " The Law'of Fixtures," " An;d v-is of Saviany's Obligations in Roman Law," &c. " For the purposes of working law^' more useful. "-T/w Lav>. " It is a handy book to have at one- "j In, aiic volume, 8i'0, of nearly lOoU payf^, price 42s. clofh, A MAGT^^'^^^'^^^ \^^T-» POLICE C.^tdf Being the s'talute Law i i its of M Authorities, illusi. ^ }^o ^^^K rr. GuEi'.NWoOD, Stip. 'trict-; and Ikm the Southwark Pol'- " We may say we have here our ideal law book. It may be said to oaut nothing which it ought to contain."— Xhk' Ti mcji. Kotv ready. Third Edition, in 8ro, fricc 21s., cloth, THE LAW OF COMPENSATION FOR LANDS, HOUSES, &c under the Lands Clauses, Railways Clauses Consolidation and Metropolitan Acts, The Artizan's Dwelling Act, 1875, &c., &c. With a Full Collectiou of Forms and P-- cedents. Third' Edition (much enlarged). By Eyre Lloyd, of the Inner Tern; Barrister-at-Law. III %vo. Third Edition, price 5s. cloth, THE MARRIED WOMEN'S PROPERTY ACT, 1870, and the Married Wonjen^s Property Act, 187" \— .l'n,.„t Act, 1874 : its r.,lf,{i,,ns to the Doctrine of Separate Use. With Ap] ■• Cases, ai J. T; GiMKKiTH. r,.A.. OxoM. of Li iir. .] i .'. 1: l.aw. THE rXILIGENCE, INCORPORATING the Ri -f the C(nn{TS OF THE FNTH KINGDOM and AMERICA. i>^ 'cate, of the Sc and of Lincoln's Inn, Barrister-tit- '. In Bvo, price 7s. Sd. cMh, THE LAW OF USAGES AND CUSTOMS : A PRACTICAL LAAV TRACT. By J. H, Balfour Browne, of the Middle Temple, Barrister-at-Iiaw, ]i> Railway Commissioners, Author of "The Law of Carriers," "The Mcdioa: of Insanity," &c. In Svo, Second Edition, price 21s. cloth, MAYNE'S TREATISE ON DAMAGES. Cujupnsiiig their Measure, the Mode in which they are Assessed and Reviewed, mu ^ ..i.....v-^ of Granting New Tj"wW/w4/'^« Law of Set-off. Secon '. Edition, by Lumley Smith, of the Inner TempfeVMHQiij-aOJSwLAW LIBRARY IX OF CALIFORNIA LOS AiVGELES UC SOUTHFRf: R[C.!0N;.. LIBRARY FACILITY SIEVENS AND HAYNES* AA 000 746 639 4 In 8t'0, "price os. ciom, T^^ •- TAW CONCEKNING THE REGl AND Deaths in P'xgland and M^ales, axd at Sea : being the whole Statute \M\- ii[ion the suh.ject ; tojfether with a List of Registration Fees and Charge?.- Kdit-' with copious Explaiintory Notes and References, and an elaborate Index, By Artii i.u.x- T', ry Elaborate and lixhaustiv' Tn.liv, See - us additional Cases, Statu &c. *u. Piiitii' liociiK, -.1 \ Inn, and William Ha/.i Middle" iiisters-at-Law, and ' ourt of Bankruptcy. Kov; readij, in 8vo, jiricr. -.).v. ciuuc, HALL^S ESSAY ON THE RIGHTS OF THE CROWN, and the Pkivilkoes of the Subject in the Sea Shokes of the Realm. Second Edition ri\'is('d and corrected, with extensive Annotations, and References to ' the ]a ' in England, Ireland, Scotland, and the United States. By Ijicn,.^, ...VELANi), of the Iniior Tenijdu, Barrister-at-Law. Together ' I .x|Piunu.A, . Miiaining : I. Lord Chief Justice Hale's "De'Jure Maris" II. ^e of Dickens V. Shaw. III. Mr. Serjeant Merewether's Speech. IV. Fo: \' the F)0;ud of Trade. :irl Edition, 8vo, 1876. Nearly ready. CHE PROBATE, LEGACY, AND SUCCESSION DUTn;.S ACTS; Comprising 30 ''" ■ ' ;''■'• ^■■' < 17 Vict. c. 51 ; witli sn )i' Statutes, Forms, Ti' Axsox, Esij., ( i.-! tnc OTily cnmp!' A TREATISE UPC) ■' EXTRADITION. With the Conventions upon the sui.jr-t .M.^nig (.riw.,n l-ngland and Foreign Nations, and the '^a.sp.'^ de; k rol., royal 8vo, price 30s. cloth, (JA«ES AAi> ui'iAiONS ON CONSTITi; \nd various points of ENGLISH JURISPRITDENCI'; collected iiocximents and other Sources, with NOTES. By Wili.ia.m . ■■.,•• • M, Hiding Counsel to the Secretary of State in Council of India, late bellow College, Cambridge. [Bour.d by Matthew Bell, Temp'o Work*, Cursi»or -