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 -LAW- 
 
 u 
 
 TEXT-BOOK SERIES," 
 
 PUBLISHED BY 
 
 The Blackstone Publishing Company, 
 
 19 S. Ninth St., Philadelphia, Pa. 
 
 SERIES OF 1887 NOW COMPLETE. 
 
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 6. Pollock on- Torts. 
 
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 The BLACKSTONE PUBLISHING COMPANY. 
 
 AGENTS W ANTED. 
 
 (2)
 
 A SELECTION OF 
 
 LEADING CASES IN THE 
 
 COMMON LAW 
 
 WITH NOTES. 
 
 FROM THE THIRD ENGLISH EDITION. 
 
 WALTER SHIRLEY SHIRLEY, M.P. 
 fit 
 
 BARRISTER- AT-LAW, OF THE INNER TEMPLE, AND NORTH-EASTERN CIRCUIT ; A0THORcOK' 
 
 "A SKETCH OF THE CRIMINAL LAW," "AN ELEMENTARY TREATISE ON 
 
 MAGISTERIAL LAW," ETC. 
 
 PHILADELPHIA : 
 
 THE BLACKSTONE PUBLISHING COMPANY. 
 
 1888.
 
 Entered according to the Acts of Congress, in the year 1888, by the Ei.ack- 
 
 stone Publishing Company, in the office of the Librarian of 
 
 Congress, at Washington, D. C. 
 
 r
 
 NOTE. 
 
 We suggest to our patrons that, to facilitate the labor of the 
 Judges and Reporters, they cite theTOP PAGING of books of 
 our SERIES, and add [TEXT BOOK SERIES.]— Editor. 
 
 740SOR
 
 PREFACE TO THE THIRD EDITION. 
 
 This edition has been prepared for the press with the greatest 
 care. Although no revolutionary changes have been introduced, 
 I have gone scrupulously through the whole book, not only tinker 
 ing and touching up the notes where required, but rewriting a 
 great deal; and, as the result, I cannot doubt that, if the book has 
 been useful before, it is likely to be far more so now. The tone of 
 flippancy and jocularity, modified to some extent in the second edi- 
 tion, has been almost discarded in this, so that the serious and 
 soberminded law student, who never can understand a joke, will 
 find little or nothing to distract his attention from the particular 
 rule or doctrine of law under consideration. 
 
 I have only to add the expression of my own personal gratifica- 
 tion at the continued and increasing popularity of this collection 
 of Leading Cases. In every part of England it is my pleasure to 
 meet young men who tell me that they have learnt all the law they 
 know out of my book, and that w r hat they have learnt out of it they 
 do not forget. It is a considerable source of pride and satisfaction 
 to me to be enabled in this way to assist the studies of the younger 
 members of my profession.
 
 vi PREFACE TO THE THIRD EDITION. 
 
 I have to thank my learned friends of the Inner Temple, Messrs. 
 
 C. M. Atkinson, E. H. Benn, George Elliott, and A. C. Travis, for 
 
 valuable assistance rendered in the preparation of this edition for 
 
 the press. 
 
 W. S. S. 
 
 2, Dr. Johnson's Buildings, 
 The Temple, E.G., 
 
 June. 1886.
 
 PREFACE TO THE SECOND EDITION. 
 
 The favorable reception given by Law Students and the 
 younger members of the Profession to the appearance of this 
 collection of Leading Cases has enabled me, within a com- 
 paratively short period, to correct any ascertainable errors of 
 the first edition, incorporate the recent changes in the law, re 
 write some of the notes, and, I trust, improve the book in its 
 form and arrangement. 
 
 It will be seen that (in spite of a good deal of sharp, though 
 not unkind, criticism) I have not thought proper altogether to 
 discard, though I have somewhat modified, the free style which 
 makes the book sui generis. The same reasons which induced 
 me to adopt it apply to its retention ; and it would be hazardous 
 to kick away the ladder by which the book has climbed thus far 
 into popularity. Possibly, however, it may some day be found 
 convenient to publish tico separate editions of this treatise ; — a 
 larger and more comprehensive work for practitioners, and a 
 smaller and more elementary one for students ; and in that case 
 everything in the shape of levity would, of course, be eliminated 
 from the former. 
 
 In the meantime, I ask my graver readers, if they find the 
 book sound in law, to condone the style for the sake of their less 
 serious brethren. For I have received many assurances from 
 Students, whom the book has helped to pass their examinations 
 with credit, that the lightness of style has been the means of 
 fixing legal principles firmly in their memories, and of giving
 
 Vlll PREFACE TO THE SECOND EDITION. 
 
 them a relish for the study of law, in a way that other books 
 failed to do ; and it is idle therefore to cavil at mere freedom of 
 expression. 
 
 I have to thank my friends of the Inner Temple, Mr. C. M. 
 Atkinson, Mr. George Elliott, and Mr. C. S. Hunter, and my 
 Cousin, Mr. Shirley Blackburne, for kind assistance given me in 
 the preparation of this edition for the press. 
 
 W. S. S. 
 
 6, Royal Crescent, Scarborough, 
 February, 1883.
 
 PREFACE TO THE FIRST EDITION. 
 
 The work now submitted to law students differs considerably from 
 other collections of leading cases. 
 
 In the first place, the number of cases is much larger. " Fifty 
 or sixty leading cases," says the late Mr. Samuel Warren, " thor- 
 oughly understood and distinctly recollected, will be found of in- 
 calculable value in practice; serving as so many sure landmarks 
 placed upon the trackless wilds of law. And why should not the 
 number be doubled f or even trebled f What pains can be too great 
 to secure such a result?" 
 
 My object has been to bring together and to elucidate the 150 
 cases of most general importance in the Common Law. And, how- 
 ever far short of that object I may have fallen, I think it will be 
 admitted that any student whose diligence enables him to master 
 their names and principles will have laid for himself a good founda- 
 tion of legal learning. 
 
 The present work differs also in style. I have adopted it as likely 
 to arrest the attention, aid the memory, and make the study of the 
 law less dry and repulsive. 
 
 " That I have written in a semi-humorous vein," says an eminent 
 authority, "shall need no apology, if thereby sound teaching wins 
 a hearing from the million. There is no particular virtue in being 
 seriously unreadable." 
 
 Moreover, now and then, in the stating of a case certain devia- 
 tions from strict accuracy may be discovered. Such deviations 
 (except, of course, where I may have been unfortunate enough to 
 fall into errors) have been made on the "reading made easy" 
 principle. For instance, I have treated nearly every case as if at
 
 X PREFACE TO THE FIRST EDITION. 
 
 nisi prius; deeming it undesirable to confuse the student, and 
 withdraw his attention from the true point and effect of the decision 
 by appeals, rules for new trials, &c. And the pleasing, if some- 
 what rare, spectacle is accordingly, presented of a successful liti- 
 gant getting the speedy justice he is entitled to. 
 
 It will be observed, too, that though the volume in which a case 
 may be found is always given, the page is not. My explanation of 
 this unusual proceeding is that I regard it of extreme importance 
 that a practitioner should have at command the exact volume in 
 which a leading case is to be found. To remember the exact page 
 also, would be knowledge too excellent and unattainable; a Macau- 
 ley or a Fuller might achieve it, but not an ordinary person But 
 by constantly seeing the reference, and taking a kind of mental 
 photograph of it, a student of average memory ought in a short 
 time to find that he knows exactly where an important case is re- 
 ported. 
 
 It is almost unnecessary to add that the work is put forward 
 simply as a Student's Manual — always remembering that a person 
 does not cease to be a student merely because he is called to the Bar, 
 or admitted a Solicitor. One of my objects (though, of course, not 
 the chief one) has been to act as a guide to that masterly and ex- 
 haustive work, Smith's Leading Cases. I have adopted nearly all 
 the cases which appear as leading cases in that collection, and have 
 sometimes even followed the lines of the notes. 
 
 I gratefully acknowledge help and valuable suggestions from 
 other members of the profession, and particularly from my learned 
 friends, Mr. C. M. Atkinson, of the Inner Temple and North- 
 Eastern Circuit, and Mr. Wilfred Allen, of the Inner Temple; and 
 trust my Leading Cases will prove useful to those for whom they 
 are intended. 
 
 W. S. S. 
 
 2, Dr. Jonxsox's Buildings, 
 3Iarch, 1880.
 
 LIST OF LEADING CASES. 
 
 PAGE 
 
 Acraman v. Moeeice, (as to when property passes on sale of goods) . . 202 
 
 ALDOUS v. CORNWELL, (alteration of written instruments) 158 
 
 Armory v. Delamieie, (importance of possession against wrong-doer) . 32!) 
 
 Arnold v. Poole, (corporations must generally contract under seal) . 17b' 
 
 Ashby v. White, (action always lies for infringement of a right) . . . 247 
 
 Atchinson v. Baker, (action for breach of promise of marriage) . . . 207 
 Baldly v. Parker, (contract for sale of a number of trifling articles 
 
 amounting in aggregate to value of £10, must be in writing) . . 2G 
 
 Baxter v. Portsmouth, (lunatic may sometimes contract) 174 
 
 Beaumont v. Reeve, (mere moral consideration will not support prom- 
 ise) 7 
 
 Behn v. Burness, ("now in port of Amsterdam " in charter-party, 
 
 held a warranty) 16!) 
 
 Bergheim v. Great Eastern Railway Company, (railway company 
 not responsible for luggage in traveling compartment under trav- 
 eller's own control) 59 
 
 Bickerdike v. Bollman, (notice of dishonour sometimes unnecessary) 154 
 
 Blower v. Great Western Railway Company, (animal's "proper 
 
 vice" excuses carrier) 51 
 
 Boydell v. Drummond, (separate documents containing contract can- 
 not be connected by oral evidence) 32 
 
 Brice v. Bannister, (assignment of chose in action) 225 
 
 Burkmire v. Darnell, ("debt, default, or miscarriage ") 12 
 
 Butterfield v. Forrester, (contributory negligence of plaintiff gen- 
 erally disentitles him to complain) 268 
 
 Calye'sCase, (as to the liabilities of innkeepers) 47 
 
 Capital and Counties Bank v. Henty, (defamation) 335 
 
 Carter v. Boehm, (concealment of material fact vitiates policy of insur- 
 ance) 187 
 
 Chasemore v. Richards, (damnum sine injuria not actionable) .... 247
 
 Xll LIST OF LEADING CASES. 
 
 PAGE 
 
 CLARKE ». Cuckfield Union, (corporations can sometimes contract 
 
 without seal) 170 
 
 Clayton v. Blakey, (effect of leases void under sees. 1 and 2 of Statute 
 
 of Frauds) 100 
 
 Coggs v. Bernard, (bailments; 48-- 
 
 COLLEN r. WEIGHT, (agent who had exceeded authority in granting 
 
 lease taken to have warranted that lie had authority) 88 
 
 Collins v. Blantern, (illegality) 122 
 
 COOKE ». Oxley. (proposal can be retracted any time before acceptance) 8 
 
 Corn foot v Fowke, (liability of principal for representations of agent) 77 
 
 Cowan ». Milboubne, (atheistical contracts illegal) 136 
 
 Cox v. Hickman, (participation in profits not conclusive evidence of 
 
 partnership) iy7 
 
 Cox v. Midland Railway Company, (implied authority of agents) 74 
 
 Crepps v. Durden, (conditions of bringing actions against magistrates) 348 
 
 Ceosby v. "Wads woeth, (growing grass " an interest in land ") . . . 23 
 
 Cumber v. Wane, (lesser sum cannot be pleaded in satisfaction of great- 
 er) r 298 
 
 Cutter v. Powell, (as to when plaintiff can sue on quantum meruit) 223 
 Dalby v. India and London Life Insurance Company, (life insur- 
 ance is not a contract of indemnity merely) 181 
 
 DAREELL v. TlBBETTS, (fire insurance contract of indemnity merely) . 184 
 
 DAVENPOET v. Thompson, (undisclosed principals) 80 
 
 DA VIES r. Mann, (contributory negligence does not disentitle if defend 
 ant by reasonable care could have averted consequences of plain- 
 tiff's negligence). 269 
 
 Denton v. Great Northern Railway Company, (responsibility of 
 
 railway company for not running advertised train) 63 
 
 DlDSBUEY v. THOMAS, (hearsay evidence) 363 
 
 DlGGLE v. HlGGS, (wagering contracts void, and stake may be recovered 
 
 from stakeholder) • Ill 
 
 DOVASTON v. Payne, (as to dedication and repair of highways) .... :;7!» 
 
 Dumpoe v. Symms, (waiver of forfeiture, &c.) 103 
 
 Egeeton v. Brown low, (public policy) 120 
 
 Elmore v. Stone, (acceptance under 17th section of Statute of Frauds) 27 
 
 Elwes v. Ma we, (as to tenant's right to remove fixtures) 97 
 
 FABRIGAS v. MOSTYN, (as to torts committed and contracts made abroad, 
 
 but sued on here) 384 
 
 Finch v. Brook, (production, unless dispensed with, essential to valid 
 
 tender) 235 
 
 Fletcher c. Rylands, (liabilities of persons who bring dangerous sub- 
 stances on their lands) .....' 254
 
 LIST OF LEADING CASES. xiii 
 
 PAGE 
 
 George v. Clagett, (set-off by purchasers from factors) - I 
 
 Goss r. Nugent, (written instrument cannot be varied, but maybe waived, 
 
 by parol) :;4 
 
 HADLEY v. Baxkxdale. (measure of damages in contract) 239 
 
 Harrison v. Bush, (privileged communications) 338 
 
 Hebdo.v f. West, (life insurance) 186 
 
 Hicham r. RlDGWAY, (declarations contrary to interest of deceased per- 
 sons admissible evidence) :;i;<) 
 
 HlLBERY v. Hatton, (innocent intention no defence in action for wrong- 
 ful conversion of goods) 332 
 
 HocHSTEE 1: De la Tour, (suing before day of performance has arrived) 213 
 Hopkins v. Tanqueray, (warranty must be part of the contract of sale) 163 
 
 Ixdermaur v. DAMES, (person on lawful business may maintain action 
 
 where trespasser or licensee could not) 27.~> 
 
 » 
 Irons v. Smallpiece, (delivery or deed necessary to gift) :J7:'> 
 
 Jolly v. Rees, (private arrangement unknown to tradesmen between hus- 
 band and wife may disable latter from pledging former's credit) . 71 
 
 Jones v. Just, (warranty of quality sometimes implied) 166 
 
 Jordan v. Norton, (proposal must be accepted in terms) 9 
 
 Keech r. HALL, (mortgagee may eject without notice tenant claiming 
 under lease from mortgagor granted after mortgage and behind 
 mortgagee's back) 106 
 
 KEMBLE v. Farren, (sum described by parties as liquidated damages may 
 
 be only a penalty) 244 
 
 Kingston, R. v. Duchess of, (estoppels) ::<)!) 
 
 Lampleigh v. Brathwait, (past consideration will support a promise if 
 
 moved by previous request) 4 
 
 Langridge v. Levy, (privity sometimes necessary to action for tort) . .315 
 
 Le Blanche v. London & North Western Railway Company, (late- 
 ness of trains; when one party to a contract fails to fulfill his part 
 of it, the other may perform it for himself and send in his bill; but 
 he must not perform it unreasonably or oppressively) 64 
 
 Lee v. Griffin, (Lord Tenterden's Act as to goods not in esse) 30 
 
 Lickbarrow v. Mason, (right of stoppage in transitu defeated by nego- 
 tiating bill of lading) '. . . '201 
 
 Limpus v. London General Omnibus Company, (master generally re- 
 sponsible for torts of servant committed in course of employment 
 and within scope of authority) 293 
 
 Lopus v. Chandelor, (warranties and representations) 160
 
 XIV LIST OF LEADING CASES. 
 
 PAGE 
 
 LOWE v. Peers, (contracts in restraint of marriage contrary to public pol- 
 icy and void) 133 
 
 Lr.MLEY v. Gye, (damage need not be legal and natural consequence of 
 
 tort) 359 
 
 Lynch v. Nurdin, (children can be guilty of contributory negligence) . . 273 
 
 MACKINNON v. Penson, (surveyor of highways may be liable for mis- 
 feasance, but not for non-feasance) 279 
 
 Manby v. Scott, (husband liable on wife's contracts on principles of 
 
 agency) G9 
 
 Marriott v. Hampton, (money paid under mistake of law, or by compul- 
 sion of legal proceedings, cannot generally be recovered) 209 
 
 Master v. Miller, (material alteration vitiates written instrument) . . 1.77 
 
 Mellors v. Shaw, (master employing incompetent workmen, or using de- 
 fective machinery, may be. responsible to servant hurt thereby in 
 course of service) 282 
 
 Merryweather v. NlXAN, (defendant mulcted in damages in action of 
 
 tort cannot sue co-defenddfet for contribution) 358 
 
 Miller v. Race, (bank-notes pass, like cash, on delivery) 150 
 
 Mitchel v. Reynolds, (contracts in total restraint of trade illegal) . . . 131 
 
 Montagu v. Benedict, (husband not liable for goods not necessaries sup- 
 plied to wife, unless affirmative proof of his having authorised con- 
 tract) 09 
 
 Morley r. Attencorough, (implied warranty of title) 1G4 
 
 Morley r. Bird, (joint tenancy) 116 
 
 Morritt v. North-Eastern Railway Company, (Carriers Act protects 
 
 carrier where goods are sent by mistake beyond their destination) . 56 
 
 Moss v. Gallimore, (mortgagee giving proper notice, entitled to rent due 
 
 from mortgagor's tenant admitted before the mortgage) 106 
 
 Mountstephen v. LAKEMAN, (guaranty is collateral undertaking to an- 
 swer for another person who remains primarily liable) 13 
 
 Nepean v. Doe, (when a man has not been heard of, by those who natur- 
 ally would have heard of him had he been alive, for seven years, a 
 presumption arises that be is dead)- 397 
 
 Nichols v. Marsland, (vis major may excuse what would otherwise be 
 
 an actionable tort) 254 
 
 Pasley v. Freeman, (fraud and deceitful representations) 312 
 
 Paterson »>. Gandasequi, (as to when the seller of goods may sue the 
 
 undisclosed principal, and when he must stand or fall by the agent) 79 
 
 Pearce r. Brooks, (fornicatory contracts illegal) 126 
 
 Peek p. North Staffordshire Railway Company, (as to what are 
 
 "just and reasonable" conditions within 17 & 18 Vict. c. 31, s. 7) . 52 
 
 Perryman v. Lister, (the action for malicious prosecution) 352
 
 LIST OF LEADING CASES. XV 
 
 PAGE 
 
 Peter v. Compton, (the words " not to be performed " insect. 4 of Statute 
 
 of Frauds mean "incapable of performance ") 25 
 
 Peters v. Fleming, ("necessaries" for infants arc those things which it 
 
 is reasonable that they should have") 171 
 
 Poulton v. London and South-Western Railway Company, (though 
 master is generally responsible for torts of servants committed in 
 course of duty, servant cannot be taken to have authority to do 
 what master could not have done himself ) 294 
 
 Price v. Torrington, (declarations in course of business of deceased 
 
 persons admissible evidence) 309 
 
 Priestley v. Fowler, (master not generally responsible to servant for 
 
 hurt sustained in service) 282 
 
 Quarman v. Burnett (person employing contractor not generally re- 
 sponsible for contractor's negligence) 290 
 
 Readhead v. Midland Railway Company, (carriers of passengers 
 
 bound to use the greatest care, but not insurers) 263 
 
 Reedie v. London and North-Western Railway Company, (the 
 
 liabilities of a person employing a contractor) 291 
 
 Rigge v. Bell, (effect of leases void under sects 1 and 2 of Statute of 
 
 Frauds) 100 
 
 Roberts v. Orchard, (notice of action) 350 
 
 Roe v. Tranmarr, (construction of written agreements) 237 
 
 Roux v. Salvador, (abandonment to underwriters) 189 
 
 Ryder v. Wombwell ("necessaries" for infants) 171 
 
 Scaramanga v. Stamp, (deviation) 192 
 
 Scarfe v. Morgan, (illegality of contracts made on Sunday ; lien) . . 141 
 
 Scott v. Avery, (illegality of contracts ousting jurisdiction of Law Courts) 128 
 
 Scott v. Shepherd, ( consequential damages) 259 
 
 Seaton v. Benedict, (responsibility of husband on wife's contracts) . 70 
 
 Semayne v. Gresham, (every Englishman's house not his castle) . . . 325 
 
 Sharp v. Powell (proximate cause) 260 
 
 Simpson v. Hartopp, (goods privileged from distress) 92 
 
 Smith v. Marrable, (implied warranty of fitness on letting furnished 
 
 house) 114 
 
 Smith v. Thackerah, (right to support from neighbouring land) . . . 303 
 
 Smout v. Ilberry, (responsibility of husband on wife's contracts) . . 71 
 
 Soltau v. De Held, (nuisances) 306 
 
 Spencer v. Clark, (covenants running with the land) 110
 
 XVi LIST OF LEADING CASES. 
 
 PAGE 
 
 Tanner v. Smart, (acknowledgement saving the Statute of Limiations) 228 
 
 TABLING v. Baxter, (when property passes on sale of goods) 201 
 
 Taylor v. Caldwell, (impossible contracts) 147 
 
 TEMPEST v. Fizgerald, ( acceptance under 29 Car. II. c. 3, s. 17) ... 28 
 
 Terry v. Hutchinson, (seduction) 309 
 
 Thomas v. Rhymney Railway Company, (responsibility of company 
 
 issuing through ticket for accident happening off their line) . . . 287 
 
 TiioKNBOROW v. Whitacre, (adequacy of consideration not required; . 1 
 
 Todd v. Flight, (nuisances from ruinous premises) 298 
 
 Turner v. Mason, (wrongful dismissal) 214 
 
 TWYNE'S CASE, (gifts defrauding creditors) 219 
 
 Tvrie v. Fletcher, (return of premium) 190 
 
 Vaughan v. Taff Vale Railway Company, (negligent keeping of fire) 300 
 
 Vatjx v. Newman, (trespass ab initio) 322 
 
 Wain v. Warlters, (consideration of guaranty) 10 
 
 Waite v. North-Eastern Railway Company, (contrihutary negli- 
 gence ; identification) 271 
 
 WAUGH r. Carver, (how far sharing in the profits is evidence of part- 
 nership) 190 
 
 Wells v. Abrahams, (tort amounting to felony) 341 
 
 WENMAN ». Ash, (husband and wife two persons for some purposes) . 390 
 Whitcher v. Hall, (alteration oi terms between creditor and debtor 
 
 releases surety) 18 
 
 Wiiitcombe v. Whiting, (acknowledgements by joint contractors) . . 231 
 
 White Cross Wire Company v. Savill, (average) 194 
 
 WlGGLESWORTH v. Dallison, (evidence of custom to qualify written 
 
 contract) 38 
 
 Wilson v. Brett, (though gratuitous bailee is bound to slight dilgence 
 
 only, he must use special skill if he possesses it) 41 
 
 Wood r. Leadbitter, (mere licence is revocable at pleasure) 118 
 
 Yates v. Jack, (ancient lights) 250 
 
 Young v. Grote, (estopped by negligence) 400
 
 SHIRLEY'S LEADING CASES. 
 
 CONTRACTS. 
 
 1. Thornborow v. Whitacre. — Consideration need not he adequate. 
 
 2. Lampleigh v. Brathwait. — Past consideration sometimes sufficient. 
 
 3. Beaumont v. Eeeve. — Past seduction no consideration. 
 
 4. Cooke v. Oxley. — Proposal not binding before acceptance. 
 
 5. Jordan v. Norton. — Parties must contract ad idem. 
 
 6. Burkmire v. Darnell. \ Person for whom any one is surety is 
 
 7. Mountstephen v. Lakeman. j himself primarily liable. 
 
 8. Wain v. Warlters. — Consideration of guarantee must exist but need not 
 
 appear in document. 
 
 9. Whitcher v. Hall. — Alteration of terms between creditor aud debtor 
 
 releases surety. 
 
 10. Crosby v. Wadsworth. — Growing grass an '' interest in land." 
 
 11. Peter v. Compton. — " Not to be performed " = incapable of performance. 
 
 12. Baldey v. Parker. — If total comes to £10, within 17th sect. 
 
 13. Elmore v. Stone. \ Acceptance under 17th sect, may be construc- 
 
 14. Tempest v. Fitzgerald, j tive. 
 
 15. Lee v. Griffin. — Goods to be made or delivered at future time brought 
 
 within Statute of Frauds by Lord Tenterden's Act. 
 
 16. Boydell v. Drtjmmond. — Separate documents containing contract can- 
 
 not be connected by oral evidence. 
 
 17. Goss v. Nugent. — Written instrument cannot be varied by parol evidence. 
 
 18. Wigglesworth v. Dallison. — In contractis tacite insunt quse sunt moris et 
 
 consuetudinis. 
 
 19. Coggs v. Bernard. \ Gratuitous bailees responsible for gross negligence. 
 
 20. Wilson v. Brett, j Person having skill must use it. 
 
 21. Calye's Case. — Liabilities of innkeepers at common law and under Act 
 
 of 1862. 
 
 22. Blower v. G. W. Ey. Co. — Animal's "proper vice" excuses carrier. 
 
 23. Peek v. N. Staff. Ey. Co. — As to "just and reasonable " conditions. 
 
 24. Morritt v. N. E. Ey. Co. — Carriers Act protects carrier when goods are 
 
 sent by mistake beyond their destination. 
 
 25. Bergheim v. G. E. Ey. Co. — Eailway company not responsible for lug- 
 
 gage in travelling compartment. R ibilit of railway compa . 
 
 26. Denton v. G. N EY. Co. V f * rmmi ^ late ^ S3 
 
 27. Le Blanche v. L. & N. W Ey. Co. { f trai 
 
 28. Manby v. Scott. ' ' 
 
 29. Montagu v. Benedict. The principle on which a husband is respon- 
 
 30. Seaton v. Benedict. [• sible for his wife's debts is that she is his 
 
 31. Jolly -v. Eees. t agent. 
 
 32. Smout v. Ilberry. J 
 
 33. Cox v. Midland Counties Ey. Co. — Extent of agent's authority. 
 
 34. Cornfoot v. Fowke. — Liability of principal for representations of agent. 
 
 35. Paterson v. Gandasequi. \ As to when disclosed and undisclosed princi- 
 
 36. Davenport v. Thomson, j pals can be sued and when not. 
 
 37. George v. Clagett. — Set-off against principal by purchaser from factor. 
 
 38. Collen v. Wright. — Agent exceeding authority taken to have warranted. 
 
 39. Simpson v. Hartopp. — Things being used are privileged from distress. 
 
 40. Elwes v. Maw. — Eight to remove agricultural fixtures — Act of 1883. 
 
 41. Eigge v. Bell. \ Lease may be void for some purposes yet good for 
 
 42. Clayton v. Blakey. j others. 
 
 43. Dumpor r. Symms. — As to waiver of and relief against forfeiture, &c. 
 
 44. Keech v. Hall. \ Tenants let in by mortgagor before and after mort- 
 
 45. Moss v. Gallimore. J gage respectively. 
 2 COMMON LAW.
 
 XV111 SHIRLEY'S LEADING CASES. 
 
 46. Spencer v. Clark. — Covenants running with the land. 
 
 47. Smith v. Marrable. — Lessor of furnished house impliedly covenants that 
 
 . it is fit for habitation. 
 
 48. Morley v. Bird. — Bight of survivorship is an incident of joint tenancy. 
 
 49. Wood v. Leadbitter. — Mere licence is revocable. 
 
 50. Egerton v. Beownlow. — Contracts violating public policy are void. 
 
 51. Collins v. Blantern. — Illegality vitiates even contracts under seal. 
 
 52. Pearce v. Brooks. — Immoral contracts illegal. 
 
 53. Scott ?•. Avery. — As to contracts ousting jurisdiction of law courts. 
 
 54. Mitchell v. Reynolds. — Contracts in total restraint of trade illegal. 
 
 55. Lowe v. Peers. — Contracts in restraint of marriage bad. 
 
 56. Cowan v. Milbourne. — Atheistical contracts illegal. 
 
 57. Scarfe v. Morgan. — Contracts made on Sunday sometimes illegal. 
 
 58. Diggle v. Higgs. — Wagering contracts void, and stake maybe recovered 
 
 from stakeholder. 
 
 59. Taylor v. Caldwell. — As to impossible contracts. 
 
 60. Miller v. Race. — Bank-notes, &c, pass, like cash, on delivery. 
 
 61. Bickerdike v. Bollman. — Notice of dishonour is sometimes, but very 
 
 rarely, unnecessary. 
 
 62. Master v. Miller, \ The material alteration of a written instrument 
 
 63. Aldous v. Cornwell. J vitiates it. 
 
 64. Lopus v. Chandelor. — Warranties and representations. 
 
 65. Hopkins v. Tanqueray. — Warranty must be part of contract of sale. 
 
 66. Morley v. Attenborough. — Whether any implied warranty of title. 
 
 67. Jones v. Just. — Warranty of quality sometimes implied. 
 
 68. Behn v. Burness. — "Now in port of Amsterdam " in charter-party, held 
 a warranty. 
 
 Necessaries " for infants are those things which 
 
 6Q Pftfrs 7' Ft eminc- f ' ' Necessaries ' ' for infants are those things which 
 by. meters i. t LEMING j essential to the reasonable enjoyment 
 
 70. Ryder v. Wombwell. ,.,-,. ,■ ._ v* ■ . j- J J 
 
 t of life, according to their station. 
 
 71. Baxter v. Portsmouth. — Lunatic may be liable on executed contract. 
 
 72. Arnold v. Poole! "I Corporations must generally con- 
 
 73. Clarke v. The Cuckfield Union, j tract under their common seal. 
 74 MTTT.r.r.M ,< Wttbt f Assured cannot recover more than amount of 
 /4. mebdon i. west i insurable interest, but life insurance not 
 
 75. Dalby r. India, &c, Co. j ft contract of indemnity merely . 
 
 76. Darrell v. Tibbitts. — Fire insurance contract of indemnity merely. 
 
 77. Carter v. Boehm. — Concealment of material fact vitiates policy of insur- 
 
 ance. 
 
 78. Roux v. Salvador. — Assured claiming for constructive total loss must 
 
 abandon. 
 
 79. Tyrie v. Fletcher. — No return of premium where risk has once com- 
 
 menced. 
 
 80. Scaramanga r. Stamp. — Ship may deviate to save life but not property. 
 
 81. Whitecross Wire Co. v. Savill. — Loss arising from throwing goods 
 
 overboard to save ship rateably adjusted between owners of the goods 
 on board. 
 
 82. Waugh v. Carver \ Participation in profits not conclusive evidence of 
 
 83. Cox v. Hickman. J partnership. 
 
 85: IcSmTn ";. m™ce. } As to - hen *™^ p asses on sale of ^ oods - 
 
 86. Lickbarrow v. Mason. — Right of stoppage in transitu defeated by ef- 
 
 fective negotiation of bill of lading. 
 
 87. Atchinson v. Baker. — Defences to action for breach of promise to marry. 
 
 88. Marriott?'. Hampton. — Money paid under compulsion of legal proceed- 
 
 ings, or through mistaking the law, cannot be recovered. , 
 
 89. Hochster v. De La Tour. — Suing before day of performance. 
 
 90. Turner v. Mason.- — Valid grounds for dismissing servant. 
 
 91. Twyne's Case. — Gifts defrauding creditors are void. 
 
 92. Cutter v. Powell. — When plaintiff can sue on quantum meruit.
 
 SHIRLEY'S LEADING CAKES. XIX 
 
 93. Brice v. Bannister. — Assignment of chose in action allowed by Judica- 
 
 ture Act. 
 
 94. Tanner v. Smart. — Acknowledgments taking debts out of Statute of 
 
 Limitations. 
 
 95. Whitcomb v. Whiting. — Effect of acknowledgment by joint contractor. 
 
 96. Cumber v. Wane. — Payment of lesser sum cannot be pleaded in satisfac- 
 
 tion of greater. 
 
 97. Finch v. Brook. — Production, unless dispensed with, essential to valid 
 
 tender. 
 
 98. Roe v. Tranmarr. — Construction of written contracts. 
 
 99. Hadley v. Baxendale. — Measure of damages in contract. 
 
 100. Kemble v. Farren. — Whether penalty or liquidated damages, is a ques- 
 tion of intention. 
 
 TORTS. 
 
 101. Ashby v. White. • \ Injuria sine damno is actionable, but not 
 
 102. Chasemore v. Richards. J damnum sine injuria. 
 
 103. Yates v. Jack. — Owner of ancient lights entitled to protection irrespec- 
 
 tively of particular use to which premises may be at time put, 
 
 104. Fletcher v. Rylands. \ Liabilities of persons bringing dangerous sub- 
 
 105. Nichols v. Marsland. J stances on to their land. 
 
 106. Scott v. Shepherd. ) A man will generally be taken to contemplate the 
 
 107. Sharp f. Powell, J consequences of his tort. 
 
 108. Readhead v. Midland Ry. Co. — Carriers of passengers not insurers, but 
 
 must take very great care of them. 
 
 109. Butterfield v. Forrester. \ As to when contributory negligence dis- 
 
 110. Da vies v. Mann. j entitles and when not. 
 
 111. Waite v. N. E. Ry. Co. — Innocent person may sometimes be bound by 
 
 contributory negligence of someone else. 
 
 112. Lynch v. Nurdin — As to contributory negligence of children. 
 
 113. Indermaur v. Dames. — Persons on lawful business can maintain action 
 
 for injury received on defendant's premises. 
 
 114. McKinnon v. Penson. — No action allowed against county surveyor for 
 
 inj ury received through bridge being out of repair. 
 
 115. Priestley v. Fowler. \ Master not generally responsible to servant for 
 
 116. Mellors v. Shaw. j hurt sustained in service. 
 
 117. Thomas v. Rhmyney Ry. Co. — Company issuing ticket responsible for 
 
 injury off their line through other company's negligence. 
 
 118. Quarman v. Burnett. "I Person employing contractor not generally 
 
 119. Reedie v. L. & N. W. Ry. Co. J responsible for contractor's negligence 
 
 .,„„ T T rs ■ ^ /-( f Master generally responsible for torts 
 
 120. Limpus v. L Gen^ Omnibus Co. f J^ J mmi ? ted in course of 
 
 121. Poulton v. L. & S. W. Ry. Co. \ employment . 
 
 122. Todd v. Flight. — Landlord letting premises in ruinous condition liable 
 
 for nuisance arising thereby. 
 
 123. Vaugiian v. Taff Vale Ry. Co. — As to liability of railway companies 
 
 for damage caused by sparks. 
 
 124. Smith v. Thackerah. — As to right of support from neighbouring land. 
 1:25. Soltau v. De Held. — Public nuisance is sometimes actionable. 
 
 126. Terry v. Hutchinson. — Proof of serrvice required in action of seduction. 
 
 127. Pasley v. Freeman. — False and fraudulent representation generally ac- 
 
 tionable. 
 
 128. Vaux v. Newman. — Trespass ab initio. 
 
 129. Semayne v. Gresham. — ''Every Englishman's house is his castle." 
 
 130. Armory v. Delamirie. — Possession nine-tenths of the law. 
 
 131. Hilbery v. Hatton. — Innocent person may be guilty of conversion. 
 
 132. Capital and Counties Bank v. Henty. — When many good interpreta- 
 
 tions of document put forward as libellous and only one bad one, it 
 ought not to be hastily condemned.
 
 XX SHIRLEY'S LEADING CASES. 
 
 133. Harrison v. Bush. — Speech or writing the result of exercise of right or 
 
 discharge of duty privileged though not true. 
 
 134. Wells v. Abrahams. As to the difficulty of the case where a tort is also 
 
 a felony. 
 
 135. Langridge v. Levy. — Privity sometimes essential to maintain action for 
 
 tort. 
 
 136. Crepps v. Durden. — Actions against magistrates and cumulative penal- 
 
 ties. 
 
 137. Roberts v. Orchard. — Notice of action sometimes necessary. 
 
 138. Perryman v. Lister. — Four things to be proved in action for malicious 
 
 prosecution. 
 
 139. Merryweather v. Nixan. — No contribution between defendants in tort. 
 
 140. Lumley v. Gye. — The measure of damages is looser in tort than in con- 
 
 tract. 
 
 MISCELLANEOUS CASES. 
 
 141. Doe d. Didsbury v. Thomas. — Hearsay evidence sometimes allowed. 
 
 v> t ("Declarations of deceased persons in course of 
 
 144. I'RICE v. iorringtoj*. 1 business or contrary to interest, sometimes 
 
 143. HIGHAM V. RlDGWAY. |_ allowed \ n evidenc / 
 
 144. Irons v. Smallpiece. — Delivery or deed necessary to gift. 
 
 145. Dov aston v. Payne. — As to dedication, repair, and extinguishment of 
 
 highways. 
 
 146. Fabrigas v Mostyn. — Tort committed abroad may be sued on here. 
 
 147. Wenman v. Ash. — Husband and wife two persons for many purposes, 
 
 even at common law. 
 
 148. Nepean v. Doe. — Presumption of death after seven years' absence. 
 
 15a Young If Grote. } Esto PP el ma ^ be b ? record ' b ^ v deed > or b * v conduct. 
 
 Equity Cases more particularly bearing on the Common Law. 
 
 1. Pusey v. Pusey. — Specific delivery of ancient horn decreed. 
 
 2. Lester v. Foxcroft. — As to part performance and parol agreements. 
 
 3. Woollam v. Hearn. — Parol evidence cannot vary written contract. 
 
 4. Ward v. Turner. — Delivery essential to donatio mortis causd. 
 
 5. Richardson v. Langridge. — As to difference between yearly tenancies 
 
 and tenancies at will. 
 
 6. Lake v. Gibson. — Partners purchasing land are tenants in common. 
 
 7. Russel v. Russel. — Deposit of title deeds is an equitable mortgage. 
 
 8. Thornborough v. Baker. — Mortgagee's executor entitled to mortgage 
 
 money. 
 
 9. Row v. Dawson. — Chose in action assignable in equity. 
 
 10. Dering v. Winchelsea. — Sureties bound by different instruments liable 
 
 to contribution. 
 
 11. Rees v . Berrington. — Surety released by creditor giving time to debtor. 
 
 12. Fox v. Bishop of Chester. — As to simoniacal contracts. 
 
 13. Sloman v. Walter. — Penalty for collateral object relieved against. 
 
 14. Landsdowne v. Landsdowne. — Mistake of law sometimes relieved 
 
 against. 
 
 15. Stapilton v. Stapilton. — Compromise of doubtful right binding. 
 
 16. Cuddee v. Rutter. — No specific performance when damages would af- 
 
 ford compensation. 
 
 17. Scott v. Tyler. — Conditions unduly restraining marriage void. 
 
 18. Chesterfield v. Janseen. — Bargains with expectant heirs may be set 
 
 aside. 
 
 19. Tyrringham's Case. — Common appendant differs from common appur- 
 
 tenant in being connected with arable lauds and in other ways. 
 
 20. Earl of Oxford's Case. — As to principles on which equity will inter- 
 
 fere to restrain proceedings at law.
 
 LEADING CASES IN THE COMMON LAW. 
 
 Adequacy of Consideration not required. 
 
 THORNBOROW v. WHIT ACRE. [1.] 
 
 [2 Ld. Raym. 1164 (1705).] 
 
 "Farmer Whitacre," said the cunning Thornborow, 
 " let us strike a bargain. If I pay you a five pound 
 note down now, will you give me 2 rye corns next Mon- 
 day, 4 on Monday week, 8 on Monday fortnight, and so 
 on, — doubling it every Monday, — for a year." Whitacre 
 jumped at it; five pounds never were earned so easily. 
 So the thing was settled. But when our yokel friend 
 came to calculate how much rye he should have to de- 
 liver, he found that it came to more than tvas grown 
 in a year in all England. 
 
 Thornborow, however, brought his action and suc- 
 ceeded; for the court said that "though the contract 
 was a foolish one, it would hold in law." There was a 
 consideration, and as for the other point raised for the 
 defendant, that it was an impossible contract, it was 
 only impossible in respect of the defendant's ability. 
 
 Every promise (when the contract is not by deed) requires a Necessity 
 consideration to support it. Nuda pactio non parit obligationem. ' or con 7 
 But law courts are satisfied with the existence of a consideration, 
 and do not trouble themselves about its adequacy. No matter how Adequacy 
 slight may be the benefit to the promisor, or the detriment to the not re- 
 promisee (whichever the consideration may happen to be), it is quired.
 
 ADEQUACY OF CONSIDERATION. 
 
 Slight acts 
 which may 
 be con- 
 sideration. 
 
 Shadwell v. 
 Shadwell. 
 
 Considera- 
 tion of bills 
 and notes. 
 
 sufficient to support the promise. In one case a man allowed a 
 friend to take some boilers and weigh them. Afterwards he 
 brought an action against him for not keeping his promise to re- 
 store them, after weighing, in as good condition as they were be- 
 fore. For this promise it was held that the mere allowing to 
 weigh was a sufficient consideration (a). So, in another case, it 
 was held that the surrender of the possession of a worthless docu- 
 ment was a sufficient consideration (b). Forbearance to sue in the 
 case of a doubtful claim is also a sufficient consideration (c). ' And 
 so is labour, though unsuccessful (d). But for a man to agree to 
 do something he is already bound to do canuot be a consideration. 
 If, however, the agreement is for the man to do something slightly 
 in excess of his duty, it will be enough (e). 
 
 A curious case on this branch of the law is Shadwell v. Shad- 
 well (/), where an amiable old gentleman wrote to his nephew — 
 
 "My dear L., 
 
 " I am glad to hear of your intended marriage with E. N., and, as 
 I promised to assist you at starting, I am hajypy to tell you that I will 
 pay you £150 yearly during my life, and until your annual income, 
 derived from your profession of a Chancery barrister, shall amount to 
 600 guineas, of which your own admission will be the only evidence 1 
 shall receive or require. 
 
 " Your ever affectionate uncle, 
 
 li C. S." 
 
 In an action which it became necessary to bring against the old 
 man's executors it was held that this letter amounted to a request 
 to his nephew to marry E. N., and that his promise therefore 
 had a consideration, and was binding. 
 
 The student should also refer to the recent case of Creed ». Hen- 
 derson, (ff) where the promise of a Mr. Hudson to give £20,000 
 to the Jubilee Fund of the Congregational Union was held not 
 binding. Mr. Hudson, after paying some instalments of the mo- 
 ney, had died, and this was an unsuccessful assault on his estate. 
 
 In the case of bills of exchange and promissory notes a conside- 
 ration is presumed till the contrary is shown. The Bills of Ex- 
 change Act, 1882 (45 & 46 Vict, c. 61), deals with the considera- 
 tion ior a bill in the following sections: — 
 
 "27. (1.) Valuable consideration for a bill may be constitued 
 hy- 
 
 («) Any consideration sufficient to support a simple contract; 
 
 (a) Bainbridge v. Firmstone, 
 8 Ad. & E. 743. 
 
 (b) Brooks v. Haigh, 10 Ad. 
 & E. 323. 
 
 (c) Longridge v. Dorville, 5 
 B. & Aid. 117, and see the equi- 
 ty leading cases Stajnlton v. Sta- 
 pilton, and Gordon v. Gordon, p. 
 410, on family arrangements. 
 
 (d) Lampleighx.Brathwait, p. 4 
 
 (e) England v. Davidson, 11 
 
 A. & E. 856, and Hartley v. 
 Ponsonbv, .7 E. & B. 872. 
 
 (/) !) C. B. X. S., 159; and 
 see Bell v. Bassett, 52 L. J., Q. 
 
 B. D., 22; and Harston v. Har- 
 vey, 1 C. & E., 404. 
 
 (/) 54 L. J., Ch. 811.
 
 ADEQUACY OF CONSIDERATION. i 
 
 (6.) An antecedent debt or liability. Such a debtor liability is 
 deemed valuable consideration whether the bill is payable 
 on demand or at a future time. 
 
 (2.) Where value has at any time been given for a bill, the 
 holder is deemed to be a holder for value as regards the acceptor, 
 and all parties to the bill who became parties prior to such time. 
 
 (3.) Where the holder of a bill has a lien on it, arising either Bills of Ex- 
 from contract or by implication of law, he is deemed to be a holder change Act, 
 for value to the extent of the sum for which he has a lien. loo.-. 
 
 28. (1.) An accommodation party to a bill is a person who has 
 signed a bill as drawer, acceptor, or indorser, without receiving 
 value therefor, and for the purpose of lending his name to some 
 other person. 
 
 (2.) An accommodation party is liable on the bill to a holder for 
 value; and it is immaterial whether, when such holder took the 
 bill, he knew such party to be an accommodation party or not. 
 
 29. (1.) A holder in due course is a holder who has taken a bill, 
 complete and regular on the face of it, under the following con- 
 ditions; namely, 
 
 (a.) That he became the holder of it before it was overdue, and 
 without notice that it had been previously dishonoured, if 
 such was the fact: 
 
 (b.) That he took the bill in good faith and for value, and that 
 at the time the bill was negotiated to him he had no notice 
 of any defect in the title of the person who negotiated it. 
 
 (2.) In particular the title of a person who negotiates a bill is 
 defective within the meaning of this Act when he obtained the 
 bill, or the acceptance thereof, by fraud, duress, or force and fear, 
 or other unlawful means, or for an illegal consideration, or when 
 he negotiates it in breach of faith, or under such circumstances 
 as amount to a fraud. 
 
 (3.) A holder (whether for value or not), who derives his title 
 to a bill through a holder in due course, and who is not himself 
 a party to any fraud or illegality affecting it, has all the rights of 
 that holder in due course as regards the acceptor and all parties 
 to the bill prior to that holder. 
 
 30. (1.) Every party whose signature appears on a bill isprimd 
 facie deemed to have become a party thereto for value. 
 
 (2.) Every holder of a bill isprimd facie deemed to be a holder 
 in due course; but if in an action on a bill it is admitted orproved 
 that the acceptance, issue, 'or subsequent negotiation of the bill 
 is affected with fraud, duress, or force and fear, or illegality, the 
 burden of proof is shifted, unless and until the holder proves 
 that, subsequent to the alleged fraud or illegality, value has in 
 good faith been given for the bill."
 
 ADEQUACY OF CONSIDERATION. 
 
 Inadequacy 
 may suggest 
 fraud. 
 
 Stranger to 
 considera- 
 tion. 
 
 Failure of 
 considera- 
 tion. 
 
 The case of Stott v. Fairlarnb (</), and Currie v. Misa (h), should 
 be referred to with regard to an antecedent debt or liability as 
 consideration for a promissory note. Where there exists a debtor 
 liability in praesenti, payable in future, and a state of things «x- 
 ist which entitles the debtor to make payment at once, the giving 
 of a promissory note is a conditional payment, and is not with- 
 out consideration. 
 
 Although, as has been said above, it is all very well in theory 
 that it does not matter what the consideration is, provided there is 
 one, yet, if the inadequacy is very striking indeed, the presump- 
 tion of fraud arises, and a defendant may, on that ground, dis- 
 pute his liability. The clown Whitacre might have done this. 
 As it was, he simply demurred to the declaration, and the issue 
 of fraud was not raised. 
 
 A stranger to the consideration cannot sue upon a contract, al- 
 though it may have been entered into expressly for his benefit, 
 and he may be a near relation of the person for whom the consid- 
 eration moved (('). 
 
 Money paid away can sometimes be recovered back on the ground 
 of failure of consideration^. g., money paid for the services of another 
 which are performed so badly as to be quite useless to the employer 
 (k). But unless the consideration be severable.and the price appor- 
 tionable accordingly (7), the failure must be total, and not merely 
 pa rtial. A man not long ago apprenticed his son to a watchmaker, 
 and paid a heavy premium. In a year's time the watchmaker died, 
 but it was held that not a farthing of the premium could be recov- 
 ered, because the lad had got a year's teaching outof the deceased, 
 and therefore the failure of consideration was only partial (m). 
 
 The subject of impossible contracts is treated of under Taylor 
 v. Caldwell, p. 147. 
 
 Past Consideration to support promise must be 
 moved by previous request. 
 
 [2.] LAMPLEIG-H v. BRATHWAIT. 
 
 [Hob. 105 (1613).] 
 
 Brathwait, having committed a murder, requested 
 Lampleigh to take certain journeys and use all his in- 
 
 fo) 49 L. T. N. S. 525. 
 
 ('//) L. R. 10 Ex. 153. 
 
 (i) Tweddle v. Atkinson, 1 B. 
 & S. 393, 
 
 (k) Bostock v. Jardine, 3 H. & 54 Ch. 478 
 C. 700. 
 
 (I) Devaux v. Conolly, 8 C. B. 
 640. 
 
 (m) Whincup v. Hughes, L. R. 
 6 C. P. 78; Ferns v. Carr, L. J.
 
 PAST CONSIDERATION. j 
 
 fluence with a view to a pardon. After the journeys 
 had been taken and the services rendered, Brathwait 
 promised, as a mark of his gratitude, to give his friend 
 £100. It was held that this promise was binding, not- 
 withstanding that it had been made in consideration of 
 services rendered in the past. The defendant had re- 
 quested plaintiff to do what he had done, and therefore 
 his doing it could not be looked upon as a mere volun- 
 tary courtesy. 
 
 Services rendered in the past, however great, are not generally Pagt consid- 
 a sufficient consideration to support a promise. If a plaintiff, eration. 
 suing on a warranty, were to say in his statement of claim that 
 "in consideration that he (the plaintiff) had bought a horse of the 
 defendant, the defendant promised that it was sound," such a 
 pleading might be demurred to. No sufficient consideration 
 would appear for the defendant's illegal promise (n). 
 
 But a past consideration will support a promise when it con- 
 sists of services rendered by the plaintiff at the defendant's re- 
 quest. 
 
 This request (Brathwait's for instance) is generally express; Request., 
 the promisor has actually asked the promisee to do the service. 
 But sometimes the law has to imply the request, e. g. — 
 
 1. Where the ■plaintiff has been compelled to do ivhat the defendant Compulsion 
 was legally bound to do. of promisee. 
 
 Not content with presuming that the defendant requested the 
 plaintiff to settle for him, the law here goes on to presume that, 
 in consideration of that settlement, the defendant promised the 
 plaintiff to indemnify him. Both request and promise are im- 
 plied. The acceptor of a bill of exchange must pay it when due; 
 he is primarily liable on it. If he does not pay it, the holder 
 may sue one of the indorsers and make him pay it. In such a 
 case the law presumes that the acceptor asked the indorser to 
 pay it, and presumes farther that the acceptor subsequently 
 promised to reimburse him (o). And whenever a surety is called 
 onto pay his principal's debt, the law presumes (1) that the 
 principal asked him to pay it,and (2) that he went on to promise 
 indemnification. So, too, in a case where the plaintiff, a carrier, 
 having by mistake delivered some goods to the defendant, who 
 wrongfully appropriated them, was obliged to pay damages to 
 the proper consignee, it was held that he could recover the 
 amount against the appropriator (p). The receipt of the goods 
 by the defendant must be considered to have been equivalent to 
 
 0) Roscorla v. Thomas, 3 Q. ford, L. J. 54 Q. B. 305. 
 
 B. 234. (p) Brown v. Hodgson, 4 
 (o) Pownal v. Ferrard, 6 B. & Taunt. 189. 
 
 C. 439 ; Edmunds v. Walling-
 
 PAST CONSIDERATION. 
 
 Kindness of 
 promisee. 
 
 Promisor 
 taking ben- 
 efit. 
 
 Continuing 
 considera- 
 tion. 
 
 his saying, " If you (the carrier) pay the true owner (as you may 
 be compelled to do) for the goods, I will reimburse you " (q). 
 
 As to when a surety is justified in resisting payment on be- 
 half of the debtor, the question seems to be, What would a reason- 
 able man have done under similar circumstances in a cause entirely his 
 own ? Would he have defended the action or not ? (>•) " No per- 
 son," said Lord Denman once, " has a right to inflame his own 
 account agafhst another by incurring additional expense in the 
 unrighteous resistance to an action he cannot defend " (s). 
 
 A distinction is to be observed between compulsion by law and 
 compulsion by agreement. If it was merely by agreement that 
 the defendant was bound to do what the plaintiff has been com- 
 pelled to do, the plaintiff must sue him on the special agreement, 
 and not on implied assumpsit. Thus, in one case, a tenant by 
 written agreement engaged to pay certain taxes which by statute 
 were due from the landlord. The tenant made default, and the 
 landlord, being obliged to pay, sued him for the amount as 
 money paid to his use. But, as was pointed out by the court, 
 the plaintiff's payment had relieved the defendant from no lia- 
 bility but what arose from the contract between them. The 
 taxes remained due by the default of the defendant, and this 
 would give the plaintiff a remedy on the agreement, but the 
 amount was paid by the plaintiff to one who had no claim upon 
 the defendant, and therefore not to his use (t). 
 
 2. Where the promisee, has voluntarily done what the promisor was 
 legally compellable to do, and the latter in consideration thereof ex- 
 pressly promises. 
 
 Jones owes his tailor £50, and Brown, with the good nature 
 for which he is proverbial, pays it for him, whereupon Jones 
 promises to repay him the money. Here it must be noticed, it 
 is only the request that is implied (u). 
 
 3. Where the promisor had adopted the benefit of the consideration. 
 
 Here, too, both request and promise are presumed. If a trades- 
 man sends me a quantity of things which I did not order, but 
 have no objection to keep, the law presumes (1) that I asked him 
 to send them, and (2) that I promised to pay for them. The 
 maxim omnis ratihabitio retrotrahitur et mandato priori sequiparatur 
 applies (a;). 
 
 It may be noticed here that a continuing consideration, that is, 
 one executed in part but which still continues, may also be sufficient 
 to support a promise ; e.g. where the defendant, having become 
 a tenant of the plaintiff, promised the plaintiff that he would, 
 
 (q) See per cur. in Spencer v. (I) Spencer v. Parry, 3 A. & 
 
 Parry, infra. E. 331. 
 
 (r) Tindall v. Bell, 11 M. & («) Wing v. Milh'l B. & Aid. 
 
 W. 228. 104. 
 
 (s) Short v. Kallowav, 11 A. (a;) Bird v. Brown, 4 Ex. 798. 
 & E. 28.
 
 MORAL CONSIDERATION. 
 
 during the term of his tenancy, manage the farm demised to him 
 in a husband-like manner (y). 
 
 Moral Consideration insufficient. 
 
 BEAUMONT v. REEVE. [3.] 
 
 [8 Q. B. 483 (1846).] 
 
 In consideration of cohabitation during the preced- 
 ing five years, a man promised to pay his late mistress 
 an annuity of £60 a year. In an action which the lady 
 brought for arrears, it was held that there was no legal 
 consideration for the promise. 
 
 The student must clearly understand that it was not because 
 the contract was illegal that it was held to be void, but simply Contract not 
 because there was no consideration for Reeve's promise; so that if lUe ga.l- 
 the contract had been under seal (when considerations are neces- 
 sary) it would had been binding on him. Future cohabitation, 
 however, would be an illegal consideration, and would vitiate 
 even a contract under seal (z). 
 
 But though a merely moral obligation will not support a prom- Moral consid- 
 ise, a moral obligation which ivas once a legal one, and would be eration when 
 so still but for the intervention of some stature or positive rule of sufficient, 
 law, will (a). A promise, for instance, to pay a debt barred by 
 the Statute of Limitations is binding. A bankrupt, however, 
 who has obtained his discharge cannot, except on a new consid- 
 eration (6), make a binding promise to pay debts from which the 
 Bankruptcy Acts have released him. 
 
 A parent, it may be mentioned, is not under any obligation, Father's lia- 
 other than moral, to pay debts incurred by his child (c). Very bility. 
 slight circumstances, however, will raise a presumption of au- 
 thority. "People are very apt to imagine," said Maule J., 
 once (d), " that a son stands in this respect upon the same foot- 
 ing as a wife. But this is not so. If it be asked ' Is then the 
 
 (y) Powley v. Walker, 5 T. Adney, 3 B. & P. 249. 
 
 R. 373, and Massey v. Goodall, (6) Jakeman ?>. Cook, 4 Ex. 
 
 17 Q. B. 310. Div. 26, distinguishing Heather 
 
 (z) See Pearce v. Brooks, p. v. AVebb, 2 C. P. D. 1. 
 
 119; and re Vallance, Val lance (c) Mortimore v. Wright, 6 M. 
 
 v. Blagden, L. R. 26 Ch. D. & W. 482. 
 
 353. (rf) Shelton v. Springett, 11 
 
 (a) See note to Wennall v. C. B. 452.
 
 8 MORAL CONSIDERATION PROPOSALS. 
 
 son to be left to starve ? ' the answer is, he must apply to the parish, 
 and they will compel the father, if of ability, to pay for his son's 
 support. ' ' 
 Barristers. -A- barrister's services as an advocate are supposed to be honor- 
 
 ary, and therefore he can neither bring an action for his fees nor 
 make an express contract with his client in respect of them (e). 
 But an express contract will be good when the strict relation of 
 counsel and client does not exist between the contracting parties, 
 e. g., when a barrister acts as arbitrator or returning officer (/) j 
 and possibly an express contract with a client as to non-litigious 
 business would be upheld. Conveyancers and special pleaders 
 may sue for their fees ; and so may doctors under 21 & 22 Vict. 
 c. 90. As to unqualified persons practising medicine, see Davies 
 v. Makuna, 29 Ch. D. 596. 
 
 Proposal may be retracted before Acceptance. 
 
 [4.] 
 
 COOKE v. OXLEY. 
 [3 T. R. 653 (1790).] 
 
 Oxley having a quantity of tobacco on hand proposed 
 to Cooke to sell him 266 hogsheads of it. Cooke liked 
 the looks of the offer, but not being quite able to make 
 up his mind on the subject,asked to be allowed till four 
 o'clock to decide ; and Oxley consented to this. But 
 after Cooke had gone away to think it over, Oxley al- 
 tered his mind and resolved not to let Cooke have his 
 tobacco. 
 
 This was an action by Cooke for non delivery of the 
 tobacco : but he did not succeed, because it was held 
 that, as the agreement was not binding on Cooke till 
 four o'clock, there was no consideration for Oxley's 
 promise, which therefore could be retracted with impu- 
 nity. 
 
 It is lo be observed that if Cooke had given Oxley sixpence for 
 
 P d'dera keeping the offer open, or if he had agreed to pay a higher price 
 
 tion for pro- f° r the tobacco in consequence, there would have been a consid- 
 
 posal. eration for Oxley's promise, and he would have been bound by 
 
 it. The case was followed in Routledge v. Grant (g), (where it 
 
 was held that defendant having offered to buy a house in St. 
 
 (e) Kennedy v. Broun, 13 C. (/) Egan v. Kensington 
 
 B., N. S., 677, and see Robert- Union, 3 Q. B. 935, n. 
 
 son v. Macdonogh, 14 Cox C. C. (g) 4 Bing. 653. 
 469.
 
 PROPOSALS — MUTUALITY. 9 
 
 James's Street, and to give plaintiff six weeks for a definite an- 
 swer, he might at any time during the' six weeks, and before it 
 was accepted, withdraw his offer), and it may be taken to be 
 clear law that a mere proposal may be revoked at any time before ac- 
 ceptanee. It is on this principle that at an auction a bidding can Biddings at 
 be retracted any time before the hammer goes down (/*). Till auctions, 
 then there has been no acceptance of the bidder's proposal. The 
 revocation of a proposal, however, to be effective, must be com- 
 municated to the other party before acceptance. Thus, "an offer of Contract by 
 a contract sent by letter cannot be withdrawn by merely posting letter. 
 a subsequent letter which does not, in the ordinary course of the 
 post, arrive until after the first letter has been received, and an- 
 swered " (i). In such a case the contract is complete the moment 
 the letter accepting the offer is posted, even though it never reaches its 
 destination (k). As to the acceptance of an offer sent by telegram, 
 see Quenerduaine v. Cole, 32 W. C. R. 185. 
 
 An action can be maintained for a reward offered in an adver- Contract bv 
 tisement by any person who has fulfilled the conditions therein advertise- 
 prescribed. The leading case on the subject is Williams v. Car- ment. 
 wardine (I), where the defendant had caused a handbill to be 
 published to the effect that whoever would give such information 
 as should lead to the discovery and conviction of the murderer of 
 one Walter Carwardine should receive a reward of £20. In an 
 action by a woman against the person who had offered the re- 
 ward, it was held that she was entitled to succeed, although the 
 jury expressly found that she had not been induced to give the 
 information by the offer of the reward, but by other motives. 
 " There was a contract," said Parke, J., " with any person who 
 performed the condition mentioned in the advertisement." 
 
 Importance of Mutuality. 
 
 JORDAN v. NORTON. 
 [4M. &W. 161 (1838).] 
 
 Farmer Norton wrote to Farmer Jordan offering to 
 buy a particular mare if the latter would warrant her 
 "sound and quiet in harness.'''' Farmer Jordan wrote 
 
 (h) Payne v. Cave, 3 T. R. {k) Harris's Case, L. R. 7 Ch. 
 
 148, and see Warlow v. Harri- 587, and Dunlop v. Higgins, 1 
 
 son, 1 E. & E. 295. H. L. 381. 
 
 (i) Byrne v. Van. Tienhoven, (I) 4 B. & Ad. 621. See also 
 
 5 C. P. D. 344, and Stevenson Denton v. G. N. By. Co., p. 60. 
 v. McLean, 5 Q. B. D. 
 
 [5.]
 
 10 
 
 MUTUALITY. 
 
 back warranting her " sound and quiet in double har- 
 ness" but saying he had never put her in single har- 
 ness. The mare was taken to Norton's by an agent, 
 who exceeded his authority (and whose act was imme- 
 diately repudiated) and then turned out to be unsound. 
 This was Farmer Jordan's action for the price of the 
 mare, and the real question was whether or not there 
 was a complete contract. This question was decided in 
 the negative. " The correspondence," said Parke, B., 
 "amounts altogether merely to this: that the defend- 
 ant agrees to give twenty guineas for the mare, if there 
 is a warranty of her being sound and quiet in harness 
 generally, but to that the plaintiff has not assented. 
 The parties have never contracted in writing ad idem." 
 
 "Good "bar- 
 ley and 
 "fine" bar- 
 ley. 
 
 Contract 
 sometimes 
 
 binding on 
 one party 
 only. 
 
 It takes two to make a contract, and those two must have 
 agreeing minds. That being so, an offer must be assented to in 
 the precise terms in which it is made. Jordan v. Norton is an excel- 
 lent illustration of this. So is Hutchison v. Bowker (m), where, 
 it having been shown that in the corn trade there was a distinc- 
 tion between "good" barley and "fine" barley, there was held 
 to be no binding contract between a person who offered to sell 
 " good " barley and one who wrote back, " we accept your offer, 
 expecting you to give us fine barley and full weight." So, too, if 
 there is an offer of a house, and the answer is, "I decide to take 
 the house, if you and my agent, Mr. So and So, can agree upon the 
 terms; if not, write to me," there is no final agreement (n). But 
 it has been held that although in the written acceptance of a 
 tender there may be an intimation that a more formal document 
 will be afterwards prepared, yet the parties may be bound to the 
 terms of the tender and acceptance (o). 
 
 The contract may be binding on one party but not on the 
 other; e.g. on the party contracting with an infant but not on the 
 infant himself (p) ; on the party who has signed a contract within 
 the Statute of Frauds but not on the party who has not signed (q). 
 So, a person whose tender to supply stores to a railway company 
 "in such quantities as the company's storekeeper might order 
 
 ) 5M.&W. 535. 
 
 Stanleys. Dowdeswell, L. 
 R. IOC. P. 102; and see Hussey 
 v. Home-Payne, 8 Ch. Div. 670; 
 Harvey v. Barnard's Inn, 50 L. 
 J. Ch. 750; and Preston v. Luck, 
 L. R. 27 Ch. D. 497. 
 
 (o) Lewis v. Brass, 3 Q. B. D. 
 667, distinguishing Rossiter v. 
 Miller, 5 Ch. D. 648. 
 
 ( p) Holt v. Ward. 2 Strange, 
 937. 
 
 (q) Laythoarp v. Brian t, 2 
 Bing. N. C. 743.
 
 MUTUALITY. 11 
 
 from time to time," is accepted may be bound to supply though 
 the company are not bound to order (r). 
 
 Contracts, it is to be remembered, may be implied as well as ex- implied con- 
 pressed. An implied contract is one which the law, on principles tracts, 
 of reason and justice, presumes. If, for instance, a man avails 
 
 himself of the benefit of services done for him without his author- 
 
 « 
 
 ity, the law may supply the formal words of contract and require 
 him to pay an adequate compensation (s). 
 
 We have nothing in our law quite corresponding to the quasi- Salvage. 
 contracts of the Roman lawyers {I). Salvage, however, is not far 
 off. Salvage is the compensation which owners must make to 
 those who by skill, enterprise and risk (u), have rescued their prop- 
 erty from impending perils of the sea, or from the power of an ene- 
 my (x). The Court of Admiralty has jurisdiction over all claims 
 to salvage. But cases below a certain amount and of inferior im- 
 portance may' be tried by county court judges or justices of the 
 peace (y). 
 
 Salvors are never entitled to more than a moiety, and, if they A moiety, 
 have entered into an agreement with the owners as to the amount . 
 to be paid, they must be content to claim under that agreement, 
 which will generally be enforced, although a hard bargain for the 
 rescued. Passengers and crew are not generally entitled to sal- 
 vage. Nor are pilots. Exceptional circumstances and services, Pilots and 
 however, may make a difference. "In order to entitle a pilot to passengers, 
 salvage reward," said Brett, L. J., in the recent case of Akerblom 
 v. Price (z), "he must not only shew that the ship was in some 
 sense in distress, but that she was in such distress as to be in dan- 
 ger of being lost, and such as to call upon him to run such un- 
 usual danger, or incur such unusual responsibility, or exercise 
 such unusual skill, or perform such an unusual kind of service, as 
 to make it unfair and unjust that he should be paid otherwise 
 than upon the terms of salvage reward." 
 
 Wilful or criminal misconduct of salvors may work an entire Misconduct 
 forfeiture of salvage ; and mere misconduct not criminal (e. g., of salvors, 
 violent and overbearing conduct) will operate to induce the court 
 to diminish the amount payable (a). 
 
 It is to be observed that to found an action for salvage it is es- 
 sential that something more than human lite should be saved. 
 
 (r) G. N. Ry. Co. v. Witham, the subject are (as to civil sal- 
 
 L. R. !) C. P. 16. vage) 17 & 18 Vict, c. 104 and 
 
 (s) See Landless v. Wilson, 8 (as to military salvage) 27 &28 
 
 C. of S. Cas. 289 (Sc.) Vict. c. 25 (The Naval Prize 
 
 (I) "Quasi ex contractu teneri Act, 1864). 
 videntur," Just. Inst. Lib. 3, (?/) See, as to jurisdiction of 
 
 Tit. 27. justices, the recent case of The 
 
 («) See Aitchison v. Lohre, 4 Mac, 51 L. J., P. D. & A., 81. 
 App. Ca. 755. (z) 7 Q. B. D. 135, 
 
 (x) The principal Statutes on (a) The Marie, 7 P. D. 203.
 
 12 MUTUALITY — DEBT, DEFAULT, OR MISCARRIAGE. 
 
 If no property is saved, there can be no action. The case of The 
 Rempor (b), brings this point out very clearly. 
 
 In a most meritorious case ol salvage where a steamship which 
 had got aground on the shore of the Red Sea, ninety-five miles 
 from Suez, in such a position that without help she must before 
 many hours had elapsed have been lost with all hands on board 
 her, was towed off the shore and to within a few miles of Suez by 
 another steamship, the court, on a value of £62,000, awarded the 
 salvors £6,000 (c). 
 
 In The Sunniside (d), it was held that in an action of salvage 
 evidence of the loss of earnings by, and of the costs of repairing 
 damage done to the salving vessel in consequence of rendering 
 salvage services is admissible. But these sums are to be regarded 
 as elements for consideration in estimating the amount of the 
 salvage award, and are not be considered as fixed amounts to be 
 awarded to the salvors. 
 
 See also the recent cases of The Livietta, 8 Prob. Div. 24 ; The 
 Yan Yean, 8 Prob. Div. 147, and The Cheerful (where the rescu- 
 ing vessel had done a great deal of work, but not much good), 
 " 11 P. D. 3 
 
 Debt, Default, or Miscarriage. 
 
 [6«] BTTRKMIRE v. DARNELL. 
 
 [6 Mod. 248 (1704).] 
 
 "My friend Lightfinger wants a horse; will you lend 
 him yours ? " said Darnell, meeting Burkmire one day 
 in 1700. "Yes," replied Burkmire, " if you will be re- 
 sponsible for his letting me have it safely back again." 
 " Certainly I will," replied Darnell emphatically. 
 
 On the faith of this collateral undertaking, Burkmire 
 lent Lightfinger the horse. It was not returned; so he 
 sued Darnell as surety. This, however, did him no good, 
 because he found that he ought to have taken Darnell's 
 promise in writing in accordance with the 4th section 
 of the Statute of Frauds (e). 
 
 (b) 8 Prob. Div. 115. (d) 8 P. D. 137. 
 
 (c) The Lancaster, 8 Prob. (e) 29 Car. 2, c. 3. 
 Div. 65.
 
 DEBT, DEFAULT, OR MISCARRIAGE. 13 
 
 MOUNTSTEPHEN «J! LAKEMAN. [7.] 
 
 [L. R. 5 Q. B. 613, and 7 H. L. 17 (1870).] 
 
 A builder was employed by the Brixham Board of 
 Health to make a main sewer for thein. He got his 
 WDrk finished, and the Board, in the usual peremptory 
 manner of local authorities, gave notice to the neighbour- 
 ing householders that they must connect the drains of 
 their houses with the main sewer, or the Board would 
 do it for them at their expense. 
 
 The householders displayed the slackness common on 
 such occasions; and Mr. Lakeman, the chairman of the 
 Board, happening to meet the builder in the street a few 
 days afterwards, the following conversation took place : — 
 "Well, Mountstephen," said Lakeman, "you've done 
 the main sewer very nicely for us; would you have any 
 objection to making the connections too ?" " Certainly 
 not, Sir; if you or the Board will order the work, or be- 
 come responsible for the payment." " Well then" said 
 Lakeman, "go and do it; I ivill see you are paid" 
 
 Mountstephen, therefore, made the connections, the 
 Board's surveyor superintending the progress of the 
 work, and by and by he sent in his account to the Board, 
 debiting them with the account. The Board, however, 
 refused to pay, saying they had not authorized the work. 
 Mountstephen, therefore, brought an action against Lake- 
 man, and it was held that Lakemarts icords icere evi- 
 dence to sustain a claim against him personally, and 
 that they did not constitute a promise to pay the debt of 
 " another." 
 
 The test as to whether or not any undertaking for another Who is pri- 
 should have heen in writing, is this: — Does that other, after the tin- niarily lia- 
 dcrtaking has been made for him, remain primarily liable'/ If (like " 
 the man who went off with the horse) he does, the undertaking 
 cannot be sued on unless it is in writing; if (like the Brixham 
 Board) he does not, it is binding, though not in writing. If I go 
 with you to a tailor's, and say to the tailor, " Make this gentle- 
 man a pair of trousers, and if he dosenH pay you, I will;" in this case 
 3 COMMON LAW.
 
 14 DEBT, DEFAULT, OR MISCARRIAGE. 
 
 • you clearly remain primarily liable, and I cannot be successfully 
 sued as your surety, because my promise is not in writing. But 
 supposing, when we go into the shop, I say, '" Make this gentle- 
 man a pair of trousers, and put them down to me, " here you are 
 not primarily liable, and therefore the 4th section of the Statute 
 of Frauds does not require my promise to be in writing. 
 
 Extinction of ^o, t°°> ^ t ^ ie en ~ ec t 0I " the undertaking is to extinguish another 
 debt. person's debt, so that, though up to that time he has been liable, 
 
 he remains so no longer, the undertaking is binding, though not 
 in writing. If, for instance, under the old debtor laws, when the 
 effect of a creditor's liberating a debtor, whom he had taken in 
 execution, was to release the debt, Weakraan promised to pay the 
 amount of Hardup's debt to Holdfast, if Holdfast would release 
 him from arrest ; this promise was not within the statute, because the 
 debt was gone by the discharge of the debtor out of custody, and 
 Weakman remained solely liable (/). 
 
 So, too, if goods are furnished to a married woman under a con- 
 tract not binding on her separate estate or (not being necessaries) 
 to an infant at the defendant's request, the defendant's under- 
 taking to pay for them is not collateral, because the married 
 woman or infant is not primarily liable (g). 
 
 Keat r Tern- Wh en the undertaking has been by word of mouth, it is for the 
 pl e jury to say whether or not the person for whose benefit the promise 
 
 has been made is primarily liable: and this is a question of fact 
 which, depending as it does on all the circumstances of the case, 
 it is sometimes extremely difficult to decide. On this point a case 
 that may usefully be compared with Mount Stephen v. Lakeman is 
 Keate v. Temple, where a Portsmouth tailor tried unsuccessfully 
 to make a lieutenant in the navy pay for a quantity of coats sup- 
 plied to his crew, the defendant having said, "I will see you paid 
 at the pay -table" (A). Eyre, C.J., in delivering the judgment of 
 thecourt, said, "There is one consideration, independent of every- 
 thing else, which, weighs so strongly with me. that I should wish 
 this evidence to be once more submitted to a jury. The sum re- 
 covered is £576 Is. 8d., and this against a lieutenant in the navy: 
 a sum so large that it goes a great way towards satisfying my 
 mind that it never could have been in the contemplation of the 
 defendant to make himselt liable, or of the plaintiff to furnish 
 the goods on his credit to so large an amount . . . From the 
 nature of the case it is apparent that the men were to pay in the 
 first instance. . . . The question is, whether the plain- 
 tiff did not in fact rely on the power of the officer over 
 the fund, out of which the men's wages were to be paid, and did 
 
 (/) Goodman v. Chase, 1 B. (g) Harris v. Huntback, 1 
 & Aid, 297 : and see Bird v. Bun. 373. 
 Gammon, 3 Bing. X. C. 883. {h) 1 Bos. & P. 158.
 
 DEBT, DEFAULT, OR MISCARRIAGE. 15 
 
 not prefer giving credit to that fund rather than to the lieutenant, who, 
 if we are to judge of him by others in the same situation, was not 
 likely to be able to raise so large a sum." 
 
 It has been held that the undertaking of a del credere agent, j) e i crc ^ ere 
 who guarantees the purchaser's solvency, is not within the statute, agent, 
 though the undertaking may result in a liability to pay the debt 
 of another, that is not the immediate object for which the con- 
 sideration is given (i) 
 
 The undertaking, to be within the statute, must be given to the Promise to 
 creditor. The leading case on this subject is Eastwood v. Kenyon debtor not 
 (k) where the defendant promised the plaintiff to see to the set- ^ 1 7 11 , n 
 tlement of a debt which the latter owed to a third person. The 
 promise was held to be binding, thought not in writing. So, in 
 another case, a man promised a bailiff, that, if he would not ar- 
 rest a relati ve of the former's for non-payment of a judgment debt, 
 he would pay the money himself. This promise, also, was held 
 not to require writing because not made to the original creditor(Z). 
 
 Before a guaranty can become binding on the guarantor it must Guaranty 
 be accepted by the person to whom it is offered. A man once must ® e 
 wrote to some publishers at Derby the following letter: — 
 
 " Doncaster, July 5Ui, 1833. 
 
 "Gentlemen, 
 
 " Mr. France informs me that you are about publishing 
 an arithmetic for him and another person, and I have no objection to 
 being answerable as far as £50. For my reference, apply to 3Iessrs. 
 Brooke & Co., of this place. 
 
 " I am, Gentlemen, your most obedient servant, 
 
 u Geo. Tinkler, 
 " Witness to Mr. Tinkler, 
 
 ' ' J. Brooke. 
 ' To Messrs. Mozley & Son, Derby.'''' 
 
 Mozley & Son vouchsafed no reply to this letter, but proceed- 
 ed to publish the arithmetic. It was held in an action which 
 they afterwards brought against Tinkler, that they could not 
 treat his letter as a guaranty, because they had never accepted it (m). 
 
 It is to be observed that the words of the statute ("debt, de- Torts. 
 fault or miscarriage") do not refer exclusively to contracts. Accord- 
 ingly, if my friend Jones wrongfully takes Brown's horse and in- 
 jures it, and I then promise Brown to pay the damage if he will, 
 not take proceedings against Jones, I am not bound unless I 
 promise in writing (n). 
 
 (i) Couturier v. Hastie, 8 Ex. v. Cresswell, 10 Ad. & E. 453. 
 
 56. (m) Mozley v. Tinkler, 1 C. 
 
 (k) 11 Ad. & E. 438. M. & R. 692; and see M'lver v. 
 
 (I) Reader v. Kingham, 13 C. Richardson, 1 M. & S. 557. 
 
 B. N. S. 344; and see Thomas v. (n) Kirkham v. Marter, 2 B. 
 
 Cook, 8 B. & C. 728; butsee also & Aid. 613. 
 the doubtful decision of Green
 
 16 
 
 THE MBMORANDUM OR NOTE IN WRITING. 
 
 TJie Memorandum or Note in Writing. 
 
 [8.] 
 
 Considera- 
 tion need 
 not appear. 
 
 The memo- 
 randum or 
 note in 
 writing. 
 
 WAIN v. WARLTERS. 
 [5 East, 10 (1804).] 
 
 Mr. Warlters was decidedly a fortunate litigant. He 
 had a friend named Hall, who became indebted to Messrs. 
 Wain & Co. to the extent of £56, and with no particular 
 means of payment. To extricate this friend from his 
 difficulties Warlters sat down and wrote out the following 
 collateral security: — 
 
 "Messrs. tVain & Co., 
 
 " I will engage to pay you by half -past four this 
 day £56 and expenses on bill that amount on Hall. 
 (Signed) Johnathan Warlters. 
 
 "No. 2, Cornhill, April 30th, 1803:' 
 
 Hall, of course, did not pay the money. So Wain & 
 Co. sued Warlters on his guaranty. But the document 
 was held to be mere waste paper, as no consideration for 
 Warlters promise to pay the £56 zvas expressed in it. 
 
 The Statute of Frauds requires that " the agreement " shall be 
 in writing; and obviously the consideration is as much a part of the 
 agreement as the promise. But though Wain v. Warlters is there- 
 fore a perfectly correct interpretation of the statute, the law on 
 the subject (so far as regards guaranties) has been changed by the 
 Mercantile Law Amendment Act of 1857 (o). Guarantors were 
 always wriggling out of their engagements (as Warlters did) by 
 technical defences, and, to put a stop to such dishonesty, it was 
 enacted that, provided a consideration did in fact exist, it need not 
 be put into the document, but might be proved by oral evidence. 
 The promise, however, must still be in writing just as much as 
 before (p). 
 
 Wain v. Warlters is generally considered the leading case on 
 the "memorandum or note in writing" spoken of in the Statute of 
 Frauds. It is necessary that this memorandum should have been 
 
 o) 19 & 20 Vict. c. 97, s. 3. 
 
 p) Holmes v. Mitchell, 7 C. B. N. S. 361.
 
 THE MEMORANDUM OR NOTE IN WRITING. 17 
 
 made before the commencement of the action (q). It need not be Before action 
 very precise in its terms, the principle being that it is just such a 
 memorandum as merchants in the hurry of business might be supposed 
 to make. It is necessary, however, that the names of both parties, Name or de- 
 or, at all events, a clear description of them should appear (r) scription. 
 The terms also must be stated, e.g., the price, if settled (s). The 
 subject matter of a contract of sale need not be described very pre- Terms. 
 cisely, parol evidence being admissible for the purpose of identi- Subject mat- 
 fication. Thus, "the property in Cable Street" (t), "the house in ^ er - 
 Newport" (u), and "the land bought of Mr. Peters" (a;), have 
 been held to be sufficient descriptions. A memorandum may be 
 sufficient although addressed to a third party (y), and even though 
 repudiating a contract (z). 
 
 The signature may come in any part of the document, even at Signature, 
 the top, as "/, James Crockford, agree to sell" (a). But it must 
 govern every part of the instrument (b). It may be by initkils 
 (probably) or mark (even though the person can write (c), and it 
 may be printed or stamped (d). But there must be something in 
 the nature of a signature. A letter beginning "My dear Robert" 
 and ending with the words, u Do me the justice to believe me the most 
 affectionate of mothers," without the writer's name appearing in 
 it, was held insufficient (e). "It is not enough," said the court, 
 "that the party may be identified. He is required to sign. And 
 after you have completely identified, still the question remains, 
 whether he has signed or not." A telegram is a sufficient (/) 
 memorandum. The signature required is that of "the party to 
 be charged" only, so that the party who has not signed, and would 
 not be bound himself, can enforce the contract against the party 
 who has signed (g). A signed proposal accepted verbally will 
 satisfy the statute (h). The memorandum need not be signed by Signature by 
 the party to be charged himself; it may be signed by * 'some other agent, 
 person thereunto by him lawfully authorised." This authority 
 
 (q) Bill v. Bament, 9M.&W. (z) Bailey v. Sweeting, 9 C. B. , 
 
 36. N. S. 857, and Elliott v. Dean, 
 
 (r) Vandenbergh v. Spooner, 1 C. & E. 283. 
 
 L.R. 1 Ex. 316; Salev. Lambert, (a) Knight v. Crockford, 1 
 
 L. R. 18 Eq. 1, and Donnison v. Esp. 190. 
 
 People's Cafe Co., W. N. July (b) Caton v. Caton, L. R. 211. 
 
 9th, 1881. L. 127. 
 
 (s) Elmore v. Kingscote, 5 B. (c) Baker v. Dening, 8 Ad. & 
 
 & C. 583, and Acebal v. Levy, E. 94. 
 
 10 Bing. 376; but see Hoadley (d) Saunderson v. Jackson, 2 
 
 v. McLaine, 10 Bing. 482. B. & P. 238. 
 
 (I) Bleakelyu. Smith, 11 Sim. (e) Selby v. Selby, 3 Mer. 2. 
 
 150. (f) Godwin v. Francis, L. R. 
 
 (u) Owen v. Thomas, 3 M. & 5 C. P. 295. 
 
 K. 353. (g) Laythoarp v. Bryant, 2 
 
 (x) Rose v. Cunynghame, 11 Bing. N. C. 735. 
 
 Ves. 550. (h) Reuss v. Picksley, L. R. 1 
 
 (y) Gibson v. Holland, L. R. Ex. 342. 
 1 C. P. 1.
 
 18 
 
 THE MEMORANDUM OR NOTE IN WRITING, 
 
 Bought and 
 sold notes. 
 
 Different 
 documents. 
 
 Difference in 
 wording be- 
 tween 4th 
 and 17th sec- 
 tionsv 
 
 may be conferred without writing. But one of the contracting 
 parties cannot be the other's agent for the purpose of signing (i); 
 and for this reason an auctioneer cannot successfully sue on a 
 contract which he has signed as agent (k), and although under 
 ordinary circumstances, the auctioneer's clerk is not the pur- 
 chaser's agent, yet there may exist special circumstances from 
 which the clerk's authority to sign may be inferred so as to enti- 
 tle the auctioneer to sue (I) . 
 
 Many contracts are made through brokers, and when a broker 
 is the agent of both parties, his signature binds them. A broker — 
 according to the general practice — first makes an entry of the con- 
 tract in his book and signs it, and then sends a copy to each party, 
 the "bought note" to the buyer and the "sold note" to the seller; 
 and these notes, if they agree, constitute a sufficient memoran- 
 dum to satisfy the statute (m). If they do not agree, but vary 
 materially, they do not constitute a binding contract (»). If 
 there are no bought and sold notes, or if they disagree, it seems 
 that recourse may be had to the entry in the broker's book (o). 
 
 The terms of a contract, it is to be observed, need not all appear 
 in the same document. But the connection between various 
 documents cannot be proved by oral evidence (p). 
 
 The student should notice a difference in the wording between 
 the 4th and the 17th sections. The 4th says merely, "no action 
 shall be brought," while the 17th declares that no contract within 
 it shall be "allowed to be good." The 4th section, therefore, refers 
 only to the procedure, and does not affect the intrinsic validity of 
 the contract (q). 
 
 See also Goodall v. Harding, 52 L. T. 126, and Phelan v. Led- 
 castle, 15 L. R., Ir. 169. 
 
 Alteration of Terms between creditor and debtor 
 releases Surety. 
 
 [9.] WHITCHER v. HALL. 
 
 [5 B. & C. 269 (1826). 
 Whitcher agreed to let Joseph Hall have 30 cows for 
 milking at £7 10s. each per annum, and James Hall be- 
 came surety for the due payment of the money. By and 
 
 C. 436. 
 
 (o) Sievewright v. Archibald, 
 17 Q. B. 124. 
 
 (p) See Boydell v. Drummond, 
 p. 32. 
 
 (q) Leroux v. Brown, 12 C. B. 
 801, and see Williams r. Wheel- 
 er, 8 C. B.. N. S., 299, and 
 Britain v. Rossiter, 40 L. T. N. 
 S. 240. 
 
 (i) Sharman v. Brandt, L. R. 
 6 Q. B. 720. 
 
 (k) Farebrother v. Simmons, 
 5 B. & Aid. 333. 
 
 (?) Bird v. Boulter, 4 B. & Ad. 
 443. Peirce v. Corf, L. R. 9 Q. 
 B. at p. 215. 
 
 (?ra) Rucker v. Cammeyer, 1 
 Esn. 105. 
 
 (n) Grant ». Fletcher, 5 B. &
 
 ALTERATION OF TERMS RELEASES SURETY. 19 
 
 by some of the cows died, and the terms of the letting 
 were changed so that Joseph was to have the milking of 
 28 cows during one part of the year and of 32 during the 
 other. James was not consulted on the subject ; and, 
 indeed, it is difficult to see that the alteration in any way 
 prejudiced him. But although there was thus no sub- 
 stantial alteration of the original terms, yet the court 
 considered that an alteration was an alteration, and 
 that James Hall was thereby released from his surety- 
 ship. 
 
 It may be added that from this opinion Mr. Justice 
 Littledale dissented, citing the maxim de minimis non 
 curat lex, by which he meant that the alterations were so 
 trilling as to be not worth considering. 
 
 The man who is kind enough to become surety for a friend un- 
 dertakes a very thankless office ; and the law is jealously anxious 
 to shield him against fraud and imposition. Wkitcher v. Hall 
 well illustrates the rule that any alteration of the terms of the 
 original agreement by the creditor and the debtor behind the 
 surety's back, will exonerate the surety, unless the rights against 
 him are expressly reserved (r). 
 
 The law on the subject was lately summed up by Cotton, L.J., 
 as follows : — 
 
 "The true rule, in my opinion, is that if there is any agreement True rule 
 between the principals with reference to the contract guaranteed, stated by 
 surety ought to be consulted, and that if he has not consented to Cotton, L.J. 
 the alteration, although in cases where it is without inquiry evi- 
 dent that the alteration is unsubstantial, or that it cannot be other- 
 wise than beneficial to the surety, the surety may not be dis- 
 charged ; yet that if it is not self-evident that the alteration is unsub- 
 stantial, or one which cannot be prejudicial to the surety, the court will 
 not, in an action against the surety, go into an enquiry as to the 
 effect of the alteration, or allow the question whether the surety 
 is discharged or not to be determined by the finding of a jury as 
 to the materiality of the alteration, or on the question whether 
 it is to the prejudice of the surety, but will hold that in such a 
 case, the surety himself must be the sole judge whether or not he will 
 consent to remain liable notwithstanding the alteration, and that 
 if he has not so consented he will be discharged (s). 
 
 (r) Kearsley r. Cole, 16 M & (s) Holme v. Brunskill, 3 Q. 
 W. 128, and Price v. Barker, 24 B. D. 495. 
 L. J. Q. B. 130.
 
 20 
 
 ALTERATION OF TERMS RELEASES SURETY. 
 
 Misrepresen- 
 tation ot con- 
 cealment. 
 
 Giving time, 
 
 Altering the terms is not the only way in which the surety 
 becomes a free man once more. He is always discharged in the 
 following cases : 
 
 (1) If there has been a fraudulent misrepresentation to, or conceal- 
 ment from, him (t). 
 
 But the creditor is not bound to communicate every circumstance 
 calculated to influence the discretion of the surety in entering into 
 the contract ; what he must disclose is simply any arrangement be- 
 tween himself and the debtor which would make the surety's 
 position different from what he would reasonably expect (w). 
 "The plaintiff and defendant," said Holroyd, J., in the case last 
 referred to, " icerc not on equal terms. The former with the knowl- 
 edge of a lact which necessarily must have the effect of increas- 
 ing the responsibility of the surety, without communicating that 
 fact to him, suffers him to give the guarantee. .That was a fraud 
 upon the defendant, and vitiates the contract." Moreover 
 as was said by the Lord Chancellor, in Owen r. Homan (x) 
 (where, the surety was an infirm old married woman, living apart 
 from her husband, and the aunt of the debtor), " without saying 
 that in every case a creditor is bound to inquire under what cir- 
 cumstances his debtor has obtained the concurrence of a surety, 
 it may safely be stated that if the dealings are such as fairly to 
 lead a reasonable man to believe that fraud must have been used 
 in order to obtain such concurrence, he is hound to make enquiry, 
 and cannot shelter himself under the plea that he was not called 
 on to ask, and did not ask, any questions on the subject." 
 
 (2) If the creditor enters into a binding agreement with the dtbtorto 
 give him time, unless by such agreement the creditor reserves his rights 
 against the surety (y). 
 
 The reason why the surety is discharged in this case is that the 
 creditor by givingtime to thedebtor has, for the time at least, put it 
 out of the power of the surety to consider whether he will have 
 recourse to his remedy against the principal debtor or not, and 
 because the surety cannot in fact have the same remedy against 
 the principal as he would have had under the original contract. 
 
 Mere forbcarence or laches, however, will not discharge the 
 surety (z). Nor will a contract with a stranger to give time to the 
 principal debtoi;affect the right against the surety (a). 
 
 (t) Lee v. Jones. 14 C. B. N. 
 S. 386, and Phillips v. Foxhall, 
 L. R. 7 Q. B. 666. 
 
 (i<) Hamilton v. Watson, 12 
 CI. & Fin. 109, and Pidcock v. 
 Bishop, 3 B. & C. 605; and see 
 Byrne v. Muzio, 7 L. R. Ir. 396. 
 
 (x) 4 H. L. C. A. 997. 
 
 (y) Bees v. Berrington, 2 Ves. 
 jun. 540, and Croydon Gas Co. 
 v. Dickinson, 1 C. P. D. 707; 
 
 but see York Banking Co. i\ 
 Bainbridge. 43 L. T., N. S. 733. 
 
 (z) Orrne v. Young, 1 Holt, 84, 
 and Goring r. Edmunds, (i Bing. 
 94; Oriental Financial Corpora- 
 tion v. Ore rend & Co., L. R. 7 
 Ch. Ap. at p. 150. 
 
 (a) Lyon v. Holt, 5 M. & W. 
 250, and Eraser v. Jordan, 8 E. 
 & B. 303.
 
 ALTERATION OF TERMS RELEASES SURETY. 21 
 
 "Where two qr more sureties contract severally, the creditor 
 does not break the contract with one of them by releasing the 
 other. The contract remaining entire, the surety in order to es- 
 cape liability must show an existing right to contribution from 
 his co-surety which has been taken away or injuriously affected 
 by his release '' (b). 
 
 (3. ) If the principal debt is released or satisfied. 
 
 But it may be mentioned here that when several persons join Debt satis- 
 together in a bond of suretyship, e. g., in the sum of £50 each for ue(l - 
 the honesty of a clerk, they are separately liable, so that the pay- 
 ment of £50 by one of them is no answer to an action on the 
 bond against one of the others (e). 
 
 (4.) If the creditor omits to do something lohieh was the surety 1 s Considera- 
 consideration for entering on the responsibility. * lon n,)t P er " 
 
 (5.) If the person guaranteed does something distinctly injurious to 
 .... , . ., . Surety's m- 
 
 Ihe interest of the surely ; terest prej u- 
 
 e g., if I am surety for the honest servicer of a clerk, and his diced. 
 master systematically throws temptations in his way (d). But the 
 master's mere passive inactivity will not discharge the surety. If, 
 however, he finds out that the servant has been guilty of dishon- 
 esty he must inform the surety, who may withdraw (e). 
 
 It often becomes an important and difficult question whethera Continuing 
 particular guaranty is a continuing one or not ; that is to say, guaranties. 
 whether the surety's undertaking is to be confined or not to one trans- 
 action. The question is to be answered by considering the sur- 
 rounding circumstances, and getting as near as possible to the in- 
 tention of the parties, the presumption being that it is a continu- 
 ing guaranty, because "if a party meant to confine his liability 
 to a single dealing, he should take care to say so" (/). A man 
 who had a nephew setting up as a butcher, gave a cattle dealer 
 this undertaking: — 
 
 " J, John Meadows, of Barwick, in the county of Northampton, Heffield v. 
 will be answerable for £50 sterling that William York, of Stamford, Meadows. 
 butcher, may buy of Mr. John Ilejfield, of Donington.'''' 
 
 The young butcher made payments at various times to Mr. Hef- 
 field, amounting to over £90, but he afterwards failed to meet his 
 engagements ; and the question was whether anything could be 
 got out of Meadows as surety. Meadows strenuously maintained 
 that, as his nephew had paid £90, and £90 was a larger sum of 
 mo.iey than £50, — the amount for which he had undertaken to be 
 liable, — the guaranty was at an end. But it was held that, as 
 the object of the guaranty plainly was to keep the young man going 
 as a butcher, it was a continuing guaranty, and Meadows must 
 
 (b) Ward v. National Bank of (e) Burgess v. Eve, L. R. 13 
 New Zealand, 8 App. C'a. 755. Eq. 450 ; and see Guardians of 
 
 (c) Armstrong v. Cahill, 6 L. Mansfield Union v. Wright, 9 
 R. Ir. 440. Q. B. D. 683. 
 
 (d) Smith v. Bank of Scot- (f) Per Lord Ellenborough 
 land, 1 Dow, 292. in Merle v. Wells, 2 Camp. 413.
 
 22 
 
 ALTERATION OF TERMS RELEASES SURETY. 
 
 Guaranties to 
 or for firm. 
 
 Death of 
 surety. 
 
 Transfer of 
 securities to 
 surety. 
 
 Contribu- 
 tion. 
 
 P a y (o)- The cases, however, run pretty close, as may he imag 
 hied, when it is said that the following was held not to be a con 
 tinuing guaranty : — 
 
 "7 hereby agree to be answerable for the payment of £50 for T. 
 Lcrigo, in case T. Lerigo does not pay for the gin he receives from 
 you" (h). 
 
 A guaranty given to, or for, a firm only continues binding after 
 a change in its constitution when it appears to have been thfe 
 clear intention that it should so continue (t). 
 
 The death of the surety does not per se operate as a revocation 
 of a continuing guaranty, but notice to the creditor determines it 
 as to future advances (k). But a guaranty, the consideration of 
 which is given once for all (e.g., admission as an underwriting 
 member at Lloyd's), cannot be determined by the guarantor, and 
 does not cease at his death (I). 
 
 A surety who has paid his friend's debt is entitled to have trans- 
 ferred to him any securities which the creditor may have held, 
 notwithstanding his ignorance of their existence, or their having 
 been given since he entered on the suretysnij) [m). And if the 
 creditor has so dealt with the security that on payment by the 
 surety it is no use to him, he is discharged to the extent of the 
 security (»). 
 
 A surety is also entitled to call on his co-sureties (whether 
 bound by the same instrument or not [o) for contribution ; and if 
 there are three co-sureties, of whom one has become insolvent, the 
 surety who has been compelled to pay the debt may come upon 
 the remaining solvent surety not merely for an aliquot proportion 
 of the money paid, but for a moiety (p). Besides being entitled 
 to contributions from each other, sureties are also entitled to the 
 benefit of all securities which any one of them may have taken (q). 
 But it is to be borne in mind that a surety is not entitled to sue 
 his co-surety for contribution unless he has paid, if not the whole 
 of the principal debt, at all events more than his share of it (r). 
 
 See also the recent cases of Lawes v. Maughan, 1 C. & E. 340 ; 
 Carter v. White, 25 Ch. D. 666 ; Ashby ». Day, 54 L. J. Ch. 935; 
 and Oddy v. Hallett, 1 C. & E. 532. 
 
 (g) Hern eld v. Meadows, L. 
 R. 4 C. P. 595. 
 
 (k) Nicholson v. Paget, 'I. C. & 
 M. 48. 
 
 (t) 19 & 20 Vict. c. 97, s. 4, 
 and see Backhouse v. Hall, 6 B. 
 & S. 507. 
 
 (k) Coulthart v. Clementson, 
 5 Q. B. D. 42, and see Harriss 
 r. Fawcett, L. R. 15 Eq. 311, 
 and Beckett v. Addyman, 51 L. 
 J. Q. B. 597. 
 
 (0 Lloyd's v. Harper, 16 Ch. 
 Div. 290. 
 
 (m) 19 & 20 Vict. c. 97, s. 5. 
 
 (n) Campbell r. Bothwell, 47 
 L. J., and see Rainbow v. Jug- 
 gins, 49 L. J. Q. B. 718. 
 
 (o) Bering v. Wincliel&ea, 1 
 Cox, 318, and see Ramskill v. 
 Edwards, 31 Ch. Div. 100. 
 
 (p) 36 & 37 Vict. c. 66, s. 25, 
 sub-s. 11. 
 
 (q) Steel v. Dixon, 50 L. J. 
 Ch. 591. 
 
 (r) In re Snowden, 50 L. J. 
 Ch. 540, and see Davies v. Hum- 
 phreys, 6 M. & W. 153.
 
 INTERESTS IN OR CONCERNING LAND. 
 
 23 
 
 Interests in or concerning Lands. 
 
 CROSBY f. WADSWORTE [10.] 
 
 [6 East, 602 (1805 j.] 
 
 Farmer "Wadsworth, of Claypole, in Lincolnshire, had a 
 field of likely-looking grass, which Crosby, with an eye 
 to hay, desired to purchase. Meeting casually one day 
 in June, it was agreed between them in conversation 
 that Crosby should have the grass for 20 guineas, only 
 he was to have the trouble of mowing and making it 
 into hay. Soon afterwards, however, Wadswortb got a 
 better offer for his grass, so he coolly proceeded to break 
 his word to Crosby. The latter brought this action for 
 breach of contract, but unfortunately took nothing by 
 that, as it was held that the contract was one which had 
 to do zcith the land, and therefore should have been in 
 writing, as required by the 4th section of the Statute of 
 Frauds. 
 
 The case that is always contrasted with Crosby v. Wadsworth is Growing 
 Parker v. Staniland (s), where it was held that a contract for the potatoes, 
 sale of growing pola(ocsvcas7iota contract for the sale of any interest 
 in or concerning land, the potatoes being regarded as chattels 
 stored in a warehouse. 
 
 It is not easy to extract from the cases a clear rule for deter- Difficult v <>f 
 mining when, and when not. a sale of growing crops is a sale of laying down 
 an "interest in or concerning" lands. In Benjamin's "Sale of dear rule. 
 Personal Property," however, the law is summarised as follows (<) : 
 
 " Growing crops, if FBTTCTUS INDTTSTEIAXES, are chattels, and 
 an agreement for the sale of them, whether mature or immature, 
 whether the property in them is transferred before or after sever- 
 ance, is not an agreement for the sale of any interest in land, and 
 is not governed by the 4th section of the Statute of Frauds. Grow- ^j f t> . 
 ing crops, if FBUCTUS INDUSTBIALES, are part of the soil before m [ n ' s ru 'i e . 
 severance, and an agreement, therefore, vesting an interest in them 
 in the purchaser before severance, is governed by the 4th section; 
 but if the interest is not to be vested till they are converted into 
 chattels by severance, then the agreement is an executory agree- 
 
 (s) 11 East, 362. 
 
 (t) 3rd ed., p. 115.
 
 24 
 
 INTERESTS IN OR CONCERNING LAND. 
 
 Agreements 
 requiring to 
 be in writing. 
 
 Agreements 
 which need 
 not be in 
 writing. 
 
 ment for the sale of goods, wares and merchandise, governed by 
 the 17th and not by the 1th section of the statute." 
 
 For cases in support of this proposition the student .should refer 
 (in addition to the leading case and to Parker r. Staniland) t<j 
 .Smith v. Surman [ii) (standing timber to be cut by the seller — 
 held not within sec 4); "Warwick v. Bruce (.r), and Sainsbury v. 
 Matthews (y) (potatoes to be dug by the purchaser when ripe — 
 held not within sec. 4); Washburn v. Burrows (z) (growing grass 
 to be cut by the seller — held not within sec. 4); Evans v. Roberts(n) 
 (potatoes to be turned up by the seller — held not within sec. 4); 
 Rod well v. Phillips (b) (growing fruit — held within sec. 4); and 
 Marshall v. Green (c) (growing timber to be cut by the purchaser 
 — held not Avithin sec. 4) 
 
 As to things other than growing crops, the following agree- 
 ments have been held to "concern" land and require writing: — 
 
 To enable a person to take water from a well <d): 
 
 To convey an equity of redemption (n; 
 
 To let or take furnished lodgings (/); 
 
 To surrender a tenancy, and try and get the landlord to accept 
 the other contracting party as tenant (g) : 
 
 To sell sheires in ei mine (/;); and 
 
 An agreement for ei lease, or for the sale assignment, or transfer 
 of a leasehold estate (i); and 
 
 A grant of a right to shoot over land, and take away a part of 
 the game killed (k). 
 
 But the following agreements have been held not to be within 
 sec. 4: — 
 
 To build a water-closet for a tenant (/); 
 
 For board and lodging merely (»i); 
 
 As to the cost of investigating the title to land {n)\ 
 
 To sell shares in railway, canal, dock, banking, insurance, or 
 gas companies (o); 
 
 And in the equity leading cases of Russell v. Russell (p) it was 
 held that an equitable mortgage by deposit of title-deeds was valid, 
 notwithstanding the 4th section of the Statute of Frauds. 
 
 (u) 9B. &C.-5G1. 
 (a:) 2 M. & S. 205. 
 (y) 4 M. & W. 343. 
 (z) 1 Ex. 107. 
 (a) 5B. &C. 829. 
 (/;) M. & \Y. r,02. 
 
 (c) 1 C. P. D. 35. 
 
 (d) Tyler v. Bennett, 5 Ad. & 
 E. 377. 
 
 (e) Massey v. Johnson, 1 Ex. 
 255. 
 
 (/) Inman v. Stamp, 1 Stark, 
 12. 
 
 (g) Cocking v. Ward, 15 L. 
 J. C. P. 245. 
 
 (//) Boycer. Green, Batty, 608. 
 
 (i) Poulteney v. Holmes, Str. 
 405. 
 
 (k) Webber v. Lee, 9 Q. B. D. 
 315. 
 
 (/) Mann v. Nunn, 43 L. J. 
 C. P. 211. 
 
 (>») Wright v. Stavert, 2 E. 
 & E. 721. 
 
 (n) Jeakes v. White, 6 Ex. 873. 
 
 (o) Bligh r. Brent, 2 Y. & C. 
 268; Bradley v. Holdsworth, 3 
 M. cS: W. 422; and Duncuft p. 
 Albrecht, 12 Sim. 189. 
 
 ( p) 1 Bro. C. C.269.
 
 NOT TO BE PERFORMED WITIIIN THE YEAR. 25 
 
 Not to be performed with In the space of One Year. 
 
 PETER v. COMPTON. [11.] 
 
 [Skin. 353 (1690j.] 
 
 "Peter, my boy," said Compton, festively, "what do 
 you say to this ? If you will give me a guinea nowlivill 
 give you 1000 guineas on your wedding day.'''' " Agreed," 
 cried Peter, and paid down the guinea, which Compton 
 pocketed, thinking it good business. 
 
 Two years afterward Peter married, and claimed the 
 1000 guineas. Compton declined to pay, because, he 
 said, the 4th section of the Statute of Frauds pro- 
 vided that an "agreement that is not to be performed 
 withiu the space of one year from the making thereof" 
 must be in writiDg. 
 
 It was held, however, that the stahrfe only applies to 
 agreements which are in their terms incapable of per- 
 formance within the year, whereas Peter might have got 
 married the very next day. 
 
 If you were to engage a person for a year's service from next Agreements 
 Tuesday fortnight, the agreement between yourself and the ser- incapable of 
 vant would clearly be one which by its terms was incapable of performance 
 performance within the year; and therefore it would not be bind- nn 
 ing unless in writing (q). A general hiring, however, which is 
 construed to be for a year, need not be in writing (r). 
 
 Supposing the agreement to be in its terms incapable of perform- Condition • 
 
 ance within the year, it must still be in writing, though there is a which may 
 
 condition which may put an end to it within the year. Thus a con- P u ^ an en " to 
 
 tract with a coachmaker to hire a carriage from him for five years ' *?T e . * n 
 
 ° J within year, 
 
 has been held altogether void, because not in writing, although it 
 
 was part of the agreement that either party might put an end to it 
 
 at a moment'snotice (.s). On thesame principle, a contract between 
 
 a solicitor and an insurance company that the former shall be the 
 
 company's solicitor during his whole professional life and so long as 
 
 (q) Bracegirdle v. Heald, 1 B. (r) Beeston v. Collyer, 4 Bing. 
 & Aid., 722; and see Britain v. 309. 
 
 Rossiter, 11 Q. B. D. 123. (s) Birch v. Liverpool, 9 B. & 
 
 C. 392.
 
 26 NOT TO BE PERFORMED WITHIN THE YEAR. 
 
 they continue a company, must be in writing, notwithstanding the 
 chance of its terminating by death, resignation, or otherwise (t). 
 
 On the other hand, a promise by a man to a woman he had co- 
 habited with to pay her £300 a year so long as she should maintain 
 and educate their seven illegitimate children, has been held not with- 
 in the statute (it). 
 
 So has a contract for valuable consideration to leave a sum of 
 money whenever the promisor should die (x). 
 
 The question in all these cases is, Is the contract prima facie in- 
 capable of performance within the year? 
 Donellan v. The section applies only to contracts which are not to be per- 
 Read. formed oneilhersidc within the year; so thatPeter v. Compton might 
 
 have been decided in the same way on the ground that one of the 
 parties was wholly to execute his part of the contract within the 
 year. The leading case on this point is Donellan v. Read (y), an ac- 
 tion for extra rent payable in pursuance of the terms of a verbal 
 agreement by which the landlord was forthwith to do some repairs. 
 
 See also Bevan v. Carr, 1 G. & E. 499, and Miles v. New Zealand 
 Alford Estate Co., 54 L. J. Ch. 1035. 
 
 Goods, Wares, or Merchandises for the price of 
 Ten Pounds. 
 
 [12.] BALDEY v. PARKER. 
 
 [2 B. & C. 37 (1823).] 
 
 Mr. Parker went one day into a linendraper's shop, and 
 bargained for a number of trifling articles, a separate price 
 being agreed on for each, and no one article being priced 
 so high as £10. The articles that Mr. Parker decided to 
 buy he marked with a pencil, or assisted in cutting from a 
 larger bulk. Then he went home, desiring that an account 
 of the whole should be sent after him. This was done, 
 and the sum Parker was asked to pay was £70, minus 
 5 per cent, discount for ready money. This discount he 
 quarrelled with, not considering it liberal enough, and, 
 
 {t) Eley v. Positive Assurance non, 4 Ex. Div. 81. 
 
 Co., 1 Ex. Div. 88. (x) Ridley v. Ridley, 34 L. J. 
 
 (w) Knowlman v. Bluett, L. R. Ch. 462. 
 
 9 Ex. 1; and see Davy v. Shan- (y) 3 B. & Ad. 899.
 
 THE SEVENTEENTH SECTION. 27 
 
 when the goods were sent to him, he refused to accept 
 them. 
 
 This was an action by the linendraper against his re- 
 calcitrant customer, and the main question was whether 
 the contract was one " for the sale of goods, wares, or 
 merchandises for the price of £10 " within the 17th sec- 
 tiou of the Statute of Frauds. The question was de- 
 cided in the affirmative, the contract having been an 
 entire one, and " it being the intention of that statute," 
 as Holroyd, J , said, " that, where the contract, either 
 at the commencement or at the conclusion, amounted to, 
 or exceeded the value of £10, it should not bind unless 
 the requisites there mentioned were complied with." 
 " The danger," he added, " of false testimony is quite 
 as great where the bargain is ultimately of the value of 
 £10 as if it had been originally of that amount." 
 
 "Where, however, at an auction several successive lots are Lots at 
 knocked down to the same person, a distinct contract arises as to auction, 
 each lot (z). 
 
 But it has been held that, although at the time of the contract it 
 is uncertain whether the subject-matter of the sale will be worth 
 £10 or not {e.g., suppose the sale to be of a future crop of turnip Future crop, 
 seed, which may or may not turnout a success), yet if that figure 
 is ultimately reached, the statute applies (a). It is to be ob- k p.,: oe >> 
 served that, though the word in the 17th section is "price," means value. 
 the effect of section 7 of Lord Tenterden's Act (b), which is to be 
 read with the 17th section of the Statute of Frauds, as if incor- 
 porated therein, is to substitute the word " value " (c). 
 
 The words of the 17th section, "goods, wares, and merchan- Shares, 
 dises, ' ' do not apply, it has been held, to shares, stocks, docu- 
 ments of title, choses in action, and other incorporeal rights and 
 property (d). 
 
 In the leading case an attempt was made to bring the pur- 
 chaser withiu the other part of the 17th section by showing that 
 he had "accepted and actually received " the goods. The con- 
 tinuance of the vendor's lien, however, was held to be fatal to 
 such a contention. 
 
 (z) Emmerson v. Heelis, 2 (b) 9 Geo. IV. c. 14. 
 
 Taunt. 38, and see Rugg v. (c) Harman v. Reeve, 18 C. 
 
 Minnett, 11 East, 218. B. 587. 
 
 (a) Watts v. Friend, 10 B. & (rf) Bowlby v. Bell, 3 C. B. 
 
 C. 446. 284.
 
 28 THE SEVENTEENTH SECTION. 
 
 Accept and actually Receive. 
 
 [13 ELMORE v. STONE. 
 
 [1 Taunt. 458 (1809).] 
 
 Elmore was a livery stable-keeper, and had a couple 
 of horses for sale, for which he wanted £200. Stone 
 admired the horses, but not the price. Finding, how- 
 ever, he could not get them for less, he sent word he 
 would take the horses, " but, as he had neither servant 
 nor stable, Mr. Elmore must keep them at livery for 
 him." 
 
 In consequence of this message, Elmore removed the 
 horses from his sale stable into another stable, which 
 he called his livery stable. In an action which he 
 brought for the price, the question was whether such 
 removal was a sufficient constructive delivery to take the 
 case out of the Statute of Frauds, and it was held that 
 it was, as Elmore from that time held the horses, not as 
 owner, but as any other livery stable keeper might have 
 done. 
 
 TEMPEST v. FITZGERALD. 
 [14.] [3 B. & A. 680 (1820).] 
 
 Mr. Fitzgerald, paying a visit to Mr. Tempest, took 
 a fancy to one of his host's horses, and finally agreed 
 to buy it for 45 guineas. He could not do with the an- 
 imal just then, but he said he would call for it on his 
 way to Doncaster races, and Tempest agreed to take care 
 of it in the meantime. Both parties understood the 
 transaction to be a ready-money bargain. Just before 
 the races Fitzgerald returned to Tempest's house, gal- 
 loped the horse, and gave various directions about it, 
 treated it in every way as his own, and asked his host 
 to keep it a week longer, saying he would return imme- 
 diately after the races, pay the 45 guineas, and take the
 
 THE SEVENTEENTH SECTION. 29 
 
 horse away. Unfortunately, during the Doncaster race 
 week, the horse died, and mutual recriminations en- 
 sued ; Tempest contending that the loss ought to fall 
 on Fitzgerald, as the property in the horse had passed 
 to him, Fitzgerald maintaining the opposite view. The 
 latter was the view adopted by the judges, as they con- 
 sidered there had been no such receipt as would satisfy 
 the Statute of Frauds. 
 
 While the 17th section of the Statute of Frauds inculcates on Acceptance 
 contracting parties the importance and desirability of writing, and receipt, 
 when the value of the goods sold exceeds £10, it at the same time 
 permits them, in the absence of writing, to bind themselves if 
 certain other circumstances are present. Writing, for instance, is 
 unnecessary if " the buyer shall accept part of the goods so sold, 
 and actually receive the same. ' ' The words of the statute have been 
 so interpreted that they are satisfied very often by a constructive 
 acceptance. In Elmore v. Stone, for instance, the seller changes Constructive 
 his character, and becomes a bailee for the purchaser, losing, of acceptance, 
 course, his right of lien. Similarly, if a man sold his horse, but 
 asked the purchaser if he would be kind enough to let him keep 
 it a few days longer, and the purchaser consented, there would be 
 a sufficient acceptance (e). So there was held to be evidence of 
 acceptance in a case where the defendant, having verbally agreed 
 to buy a haystack of the plaintiffs, resold part of it to a third per- 
 son who removed it (/). 
 
 " It is of great consequence," said Lord Kenyon, C. J., in that 
 case, "to preserve unimpaired the several provisions of the Stat- 
 ute of Frauds, ichich is one of the wisest laws in our statute book. My 
 opinion will not infringe upon it ; for here the report states that 
 the question was specifically left to the jury whether or not there 
 was an acceptance of the hay by the defendant, and they have 
 found that there was, which puts an end to any question of law. 
 I do not mean to disturb the settled construction of the statute, 
 that in order to take a contract for the sale of goods of this value 
 out of it, there must either be a part delivery of the things, or a 
 part payment of the consideration, or the agreement- must be re- 
 duced to writing in the manner therein specified. But I am not 
 satisfied in this case that the jury have not done rightly in find- 
 ing the fact of a delivery. Wlicre goods are ponderous, and incapa- 
 ble (as here) of being handed over from one to another, there need not 
 be an actual delivery ; but it may be done by thatiohich is tantamount, 
 such as the delivery of the key of a warehouse in which the goods are 
 
 (e) Marvin v. Wallis, 6 E & (/) Chaplin v. Rogers, 1 East, 
 B. 726. 192. 
 
 4 COMMON LAW.
 
 30 
 
 THE SEVENTEENTH SECTION. 
 
 Vendor's 
 lein. 
 
 Effect of 
 acceptance. 
 
 Earnest and 
 part pay- 
 ment. 
 
 lodged, or by delivery of other indicia of property. ' ' As to what 
 amounts to an acceptance within the statute see further the re- 
 cent case of Page v. Morgan, 15 Q. B. D. 228, where some wheat 
 was refused as not being equal to sample, and Kibble v. Gough, 
 38 L. T. N.S. 204, was followed. 
 
 Tempest v. Fitzgerald may seem, at first sight, to trench rather 
 closely on Elmore v. Stone ; but in the former case the bargain was 
 for ready money, and the vendor's lien, therefore, would continue 
 till the price was paid ; and there can be no acceptance by the pur- 
 chaser as long as the vendor's lien continues. In Elmore v. Stone, 
 by consenting to act in a new capacity, the vendor relinquished 
 his lien. 
 
 A delivery to a common carrier, it may be mentioned, is gen- 
 erally a delivery to the vendee (g) . 
 
 The effect of the acceptance required by the statute is not to 
 preclude a party from disputing that the contract has been prop- 
 erly carried out, but simply to prevent him from objecting that 
 the contract is not in writing (h). 
 
 Writing is also unnecessary if the buyer gives " something in 
 earnest to bind the bargain or in part of payment.' 1 ' 1 If what the 
 buyer gives is money, it presumably forms part of the price ; other- 
 wise it is in the nature of a pledge. There must bean actual trans- 
 ference. Therefore it is not sufficient for the buyer to draw a shil- 
 ling across the hand of the seller, and then put it into his pocket 
 again (i) Nor will the buyer's relinquishment of a debt do (k). 
 
 Goods not yet in Existence. 
 
 [15.] LEE v. GRIFFIN. 
 
 [1 B. & S. 272 (1861).] 
 
 This was an action against an executor to recover the 
 price of artificial teeth made for his testatrix, who had 
 died before they were ready. The price of the teeth 
 being £21, and there being no writing, the 17th section 
 of the Statute of Frauds prevented the dentist from re- 
 covering for goods sold and delivered, but it was suggest- 
 ed that the count for work, labour and materials might 
 
 (g) Dawes v. Peck. 8 T. R. 
 330, and Dunlop v. Lambert, 6 
 CI. & Fin. 600. 
 
 (ft) Morton v. Tibbett, 15 Q. 
 B. 428, and Grimoldby v. Wells, 
 
 L. R. 10 C. P. 391. 
 
 (■/) Blenkinsop v. Clayton, 7 
 Taunt. 597. 
 
 (k) Walker v. Nussey, 16 M. 
 & W. 302.
 
 LORD TENTERDEN'S ACT. 31 
 
 be sustained. This view, however, was not adopted, the 
 rule being stated to be that if the contract be such that 
 when carried out it would result in the sale of a chattel, 
 the party cannot sue for work and labour. 
 
 Goods not in existence at the time of the contract, hut which I,ord Tender- 
 were to be made and delivered at a future time, were held not to den's Act. 
 be within the 17th section. Lord Tenterden's Act (/), however, 
 brought them within it, and contracts relating to such goods must 
 now be in writing, just as much as those relating to goods already 
 in existence. The great question, when such a contract has not 
 been reduced to writing, is — is this a contract for the sale of goods 
 so as to be within the statute, or is it a contract for work and 
 labour, so that writing is unnecessary ? On this constantly arising 
 question Lee v. Griffin is an important authority, and must be 
 carefully distinguished from Clay v. Yates (m), where it was held Clay v. 
 that an agreement by a printer to print a book, although it in- Yates. 
 volved finding materials, was not within the statute, and need not 
 be in writing. At one time it was thought that the test to be ap- 
 plied to such cases was whether the value of the work exceeded the 
 value of the materials; but that rule seems now to have yielded to 
 the one laid down in the leading case. 
 
 Lee v. Griffin is also occasionally referred to as an authority on Exemptions 
 the law relating to exemptions from stamp duty. The following from stamp 
 agreements need not be stamped: — duty. 
 
 (1.) An agreement or memorandum, the matter whereof is not Below £5. 
 of the value of £5, or is incapable of pecuniary measurement. 
 
 (2. ) An agreement or memorandum for the hire of any labourer, Hire of ser- 
 artificer, manufacturer, or menial servant. vant. 
 
 (3.) An agi-eement, letter, or memorandum made* for or relat- Sale of goods, 
 ing to the sale of any goods, wares, or merchandise. 
 
 (In the leading case it was held that an agreement to make a 
 chattel and deliver it within a certain time is within the exemp- 
 tion), and 
 
 (4.) An agreement or memorandum made between the master Coasting, 
 and mariners of any ship or vessel for wages or any voyage coast- 
 wise from port to port in the United Kingdom. 
 
 Moreover, when there are several documents, but the papers Several 
 form in fact, only one agreement, only one of them need be documents 
 stamped. But several stamps are necessary in the case of dis- " ut one con " 
 tinct contracts, though on the same paper (n). 
 
 When an unstamped instrument in writing, which ought, to ment u n * 
 
 (/) 9 Geo. IV. c. 14, s. 7. given subject at an agreed price tr , cts ' 
 
 (m) 1 H. & N. 73. But see was a contract for the sale of a 
 
 Isaacs v. Hardy, 1 C. & E., 287, chattel. 
 
 where it was held that a con- (n) Powell v. Edmunds, 12 
 
 tract by an artist with a picture East, 6. 
 
 dealer to paint a picture of a
 
 32 
 
 CONTRACT CONTAINED IN SEVERAL DOCUMENTS. 
 
 I^ost instru- 
 ment. 
 
 Unstamped 
 receipt. 
 
 Use of 
 
 unstamped 
 
 agreement. 
 
 have been stamped, has been lost, oral evidence of its contents 
 cannot be given. If, however, there is no evidence whether it was 
 stamped or not, it is presumed to have been properly stamped (o). 
 
 If a transaction is capable of being legally proved by other evi- 
 dence than that of the unstamped document, such evidence is ad- 
 missible. For instance, though an unstamped receipt is no evi- 
 dence of payment, the fact of payment may be proved by anyone 
 who saw it, and he may use the unstamped receipt to refresh his 
 memory (p). 
 
 An unstamped agreement is admissible for collateral purposes, 
 and in criminal cases. A stamp may be added on payment of the 
 unpaid duty, a penalty of £10, and an additional sum of £1. 
 
 Contract contained in several Documents. 
 
 [16.] BOYDELL i;. DRTJMMOND. 
 
 [11 East. 142 (1809).] 
 
 This action was brought by some publishers against a 
 person who had agreed to take a quantity of Shakspe- 
 rian engravings, coming out periodically during a num- 
 ber of years. It was necessary to the publishers' case 
 to show that the agreement was in writing, as it was in 
 its terms incapable of performance within the year. 
 There had been a prospectus which the defendant had 
 seen, and a " Shakspeare subscribers, their signatures" 
 book, in which he had entered his name; and the plain- 
 tiffs thought this would do. It was held, however, that, 
 as there was no means of connecting the "Shakspeare 
 Subscribers''' book with the prospectus without oral evi- 
 dence, — no reference being made by the one to the other 
 — they did not constitute a sufficient memorandum. 
 
 • Another point the publishers tried to make was that, as 
 the defendant had taken and paid for several numbers, 
 there was sufficient "performance" to satisfy the statute. 
 
 (o) Marine Investment Co. v. 
 Haviside, L: R.5H.L 624. 
 
 ( p) Rambert v. Cohen, 4 Esp. 
 213.
 
 CONTRACT CONTAINED IN SEVERAL DOCUMENTS. 33 
 
 But it was held that part performance would not do, for 
 performance could not mean anything less than com- 
 pletion. 
 
 This case is the leading authority for the position that, though 
 a contract niay be collected from several documents, those docu- 
 ments must be so connected in sense that oral evidence is unnecessary Connected in 
 to showtlieir connection; in other words, they must be left to speak sense. 
 for themselves. 
 
 "Thestatute," says Cranworth, C, in an important case (q). "is Ridgway v. 
 not complied with unless the whole contract is either embodied in Wharton, 
 some writing signed by the party, or in some paper referred to in a 
 signed document, and capable of being identified by means of the de- 
 scription of it contained in the signed paper. Thus, a contract to grant 
 a leaseon certain specified terms is, of course, good. So, too, even if 
 the terms are not specified in the written contract, yet if the writ- 
 ten contract is to grant a lease on the terms of the lease or written 
 agreement under which the tenant now holds the same, or on the 
 same terms as are contained in some other designated paper, then 
 the terms of thestatuteare complied with. The two writings in the 
 case I have put become one writing. Parol evidence is, in such a 
 case, not resorted to for the purpose of showing what the terms of 
 the contract are, but only in order to show what the writitig is which 
 is referred to. When that fact, which, it is to be observed, is a fact 
 collateral to the contract, is established by parol evidence, the con- 
 tract itself is wholly in writing signed by the party." 
 
 In a recent case, in which the question was whether a person had 
 broken a contract to sell some land to a builder, it was held that 
 an imperfect and irregular document, purporting to bean agreement 
 by the builder to purchase and pay a deposit, was sufficiently con- 
 nected with a receipt for the deposit which the seller had signed to 
 form a binding agreement (r). So, in Cavew. Hastings (,s), which 
 was an action for breach of an agreement to hire a carriage for a 
 year, it was held that a letter of the defendant's to the plaintiff 
 referring to "our arrangement for the hire of your carriage " was 
 sufficiently connected with a document setting forth the terms of 
 the agreement. Studds v. Watson, 28 Ch. Div. 305, and Craig v. 
 Elliott, 15 L. R. It. 257, are to the same effect. 
 
 On the effect of part performance the equity leading case of Les- p ar t p Cr . 
 ter v. Foxcrofl (l), should be referred to. Courts of Equity have long formauce. 
 been in the habit when there were acts of part performance, and 
 
 {q) Ridgway v. Wharton, 3 D. N. S., 198. 
 
 M. & G. 677, and see Hussey v. (r) Long?-. Millar,41 L.T.N.S. 
 
 Home-Payne, 4 App. Ca. 311, (s) 7 Q. B. D. 125. 
 
 and Williams v. Brisco, 48 L. T., (1) Colles' P C. 108.
 
 34 CONTRACT CONTAINED IN SEVERAL DOCUMENTS. 
 
 the nature of the case seemed to require equitahle interference, of 
 decreeing specific performance of verbal agreements void at law, by 
 reason of the 4th section of the Statute of Fra*uds, as being con- 
 tracts concerning land. The general rule is that, to j ustify such in- 
 terference, the parties must, by reason of the act relied on, be in a 
 position unequivocally different from that in which, according to 
 their legal rights, they would have been if there were no contract 
 (w). In such cases the court will try and ascertain what was the 
 oral contract between the parties, and then will give effect to it 
 (x). But, as has been often observed, the court will enforce, but can- 
 not make contracts; and therefore where the contract is incomplete, 
 or its terms uncertain, specific performance will not be decreed (y). 
 Maddison v. The recent and interesting case of Maddison v. Alderson (z) may be 
 Alderson. referred to on this subject. It was a case where a woman had been 
 induced by an old Yorkshire farmer to serve him as housekeeper 
 without any wages for a number of years on the faith of his verbal 
 promise to make a will leaving her a life estate in the farm. It was 
 held that the continuance in the farmer's service in reliance on this 
 promise was no answer to the 4th section of the Statute of Frauds. 
 
 Written Contracts and Oral Evidence. 
 
 [17.] GOSS v. NUGENT. 
 
 [5 B. & Ad. 58 (1833).] 
 
 Lord Nugent entered into a written agreement with Mr. 
 G-oss to buy from him several lots of land for £450, the 
 vendor undertaking to make a good title to all the lots. 
 Soon afterwards Goss found that as to one of the lots he 
 could not make a good title; and of course Lord Nugent 
 would then have been perfectly justified in retiring from 
 the transaction. Instead of doing so he agreed orally 
 to waive the necessity of a good title being made as 
 
 (u) Dale v. Hamilton, 5 Hare L. C. 131. 
 
 381, and see Surcombe v. Pinni- (z) 8 App. Ca. 467. See also 
 
 ger, 3 D. M. & G. 571. May v. Thompson, 20 Ch. D. 705; 
 
 (a;) Mundy v. Jollifife, 5 Myl. Brittain v. Rossiter, 11 Q. B. D. 
 
 & C. R. 177. 123; and Humphreys v. Green, 
 
 (y) Thynne v. Glengall, 2 H. 10 Q. B. D. 148.
 
 WRITTEN CONTRACTS AND ORAL EVIDENCE. 35 
 
 to that lot. Afterwards, however, his lordship seems to 
 have altered his opinion as to the desirability of becom- 
 ing the owner of the land, and he declined to pay the 
 purchase-money, relying on the objection to the title. 
 In answer to that, Mr. Gross wished to prove that after 
 Lord Nugent knew about the defect of the title he 
 agreed to waive it. This, however, was not allowed, for 
 the rule is that a written contract within the statute of 
 Frauds cannot be varied by oral evidence of what passed 
 between the parties subsequently to the making of it. 
 
 The rule that a written contract cannot be varied by parol is 
 subject to one or two exceptions. 
 
 Supposing the contract to be one which, though it is in writing, W hen agree- 
 
 need not have been, it may be varied by parol evidence ofwhattook m ent need 
 
 place between the parties after the date of the agreement. Thus, . 
 
 * v J & > in writing- 
 
 if the original agreement between Goss and Nugent had not been 
 
 required by the Statute of Frauds to be in writing, Nugent's con- 
 sent to take one lot though the title was bad might have been 
 proved (a). 
 
 And, notwithstanding the general rule that parol evidence of To show 
 what took place between the parties previously to or contemporane- condition. 
 
 ously with the written agreement is inadmissible, such evidence 
 may nevertheless be given to show that the execution of the writ- 
 ten agreement was conditional on some event happening; in fact, 
 that a document purporting to be a final and absolute contract 
 purports to be what it is not. Thus, in Pym v. Campbell (b) the 
 parties had entered into a written agreement for the sale of an 
 interest in a patent, and at the same time had verbally agreed that 
 the sate should not take place unless an engineer named Abernethie 
 approved of the invention. Abernethie did not approve, and the 
 question was whether the condition could be proved. It was held 
 that it could, on the ground that the object of the evidence 
 offered was, not to vary a written agreement, but to show that 
 there was not an agreement at all. Similar evidence was also ad- 
 mitted in a case where two farmers had agreed in writing that 
 one of them should transfer his farm to the other, and had at the 
 same time verbally agreed that the transfer should be conditional 
 on the landlord's consent (c). To take yet another illustration of Consignment 
 constant occurrence, a cattle dealer a few years ago wanted to send note. 
 
 (a) See also Eden v. Blake, 13 (b) 6 E. & B. 370. 
 M. & W. 614; Noble v. Ward, (c) Wallis v. Littel, 11 C. B., 
 L. R. 2 Ex. 135. N. S., 369.
 
 36 WRITTEN CONTRACTS AND ORAL EVIDENCE. 
 
 some cattle from Guildford to the Islington market. They told 
 him at Guildford Station that the heasts would be duly forward- 
 ed to King's Cross; but they induced him to sign a consignment 
 note by which the cattle were directed to be taken to the Nine 
 Elms Station, which, of course, was not so far as the cattle dealer 
 expected them to go. At this intermediate station they remained, 
 and suffered injury from not being fed or looked after properly. 
 The company's view was that the consignment note was conclu- 
 sive evidence of the terms of the contract, and therefore that they 
 had never undertaken to carry beyond the Nine Elms Station. 
 But for the cattle-dealer it was successfully contended that the 
 consignment note did not constitute, a complete contract, and that parol 
 evidence could be given of the conversation that had taken place 
 between the plaintiff and the company's servants before the con- 
 signment note was signed (d). 
 
 On the other hand, when a writing appears to be a complete 
 contract, oral evidence to vary it is inadmissible. In Evans v. 
 Roe (e) for instance, a memorandum in writing by which the 
 plaintiff agreed to become foreman of the defendant's works was 
 construed to show a weekly hiring, and it was held that evidence 
 of a conversati6n, at the time of signing the contract, tending to 
 show that a yearly hiring was intended, could not be given. 
 
 There are other cases, however, in which parol evidence may 
 be given, notwithstanding that there is a written contract. 
 
 Separate oral "The existence of any separate oral agreement as to any mat- 
 agreement, ter on which a document is silent, and which is not inconsistent 
 with its terms, if from the circumstances of the case the court 
 infers that the parties did not intend the document to be a com- 
 plete and final statement of the whole of the transaction between 
 them" (/) may be proved, e.g., on the execution of a lease, an 
 oral promise by the lessor to keep down the game (g). 
 
 To show Moreover, oral evidence may be given to prove fraud or ille- 
 
 fraud, ille- gality, to show the situation of the parties, to ascertain the mean- 
 gality, &c. j Q g Q f iii e gi D i e or unintelligible characters, to explain technical 
 or provincial expressions, to bring in usage of trade, to identify 
 the subject-matter, to introduce a principal not named in the con- 
 tract, and for a variety of similar purposes. 
 
 ' ' But evidence may not be given to show that common words, the 
 meaning of which is plain, and which do not appear from the con- 
 text to have been used in a peculiar sense, were in fact so used (/t). 
 
 Latent and ^ n important distinction as to when oral evidence can be given 
 
 (d) Malpas v. L. & S. W. Ry. (g) Morgan v. Griffith, L. R. 
 Co., L. R. 1 C. P. 336. 6 Ex. 70. 
 
 (e) L. R. 7 C. P. 138; and see (h) Steph. Dig. Ev. 92, and 
 Cato v. Thompson, 9 Q. B. D. 616. see Blackett v. Roy, Exch. Ass. 
 
 (/) Steph. Dig. Ev. 89. Co., 2 C- & J. 244.
 
 WRITTEN CONTRACTS AND ORAL EVIDENCE. 37 
 
 to affect a written instrument, and when it cannot, is between a patent 
 
 latent and a patent ambiguity. A latent abiguity is not apparent ambiguities. 
 
 on the face of the instrument. The document seems to the 
 
 stranger reading it to be plain and simple enough; but, really, 
 
 there are two states of fact equally answering to the instrument. 
 
 To correct such an ambiguity, and show what was intended, 
 
 parol evidence is admissible. Thus, where a devise was to 
 
 Stokeham Huthwaite, second son of John Huthwaite, whereas 
 
 realty Stokeham Huthwaite was the third son, evidence of the 
 
 surrounding circumstances was admitted to show whether the 
 
 testator had made a mistake in the name or in the description (•/). 
 
 But parol evidence cannot be given to correct a patent ambiguity. 
 
 Thus, in a case where a bill of exchange had been drawn for 
 
 "Two hundred pounds," but the figuresatthe top were " £245," 
 
 and the stamp corresponded to the higher amount, evidence was 
 
 not admitted to show that £245 was really the sum intended (k). 
 
 In the well known case of Doe v. Needs (/) a man had devised one Doe v. Needs. 
 
 house to George Gord, the son of George Gord, a second to George 
 
 Gord, the son of John Gord, and a third to " George, the son of 
 
 Gord.' 1 ' 1 Evidence was admitted to show that the testator really 
 
 meant George, the son of George Gord. To the reception of such 
 
 evidence it was objected that the ambiguity was patent. But it 
 
 was answered that it could only appear ambiguous by showing 
 
 aliunde the non-existence of a George, the son of Gord, different 
 
 from the other two Georges; and that the mention of another 
 
 George in the same will had no other effect than extrinsic proof 
 
 of the same fact would have had. 
 
 Though parol evidence may rarely be given to vary a written ^. , . , 
 contract, it may generally be given to rescind it altogether; and t rescind, 
 the better opinion is that this is so even where the contract is one 
 of those which are required by statute to be in writing (m). But 
 a coutract in writing good under the Statute of Frauds is not re- 
 scinded by a subsequent invalid oral contract intended to be sub- 
 stituted for the former one (n). 
 
 A deed cannot be varied ordischarged except by another deed (o). 
 But, in action to recover unliquidated damages for breach of a con- 
 tract under seal, accord and satisfaction after breach is a good plea. 
 
 (/) Doe d. Le Chevalier v. (n) Noble v. Ward, L. R. 2 
 Huthwaite, 3 B. & A. 632. Ex. 135, and Moore v. Camp- 
 
 (k) Sanderson v. Piper, 5 bell, 10 Ex. 323. 
 Bing. N. C. 425, (o) West v. Blakeway, 2 M. 
 
 (/) 2 M. & W. 129. & G. 729. 
 
 (m) Goman v. Salisbury, 1 
 Vern. 240.
 
 38 WRITTEN CONTRACTS AND ORAL EVIDENCE. 
 
 Written Contracts and Evidence of Usage. 
 
 [18.] -WIGGLESWORTH r. D ALLISON. 
 
 [1 Doug. 200 (1779).] 
 
 By lease dated March 2d, 1753, Dallison let Farmer 
 Wigglesworth have a held in Lincolnshire for 21 years. 
 In the.last year of his tenancy, though he knew that he 
 had to give up the land almost immediately, the farmer 
 sowed his field with corn. In doing what might seem 
 a rash and improvident act, Mr. Wigglesworth was rely- 
 ing on a certain local custom, which entitled an outgoing 
 tenant of lands to his way-going crop, that is, to the corn 
 left standing and growing at the expiration of the lease. 
 Dallison's answer to this claim was that, if any such cus- 
 tom existed at all, it had no application to the present 
 case, where the terms between landlord and tenant had 
 been carefully drawn up in a lease by de<ed, and no men- 
 tion made therein of any custom. The court, however, 
 decided in favour of the custom, Lord Mansfield re- 
 marking that, while it was just and reasonable and for 
 the benefit of agriculture, it did not alter or contradict 
 the agreement in the lease, but only superadded a right. 
 
 Custon can- Parol evidence of the custom of a particular place or trade can- 
 not vary not be given to vary a written contract, if the terms of the con- 
 written con- tract are perfectly clear and exhaustive (and whether they are 
 so is for the court, and not for the jury, to decide) (p) the maxim, 
 exprcssum focit ccssare taciturn has application. In one case it ap- 
 peared that by the custom of the country the out-going tenant 
 was entitled to an allowance for folage from the incoming tenant 
 This, therefore, if the lease had been silent on the subject, would 
 have had to be paid. But the lease was not silent. It particu- 
 larly specified the payments which were to be made by the in- 
 coming to the outgoing tenant, and amongst them it did not men- 
 tion any payment in respect, of folage. It was held, therefore, that 
 
 (p) Bowes v. Shand, 2 App. Ca. 455. 
 
 tract.
 
 WRITTEN CONTRACTS AND ORAL EVIDENCE. 39 
 
 the terms of the lease were perfectly clear, and excluded the cus- 
 tom (q). " Where there is a written agreement between the par- 
 ties," said Bayley, J., "it is naturally to he expected that it 
 will contain all the terms of their bargain; but if it is entirely 
 silent as to the terms of quitting, it may let in the custom of the 
 country as to that particular. If, however, it specifies any of 
 those terms, we must then go by the lease alone. The custom 
 of the country applies to those cases only where the specific terms 
 are unknown; and it is founded on this principle, that justice 
 requires that a party should quit upon the same terms as he en- 
 tered. ' ' 
 
 So, too, in mercantile contracts. If you insure a ship and cargo 
 for a voyage, and the terms of the policy are that "the insur- 
 ance on the ship shall continue till she is moored 24 hours, and 
 on the goods till safely landed," and your ship reaches the haven, 
 and has been moored the 24 hours, and then afterwards, and be- 
 fore being landed, the goods are lost, the insurance people will not 
 be allowed to cheat you by showing a custom that the risk on the 
 goods as well as on the ship expires in 24 hours; why, you expressly^ 
 stipulated that ship and cargo should stand on different footings; 
 and are entitled to the benefit of your foresight, all the customs 
 in the universe notwithstanding (r). Similarly, when a man in 
 the pig trade sold what he warranted to be "prime singed Our "prime 
 bacon," but which proved to be neither palatable nor fragrant, signed 
 lie was not permitted to turn round and produce a convenient Dacou - 
 custom in his trade to the effect that "prime singed bacon " is 
 prime singed bacon none the less because it happens to be very 
 much tainted (s). So, in the recent case of Hayton v. Irwin (t), 
 where by the terms of a charter-party a ship was to deliver at 
 Hamburg, "or so near thereto as .she could safely get," it was 
 held that a defence alleging that by the custom of the Port of 
 Hamburg the charterer was not bound to take delivery elsewhere 
 than at Hamburg was bad, inasmuch as it sought to set up a cus- 
 tom inconsistent with the written contract. 
 
 But though written contract cannot be varied by evidence of But may ex- 
 the custom of a particular trade or place, it may be explained P* am or 
 thereby, and it may have incidents annexed. 
 
 (1.) It may be explained. Evidence has been admitted to show 
 that the Gulf of Finland, though not geographically so, was al- 
 ways considered by merchants as part of the Baltic («) ; that 
 " good barley " and " fine barley " were different things (,v) ; that 
 1000 rabbits meant 1200 (y) ; and that, when a young lady was 
 
 (q) Webb v. Plummer, 2 B. & (it) Ulide v. Walters, 3 Camp. 
 
 Aid. 746. 16. 
 
 (r) Parkinson v. Collier, Park (x) Hutchinson v. Bowker, 5 
 
 Ins., 7th ed. p. 470. M. & W. 535. 
 
 (s) Yates v. Pym, 6 Taunt. (y) Smith v. Wilson, 3 B. & 
 
 446. Ad. 728. 
 
 (/) 5 C. P. D. 130.
 
 40 
 
 WRITTEN CONTRACTS AND ORAL EVIDENCE. 
 
 Custom to 
 take holi- 
 days. 
 
 Stock Ex- 
 change us- 
 ages. 
 
 Requisites of 
 custom. 
 
 Dancing in 
 somebody 
 else's field. 
 
 Exercising 
 horses. 
 
 Selling flint 
 stones turned 
 in ploughing. 
 
 engaged as an actress for "three years," the three years meant 
 only the theatrical seasons of those years (z). 
 
 (2.) Incidents may be annexed. The leading case is an excellent 
 illustration here. So is Reg. v. Stoke upon Trent (a), where it 
 was held that where some workmen by written contract engaged 
 themselves "to lose no time on our own account, to do our work 
 well and behave ourselves in every respect as good servants," 
 evidence might nevertheless be given of a custom in the particu- 
 lar trade for the workmen to have certain holidays in the year, 
 and the Sundays to themselves. The principle on which inci- 
 dents are allowed to be annexed to written contracts is that the 
 parties did not mean to express in writing the whole of the contract 
 by which they intended to be bound, but to contract with refer- 
 ence to certain known usages. 
 
 * Except when the mode of dealing is that of a particular house, 
 such as Lloyd's (in which case he must be proved to have been 
 acquainted with it) (b), a man is bound by the usages of the 
 place or trade with which his contract has to do, and his igno- 
 rance of those usages is immaterial. A man, for instance, who 
 employs a broker on the Stock Exchange is bound by the usages 
 of the Stock Exchange (c) ; and a man in London who authorizes 
 another to contract for him at Liverpool is bound by the Liver- 
 pool usages. 
 
 To make a particular custom good, it must be immemorial, 
 continued peaceable, reasonable, certain, compulsory, and not in- 
 consistent. Reasonableness is a question of law for the court. 
 In Hall v. Nottingham (d), it was held that a custom for the in- 
 habitants of a parish to enter on a person's field in the parish, put 
 up a maypole, dance, play at kiss in the ring, and otherwise en- 
 joy themselves, at any time in the year, in defiance of the pro- 
 prietor, was good. But in the previous case of Sowerby v. Cole- 
 man (e) it had been held that a custom for inhabitants of a parish 
 to train and exercise horses at all seasonable times of the year in 
 a place beyond the limits of the parish was bad. And in another 
 recent case (/) it was held that a custom that an outgoing ten- 
 ant should look, not to the landlord, but to the incoming tenant, 
 for payment for seeds, tillages, &c, could not be supported, for it 
 was " unreasonable, uncertain and prejudicial to the interests 
 both of landlords and tenants." In Tucker v. Linger (g) it was 
 held that a custom universal in the chalk districts for the tenant 
 
 (z) Grant v. Maddox, 15 M. 
 & W. 737. 
 
 (a) 5 Q. B. 303. 
 
 (b) Gabay v. Lloyd, 3 B. & C. 
 797. 
 
 (e) Sutton v. Tat ham, 10 Ad. 
 & E. 27 ; and Bayliffe v. Butter- 
 worth, 1 Ex. 425. But see 
 Neilson v. James, 9 Q. B. D. 
 
 546. 
 
 (d) 1 Ex. Div. 1. 
 
 (<?) L. R. 2 Ex. 96. 
 
 ( f ) Bradburn v. Foley, 3 C. 
 P. D. 129. 
 
 (g) 51 L. J. Ch. 713 ; and see 
 Goodman v. Saltash, 7 App. Ca. 
 633, an oyster case from Corn- 
 wall.
 
 WRITTEN CONTRACTS AND ORAL EVIDENCE. 4-1 
 
 of a farm to sell the flint stones turned up in ploughing was 
 reasonable, and could be proved, notwithstanding an agreement 
 reserving to the landlord "all mines, minerals, quarries of stone 
 sand, brick-earth, and gravel." " It is good for the land," said 
 Jessel, M.R., "that the flints should be removed, and it appears 
 to me not unreasonable that the tenant who has to remove them 
 as injurious to the land should sell them for his own benefit. I 
 think the court should not interfere with a custom of the coun- 
 try except upon very strong grounds. ' ' 
 
 Bailments. 
 
 COGGS v. BERNARD. 
 
 [2 Ld. Raym. 909 (1704).] 
 
 Coggs required several hogsheads of brandy to be 
 moved from one London cellar to another. Instead of 
 employing a regular porter to do the job, he accepted 
 the gratuitous services of his friend Bernard, who under- 
 took to effect the removal safely and securely. But the 
 amateur did his work so clumsily that one of the casks 
 was staved, and much of the liquor was lost. Coggs 
 was not pleased; and, as he successfully maintained an 
 action against Bernard for damages, probably that gen- 
 tleman never again volunteered rash acts of friendship. 
 
 [19.] 
 
 WILSON v. BRETT. [20.] 
 
 [11 M. and W. 113 (1843).] 
 
 A person who rides ahorse gratuitously at the owner's 
 request for the purpose of showing him for sale is bound, 
 in so doiDg, to use such skill as he actually possesses. 
 "The defendant," said Parke, B., "was shown to be a 
 person conversant with horses, and was therefore bound 
 to use such skill as a person conversant with horses might
 
 42 
 
 BAILMENTS. 
 
 reasonably be expected to use: 
 guilty of negligence." 
 
 if he did not, he was 
 
 Definition. 
 
 I^ord Holt's 
 division. 
 
 Our division. 
 
 Deposit um. 
 
 Vigilance of 
 bailor. 
 
 Mandatum. 
 
 Coggs v. Bernard is the great case on Bailments. A bailment 
 is a delivery of a thing in trust for some special case, the person 
 who delivers it being called the bailor, and the person to whom 
 it is delivered the bailee. 
 
 Lord Holt divides bailments into six kinds: — depositum, manda- 
 tum, commodatum, vadium, locatio rci and locaiio operis fac^endi. 
 But it is better to begin with this classification of bailments: — 
 
 1. For the benefit of the bailor, alone, 
 
 2. For the benefit of the bailee, alone, 
 
 3. For the mutual benefit, of bailor and bailee. 
 
 1. Under the first head come depositum and mandatum. 
 
 Depositum — the delivery of goods to be taken care of for the bailor 
 without the bailee receiving anything for his trouble; e. g., going 
 away from home to the sea-side, I ask my friend Brown to take 
 care of my plate. The depositary (unless he has spontaneously 
 offered to take care of the goods) is responsible only for gross neg- 
 ligence. But, having been grossly negligent, he cannot defend 
 himself by showing that he has lost his own things with the bailor' 1 s (h). 
 
 The bailor must exercise a certain amount of vigilance in the 
 selection of his bailee. If I were to entrust my watch to an idiot, 
 or a little girl, to take care of, no amount of negligence on their 
 part would give me a right of action against them. I must bear 
 the consequences of my folly, and be more sensible next time. 
 
 As a rule, the depositary may not make use of the thing depos- 
 ited. But, if no harm would come thereby, he may: and, if I 
 "deposit " my horse with a man, he not only may but ought to 
 give it proper exercise. 
 
 The depositary must give up the thing deposited to the owner, 
 even though a stranger, on demand (i). 
 
 3landatum — the delivery of goods to be done something with for 
 the bailor without the bailee receiving anything for his trouble 
 e. g.,\ ask my friend Jones to post a letter for me. 
 
 As in depositum (and mandatum is only a kind of superior deposi- 
 tum) the bailee is liable for gross negligence only. The contract 
 between Coggs and Bernard was one of mandatum, though it is to 
 be observed that Bernard laid additional responsibility on his 
 shoulders by undertaking to effect the removal "safely." In the 
 well known case of Dartnell v. Howard (A-) the action was brought 
 
 (h) Doorman v. Jenkins, 2 
 Ad. & E. 258. 
 
 (i) Buxton v. Baughan, 6 C. 
 & P. 674, and Biddle v. Bond, 6 
 B. & S. 225. 
 
 (k) 4 B. & C. 345, and see 
 Wilkinson v. Coverdale, 1 Esp. 
 75, and Robinson v. Ward, R, 
 & M. 274.
 
 BAILMENTS. 43 
 
 for negligently laying out money on bad securities. The defend- 
 ants had (so far as appeared from the pleadings) acted in the mat- 
 ter gratuitously, and on this ground it was held that the plaintiffs 
 were not entitled to recover damages from them. 
 
 The rule, however, that a mandatary is responsible for gross Skilled man- 
 negligence only, is to some extent qualified by the maxim spondee datarics. 
 peritiam artis. It is stated in the narrative that gross negligence 
 was not imputed to Brett. Literally, this is true. But what is 
 ordinary negligence in one man is gross negligence in another; and 
 the omission by a person endowed with skill to make use of that 
 skill is really nothing short of gross negligence. In this view, 
 Wilson v. Brett is no exception to the rule that a gratuitous bailee 
 is responsible only for gross negligence ; constructively, Brett was 
 guilty of gross negligence. So, too, a doctor who attended a poor 
 person out of charity would be liable for merely ordinary negli- 
 gence in the treatment of his patient ; constructively, it would not 
 be merely ordinary negligence, because his position implies 
 skill (/). • 
 
 An action cannot be brought on a promise to enter on a gratui- Considera- 
 tous bailment, there being no consideration for it. But if the won m man- 
 promisor actually sets about the business, he then becomes respon- ( a um ' 
 sible for gross negligence, the trust reposed in him by the bailor 
 being a sufficient consideration (m). 
 
 2. Under this head (for the benefit of the bailee alone) comes 
 
 Commodaium — the lending of a thing to be returned just as it is ; Commodatum. 
 e.g., I lend Jones my Umbrella to go through the rain with ; I 
 don't expect him to return me another umbrella, but the same one. 
 If I expected a borrower to return me, not the identical things, Mutuum. 
 but similar, e.g., if I were indiscreet enough to lend him half a 
 dozen postage stamps, or a five pound note, it would not be com- 
 modatum, but mutuum. 
 
 As the bailee is the only person who gets any good out of com- 
 modatum (except perhaps a lawyer now and then), he is responsi- 
 ble even for slight negligence : the more so as by the fact of bor- 
 rowing he may be taken to have represented himself to the lender 
 as a fit and proper person to be entrusted with a valuable article. 
 
 The commodatary must strictly pursue the terms of the loan. Duties of 
 If I borrow a horse or a book to ride or to read myself, I have no borrower, 
 business to allow somebody else to ride or to read it (n). If the 
 horse is lent for the highway, I must not take it along dangerous 
 bridle paths. The bailee must restore the chattel, when the time 
 
 (I) Shiellst'. Blackburne, 1 H. tion taken by North, C. J., in 
 
 Bl. 158. Bringloe v. Morrice, 1 Mod. 210, 
 
 (m) Elsee v. Gatward, 5T. R. between lendingahorsetoaper- 
 
 148. son for ^.specified time and lend- 
 
 (n) See. however, a distinc- ing it for a particular journey.
 
 44 BAILMENTS. 
 
 has expired, just as it was, reasonable wear and tear excepted. 
 He is not responsible, however, if the article perishes by inevita- 
 ble accident, or by its being stolen from him without any fault of 
 his. In mutuum, on the other hand, the right of property and 
 risk of loss are immediately on the bailment transferred to the 
 borrower, so that if he is' robbed before he gets home, he must 
 still pay the equivalent to the lender. 
 Duties of ^ e ^ a ^ or rnust disclose defects of which he is aware ; as, for 
 
 lender. instance, that the gun which he lends his friend Brown is more 
 
 likely than not to burst and blow his hand off (o). The ground of 
 this obligation is that, token a person lends, he ought to confer a 
 benefit, and not to do a mischief (p). The lender, however, will 
 not be responsible for defects of which he is ignorant (q). 
 
 The commodatary has no lien on the thing lent for antecedent 
 debts due to him; nor, of course, can he keep it till the bailor pays 
 the necessary expenses he has been put to in the keeping of it. 
 
 3. Under the last head (for the mutual benefit of bailor and 
 bailee) come vadium, locatio rei, and locatio operis. 
 Vadium. (1-) Vadium (otherwise known as pignoris acceptum) , the con- 
 
 tract of pawn. 
 
 The benefit being mutual, the degree of diligence required of 
 the bailee is <; ordinary." If, in spite of due diligence, the chat- 
 tel is lost while in the pawnee's keeping, he may still sue the 
 pawner for the amount of his debt. • 
 
 Pawning at The effect of the contract of pawn is not (like that of a mort- 
 common law. gage of personalty) to pass the property in the chattel to the 
 bailee ; nor, on the other hand, is it (like that of a lien) merely 
 to give him a hostage, but it gives him such a special property 
 in the thing pawned as enables him, if the pawner makes default, 
 to sell it and pay himself (r) ; the surplus being, of course, handed 
 back to the pawnor. 
 
 As a rule, the pawnee may not make use of the thing bailed to 
 him. If, however, it is an article which cannot be the worse for 
 the use — jewellery, for instance — he may ; but in such a case he 
 would be responsible for the loss, no matter how it happened. 
 Moreover, if the pawn be of such a nature that the pawnee is 
 put to expense to keep it, e.g., if it be a horse or a cow, the 
 pawnee may make use of it, — riding the horse or milking the 
 cow — as a recompense for the cost of maintenance. 
 T} p , Such are some of the common law rules as to vadium ; and they 
 
 brokers' Act. apply now to cases where the sum lentexceeds £10. But when the 
 
 (o) Blakemore v. Brist. & Ex. (q) MacCarthy v. Young, 6 H. 
 
 Ry. Co., 8 E. & B. 1035. & N. 329. 
 
 (p) Adjuvariquippenos, non (r) Tucker v. Wilson, 1 P. 
 
 decipi, beneficio oportet. Dig. Wms. 260 ; but see Clarke t>. 
 
 Lib. xiii, tit. vi. 17. Gilbert, 2 Bing. N. C. 356.
 
 BAILMENTS. 45 
 
 sum lent by way of vadium is less than £10, the Pawnbroker's 
 Act, 1872 (s), applies. That Act provides that every pledge must 
 be redeemed within twelve months and seven days. If it is not 
 redeemed within that time, what becomes of it depends on whether 
 the sum lent was more or less than 10s. If it was 10s. or less, the 
 article then becomes the pawnbroker's absolute property. If it 
 was more, the pawnbroker may sell the thing pledged, but must 
 hand over the surplus, after satisfaction of his debt and interest, 
 to the pawnor. Till actual sale, however, a pledge pawned for above 
 10s. is redeemable, though the year and seven days have gone by 
 (t). The pawnbroker is liable lor loss by fire, and should protect 
 himself by insuring (u). He is liable, too, for any injury done to 
 the thing pawned by his ' ' default and neglect, or wilful misbe- 
 haviour," and a court of summary jurisdiction may order com- 
 pensation for such depreciation (a;). Section 25 says that "the 
 holder for the time being of a pawn-ticket shall be presumed to 
 be the person entitled to redeem the pledge, " but it has been held 
 in a recent case that the owner of an article that has been stolen 
 and pawned may (notwithstanding the sectionj recover it, or its 
 value, from the pawnbroker (y). 
 
 (2.) Locatio rei — the every day contract of the hiring of goods. Locatio rei. 
 
 This being a mutual benefit bailment, the degree of negligence 
 for which the hirer is answerable is "ordinary." The hirer of a 
 horse once physicked it himself, instead of calling in a veterinary 
 surgeon. He prescribed "a stimulating dose of opium and gin- 
 ger," and of course the animal "soon after takingit died in great 
 agony." On the ground that he had not exercised "that degree 
 of care which might be expected from a prudent man towards his 
 own horse," the hirer was held liable (z). 
 
 If the hirer does something plainly inconsistent with the terms 
 of the bailment, e.g., if he sells the article hired, the bailment is 
 at an end («). 
 
 It may be mentioned here that what is called the hire system, 
 under which goods are delivered to a person to be paid for by in- 
 stalments, does not vest the property in the goods in the pur- 
 chaser till all the instalments are paid (b). 
 
 (3.) Locatio operis faeiendi. When the bailee is to bestow labour Locatio operia 
 on or about the thing bailed, and to be paid for such labour. faeiendi. 
 
 Bailees of this class are, for instance, wharfingers, agisters, car- 
 riers, &c. 
 
 Generally speaking, the rule as to diligence is the same as in 
 
 (s) 35 & 36 Vict. c. 93. (z) Deane v. Keate, 3 Camp. 4. 
 
 (/) Sec. 18. (a) Fenn v. Bittlestone, 7 Ex. 
 
 (w) Sec. 27. 159. 
 
 (x) Sec. 28. (b) Ex parte Crawcour, 9 Ch. 
 (y) Singer Manufacturing Co. Div. 420. 
 v. Clark, 49 L. J. Ex. 224. 
 5 COMMON LAW.
 
 46 BAILMENTS 
 
 vadium and locatio ret (c). But the bailee must have his wits about 
 him, and take proper precautions against casualties that may pos- 
 sibly happen (d) and when the bailee is a person exercising a pub- 
 lic employment, e.g., a common carrier or an innkeeper, he is re- 
 quired to exert much greater circumspection. In fact, a common 
 carrier is an insurer, being responsible for loss by any cause except 
 the act of God or the king's enemies. Moreover, if a bailee elects 
 to deal with the property entrusted to him in a way not authorized 
 by the bailor (e.g., if, having contracted to warehouse goods at one 
 place, he warehouses them at another, where they are accidentally 
 destroyed) betakes upon himself the risks of so doing (e). 
 
 An agister, (e.g.. a person who takes in horses or cattle to feed 
 in his pasture) is not an insurer, but must use reasonable care (/). 
 For instance, if he leaves the gates of his field open, or his fences 
 are out of order, he will be liable for loss happening thereby (g). 
 So if he has not taken proper precautions to prevent mischief, he 
 will be liable for an injury inflicted by another animal (h). In 
 the absence of agreement, an agister has no lien (i). 
 
 In Clarke v. Earnshaw (j) the plaintiff had delivered a time- 
 piece to the defendant, a watchmaker, to be repaired. The watch- 
 maker had locked it up in a drawer in his shop, from which it was 
 stolen by a youth who used to sleep in the shop for the express pur- 
 pose of protecting the property. The defendant was held liable be- 
 cause it appeared that he had put other watches in a more secure 
 place. 
 
 Trover -^ s t° the right to maintain trover in these bailments itmay be 
 
 remarked that in radium and locatio rei it is only the bailee who 
 can do so; for in either of those contracts he can exclude the bailor 
 from the possession. But in the other kinds of bailment either 
 bailor or bailee may sue, but the recovery of damages by either 
 would deprive the other of his right of action. 
 
 Vituperative The terms "gross negligence," "ordinary negligence," &c, 
 epithets. have been freely used in speaking of these bailments. Many emi- 
 
 nent lawyers, however, maintain that there are really no degrees 
 of negligence, and that, as Rolfe, B., said in Wilson v. Brett, 
 negligence and gross negligence are "the same thing, with the 
 addition of a vituperative epithet." 
 
 (c) See Searle v. Laverick, L. (g) Groueottr. Williams. 32 L. 
 
 R. 9 Q. B. 122. J., Q. B. 237. 
 
 {d) Leek v. Maestaer, 1 Camp. (h) Smith v. Cook, 1 Q. B. D. 
 
 138; and see Thomas v. Day, 4 79. 
 
 Esp. 262. (i) Jackson v. Cummins, 5 M. 
 
 (e) Lilley v. Doubleday, 7 Q. & W. 342, and Richards v. Sy- 
 
 B. D. 510. mons, 8 Q. B. 90. 
 
 (/) Broadwater v. Blot, Holt, [j) Gow, 30. 
 547.
 
 INNKEEPERS. 47 
 
 Liability of Innkeepers. 
 
 CALYE'S CASK [21.] 
 
 [8 Coke 33 (1584).] 
 
 A traveller arriving at an inn dismounted from his 
 horse, and told the landlord to send it out to pasture. 
 The landlord, accordingly, did so; but, when its master 
 wished to resume his journey, it was nowhere to be 
 found. The owner now tried to make out that the 
 landlord was responsible. But it was held that he was 
 not, for the horse had been sent to the field at the ex- 
 press desire of the guest. 
 
 The liability of innkeepers, like that of common carriers, prob- Common law 
 ably had its origin in their readiness to collude with highway- liability, 
 man, often their best customers. That liability was at common 
 law very great. They were not indeed responsible for losses 
 arising by the act of God or the king's enemies, but they were 
 responsible for all other losses, unless they could make out clearly 
 that it was the guest's own fault. In 1863, however, the liabil- ^ c ^ f 1863. 
 ity of innkeepers was greatly restricted, and by the Act then 
 passed (k) an innkeeper is never bound to pay more than £30 for 
 loss of or injury to property brought to his inn, except in the fol- 
 lowing cases: — 
 
 1. Where the article which has been lost or injured is " a Horse or 
 horse or other live animal, or any gear appertaining thereto, or carnage, 
 any carriage. ' ' 
 
 2. Where the property has been stolen, lost, or injured through "Wilful 
 the wilful act, default, or neglect of the innkeeper, or of one of act, default 
 his servants. * or neglect" 
 
 3. Where the property has been expressly deposited with him Deposit, 
 for safe custody. The innke»per, however, may require, as a 
 condition of his liability, that the guest shall fasten and seal up 
 
 his property in a box or other receptacle. 
 
 But the innkeeper is not to be entitled to the benefit of this Posting np 
 Act unless he puts up a copy of section 1, printed in plain type, section 1. 
 in a conspicuous part of his entrance-hall, and he had better take 
 care not to omit material parts of the section, or play other 
 
 {k) 26 & 27 Vict. c. 41.
 
 48 INNKEEPEBS. 
 
 pranks with the Act, for the courts have shown clearly that they 
 will not allow innkeepers to trifle with it. The landlord of the 
 " Old Ship " at Brighton posted up what purported to he a copy 
 of section 1. But through some mistake the word "act" was 
 left out, so that the sentence ran "wilful default or neglect" 
 instead of " wilful act, default or neglect." A gentleman stay- 
 ing at the hotel in November, 1875, had his watch and things 
 stolen during the night, and went to law with the landlord to re- 
 cover their value. The defendant paid £30 into court, but said 
 that the Act protected him against any further claim. But it 
 was held that, as he had not posted up a correct copy of section 
 1, he was not entitled to the benefit of the Act (/). " We have 
 an omission," said Cockburn, C. J., " which is far beyond a mere 
 clerical error. It is an omission of a substantial part of the 
 notice. When we have an omission of a material and really sub- 
 stantial part of the notice required by statute, I cannot think it 
 a copy sufficient to satisfy the requirements of the Act." 
 
 It may be mentioned that it has been held at nisi prim fin a 
 case from Ryde, where the real question appears to have been 
 whether the chambermaid's allowing a stranger to go up stairs 
 to wash his hands without accompanying him was an act of neg- 
 ligence) that th". word "xti/fiil'' in the first section applies only to 
 the following word "act" and not to the next following words 
 " default or neglect " (m). 
 
 Supposing the innkeeper not to have complied with the condi- 
 tions of this Act, his liability remains the same as at common 
 law, almost his only defence being to show that his guest has 
 been negligent. The question of the guest's negligence must in 
 all cases depend upon the surrounding circumstances (»). If he has 
 not used the ordinary care which may reasonably be expected 
 from a prudent man, he cannot make the innkeeper responsible 
 for the loss of his goods. In Armistead v. Wilde (o), for instance, 
 there had been an ostentatious display of bank notes, with a 
 good deal of bragging, and the guest had let everybody see that 
 he put the notes in an ill secured box. " These facts," said 
 Lord Campbell, C.J., "might or might not amount to negli- 
 gence, but they were evidence of it; and it was a fair question 
 for the jury." The omission by the guest to leave valuable arti- 
 cles with the innkeeper, or to fasten his bedroom door at night, 
 is not necessarily negligence (p). It may or may not be accord- 
 ing to the circumstances. What would be prudent in a small 
 hotel in a small town might be the extreme of imprudence at a 
 
 (I) Spice v. Bacon, 2 Ex. Div. v. Markwell, 45 L. T., N. S., 
 
 463. 649. 
 
 (m) Squire v. Wheeler, 16 L. (o) 17 Q. B. 261. 
 T. N. S. 93. (p) Morgan v. Eavey, 6 H. 
 
 (n) Per Lopes, J., in Herbert & N. 265.
 
 INNKEEPERS. 49 
 
 large hotel in a city like Bristol, where probably 300 bedrooms 
 are occupied by people of all sorts (q). See also the cases of 
 Cashill v. Wright (watch and money stolen from bedroom), 6 E. 
 & B. 891, and Burgess v. Clements (jewellery stolen from private 
 room left unlocked at an Oxford inn), 4 M. & S. 306. 
 
 If a guest refuses to pay the reckoning, the landlord has a lien Inn-keeper's 
 on the luggage and belongings which he brought to tbe inn, ^ en - 
 whether they are the man's own or not, and, if the bill is not 
 settled in six weeks, may sell them, handing back any surplus 
 there may be (r). He is required to advertise the sale a month 
 beforehand in a London and local newspaper. In the recent case 
 of Angus v. McLachlan (s) it was held that an innkeeper who ac- 
 cepts security from his guest for the payment of his charges does 
 notthereby waive his lien. "As I understand the law. "said Kay, 
 J., "it is not the mere taking of asecurity which destroys the lien, 
 but there must be something in the facts of the case, or in the 
 nature of the security taken, which is inconsistent with the ex- 
 istence of the lien, and which is destructive of it. In this case 
 the lien is within the provisions of 41 & 42 Vict. c. 38, by virtue 
 of which the innkeeper not only has a passive lien, but also the 
 active right to sell the goods upon giving the notice required by 
 the Act. Is it probable that he would have giveh up this active 
 lien ? . . . . There is nothing in the case inconsistent with * 
 the continuance of the lien which the plaintiff undoubtedly had 
 before the security was given." It was also held in this case that 
 an innkeeper keeping his guest's goods under his lien need not 
 use more care about their custody than he uses as to his own 
 things of a similar kind. An innkeeper may not detain the per- 
 son of his guest for non-payment of his bill. 
 
 authority. 
 
 It was said in Calye's case that, if the landlord had sent the Sending 
 horse into the field without his guest's authority, he would have horse to pas- 
 been responsible. Such a case has actually occurred. A Bewd- ™ without 
 ley innkeeper, whose coach-house was full, put a guest's gig into 
 the adjoining street without saying a word to him on the subject. 
 The gig was stolen, and the owner sued the innkeeper, who was 
 held liable on the ground that he had chosen to treat the street 
 as part of the inn (t). 
 
 An action for the loss of goods at a hotel must be brought 
 against the person really carrying on the business, not against a 
 paid manager, although the justices' licence may have been 
 granted in his name (u). 
 
 (q) Per Montagu Smith, J., in Cowell v. Simpson, 16 Ves. 275. 
 
 Oppenheim v. White Lion Co., (0 Jones v. Tyler, 1 Ad. & 
 
 L. H. 6 C. P. 515. E. 522. 
 
 (r) 41 & 42 Vict. c. 38. (u) Dixon t). Birch, L. E. 8 
 
 (s) 23 Ch. Div. 330, and see Ex. 135.
 
 50 INNKEEPERS. 
 
 Definition of ^n * nn ^ as been defined as "a house where the traveller isfur- 
 inn. nished with everything he has occasion for while on his way" (a:). 
 
 "Whoe'er has travell'd life's dull round, 
 Where'er his stages may have been, 
 May sigh to think he still has found 
 The warmest welcome at an inn." 
 
 Per Shenstone, C. J. 
 
 A coffee house where there are beds may be such a place; but not 
 a lodging or boarding house: and it has lately been decided, in a 
 case where a man had insisted on entering accompanied by an 
 offensive dog, that a refreshment bar attached to a hotel, under 
 the same roof but with a separate entrance, is not {y). Any 
 traveller (not being a thief or prostitute, or constable on duty, or 
 having a contagious disease, or being some other essentially ob- 
 jectionable person) who is ready to pay for his accommodation, 
 and conducts himself properly, can claim admission into an inn, 
 if there is room, at any hour of the day or night; and if the 
 landlord refuses it, an action lies against him, or he may be in- 
 dicted (z). The mere purchase of temporary refreshment, or the 
 putting up of his horse, makes a man a guest, so as to raise the 
 innkeeper's responsibility (a). But it has been held that a tem- 
 porary waiter at a ball given at an inn is not a guest, and cannot 
 recover from the landlord the value of an overcoat heartlessly 
 stolen while he is discharging his important duties (b). 
 Stranss's In the recent case of Strauss v. The County Hotel Company (t) 
 
 case. the plaintiff had arrived at Carlisle and given his luggage to the 
 
 hotel porter with a view to staying at the hotel, when an impor- 
 tant telegram induced him to alter his intentions. He told the 
 porter to lock up the luggage, which was done: but afterwards 
 some of the property was found to be missing. It was held that 
 at the time of the loss of the plaintiff's goods there was no evi- 
 dence of the relation of landlord and guest, and therefore that 
 the defendants were not responsible. The liability of an inn- 
 keeper continues during the temporary absence of his guest (d) ; 
 but if a host invites one to supper, and, the night beingjar spent, 
 invites him to stay all night, if he is afterwards robbed, yet shall 
 not the host be charged (as an innkeeper), for this guest was no 
 traveller (e). 
 
 (x) Thompson v. Lacy, 3 B. & 269, and R. v. Ivens, 7 C. & P. 
 
 Aid. 283, where it was vigor- 213. 
 
 ously contended that the de- (a) Bennett v. Mellor, 5 T. R. 
 
 fendant's establishment was not 274, and York v. Grindstone, 1 
 
 an inn, because it was not fre- Salk. 388. 
 
 quented by stage coaches and (6) Carter v. Hobbs, 12 Mich, 
 
 waggons from the country, and 52. 
 
 • had no stables. (c) 12 Q. B. D. 27. 
 
 (y) R. v. Rymer, 2 Q. B. D. (d) Day v. Bather, 2 H. & C. 
 
 136. 14. 
 
 (z) Fell v. Knight, 8 M. & W. (e) Bac. Abr. Inns. c. 5.
 
 " PROPER VICE." 51 
 
 "Proper Vice." 
 
 BLOWER v. GREAT WESTERN RAILWAY CO. [22.] 
 
 [L. R. 7 C. P. 655 (1872).] 
 
 Mr. Blower had a bullock which he wanted to send by 
 railway from a small station near Monmouth to North- 
 ampton. The beast was duly loaded to Mr. Blower's 
 satisfaction in one of the Great Western Railway Com- 
 pany's trucks, but on the journey it managed to escape, 
 and got killed on the line. Admitting that the company 
 had not been at all negligent in the carrying of the ani- 
 mal, were they not liable as common carriers ? No; for 
 the disaster was due to the "inherent vice " of the sub- 
 ject of bailment. 
 
 The effect of this case is practically to introduce a third excep- Third ex- 
 tion to the rule that common carriers are insurers. They are to ception. 
 be excused not only when the loss has been occasioned by the 
 act of God or the King's enemies, but also if it has happened 
 through the inherent defect of the thing carried. 
 
 The leading case was followed in Nugent v. Smith (/), where 
 
 a horse, while being conveyed by sea from London to Aberdeen. 
 
 received fatal injuries through getting frightened at a storm. So, 
 
 too, a common carrier is not responsible for the deterioration of .. , 
 
 ' 1 articles, 
 
 perishable articles, or for the evaporation or leakage of liquids. 
 
 But in all such cases the carrier will be liable for his negligence. Gill's case. 
 About ten years ago a man sent a cow by train from Doncasterto 
 Sheffield. When it got to Sheffield a porter rather unadvisedly 
 released it, and it ran into a tunnel and was killed. The restive- 
 ness and stupidity of the cow was undoubtedly the real cause of 
 its death, but the porter ought not to have been in such a hurry 
 to let it out ; and on this latter ground his masters were held 
 responsible (g). 
 
 A carrier, again, will not be responsible for injury happening Bad packing. 
 through the improper packing of the subject of bailment ; at all 
 events, if he was not aware that it was packed improperly. Thus 
 it has been held that a railway company cannot be charged with 
 negligence if a greyhound escapes through the insufficiency of a 
 chain and collar supplied by the owner and appearing to be good 
 enough (h). 
 
 (/) 1 C. P. D. 423. (A) Richardson v. N. E. Ry. 
 
 (g) Gill v. M. S. & L. Ry. Co., Co., L. R. 7 C. P. 75. 
 L. R. 8 Q. B. 186.
 
 52 " PROPER VICE. 1 ' 
 
 Dangerous A person who delivers a dangerous substance to a common car- 
 
 goods, rier without giving him any information about it is responsible 
 
 for all the evil consequences arising therefrom (i). It has been 
 expressly provided by Act of Parliament (k) that a carrier is not 
 bound to receive such things. But a carrier cannot refuse to carry 
 a parcel merely on the ground that he is not informed of its con- 
 tents (I), 
 Common car- It is to be observed that common carriers are not necessarily 
 liers not gen- general carriers. To ascertain the nature and extent of a carrier's 
 era earners. k us j ness reference must be made to his public professions and 
 representations (m). 
 
 A common carrier is bound at common law to receive and carry 
 all goods reasonably offered to him and for the carrying of which 
 the person bringing the goods is ready to pay (n). In the ab- 
 sence of a special contract, he must deliver within a time that is 
 reasonable, regard being had to all the cixcunistances (o). Pro- 
 vided he carry by a reasonable route, he is not bound to carry by 
 the shortest, even though empowered by statute to charge a mile- 
 age rate for carriage (p), 
 
 Special Contracts with Carriers. 
 
 [23.] PEEK r. NORTH STAFFORDSHIRE RAILWAY CO. 
 
 [10 H. L. C. 443 (1863).] 
 
 Mr. Peek, of Stoke-upon-Trent, wanted to send some 
 marble chimney pieces from there to London, and to get 
 it done as cheaply as possible. With that view he opened 
 negotiations with an agent of the North Staffordshire 
 Railway Company. The agent said the company would 
 not be responsible for damage to the chimney-pieces Un- 
 less the value was declared, and they were insured at the 
 
 (?) Farrant v. Barnes, 11 C. B., (m) Johnson v. Midland Rly. 
 
 N. S., 553, which was the case Co.. 4 Exch. 367; and Oxladev. 
 
 of a carboy of nitric acid burst- N. E. By. Co., 15 C. B., N. S. 
 
 ing while being carried from 680. 
 
 London to Croydon and injuring (n) Pickford v. Grand Junct. 
 
 the plaintiff, "and see Brass v. Ry. Co., 8 M. & W. 372. 
 
 Maitland, 6 E. &B.470;andL. (o) Taylor v. G. N. Ry. Co., 
 
 J. 26 Q. B. 49. L. R. 1 C. P. 385. 
 
 (Jfc) 29 & 30 Vict. c. 69. (p) Myers v. L. & S. W. Ry. 
 
 (0 Crouch v. L. & N. W. Rly. Co., L. R. 5 C. P. 1. 
 Co., 14 C. B. 255.
 
 SPECIAL CONTRACTS WITH CARRIERS. 53 
 
 rate of 10 per cent, on the declared value. This rate 
 Peek considered too high, and finally he sent a note to 
 the agent requesting him to send the chimney-pieces 
 ''not insured." 
 
 The marble received injury on the journey through 
 exposure to rain and wet, and Peek now sought to make 
 the company responsible for the whole of the damage 
 done. 
 
 The two chief questions were — 
 
 1. Whether the condition was "just and reasonable;" 
 
 2. Whether there was a "special contract signed;" 
 and both these questions were decided in the plaintiff's 
 favour. 
 
 Before 1830 common carriers were accustomed to get rid of Public 
 their common law liability as insurers of the goods committed to no "Ce8. 
 them by posting up notices. If it could be shown that the notice 
 had come to the knowledge of the customer, he was presumed to 
 have assented to its terms, and the carrier was only liable in the 
 case of wilful misfeasance or gross negligence. 
 
 The efficacy of these public notices was destroyed in 1830 by the Land Car- 
 Land Carriers Act (q) ; but the Act reserved the carrier's right to riers Act - 
 make a special contract with his customer. The courts, however, 
 were in many instances very hard on the customers, holding, for 
 examine, that a notice put on the receipt given to a person deliv- 
 ering goods to be carried amounted to a special contract, and in 
 1854 further legislation was deemed to be necessary. In that year Railway and 
 was passed the Railway and Canal Traffic Act (»•), which still per- Canal Traffic 
 mits the making of special contracts, but provides that no one Act - 
 shall be bound by any such contract with a railway or canal com- 
 pany (1) unless he (or his agent) has signed it (s), and (2) it is "just 
 and reasonable. 1 ' 
 
 31 & 32 Vict. c. 119, s. 14, however, gives public notices a cer- Notices by 
 tain amount oi validity in the case of land and sea carriers. The land and sea 
 condition sought to be enforced must be published in a conspicu- carriers, 
 ous manner in the office where the through booking is effected, 
 and must also be printed in a legible manner on the receipt or 
 freight note given by the company. 
 
 Whether a condition is "just and reasonable." under section 7 "Just and 
 of the Railway and Canal Traffic Act is a question for the judge reasonable." 
 at the trial, subject, of course, to the review of the divisional and 
 higher courts. A condition which states that the company will 
 
 (q) 11 Geo. IV. & 1 Will. IV. would be binding on the com- 
 
 c. 68. pany. Baxendale v. G. E. Ry. 
 
 (r) 17 & 18 Vict. c. 31. Co., L. R. 4 Q. B. 224. 
 (s) But the unsigned contract
 
 54 
 
 SPECIAL CONTRACTS WITH CARRIERS. 
 
 Conditions 
 held bad. 
 
 Alternative 
 rates. 
 
 not be responsible for damage to horses, " however caused ," is unrea- 
 sonable and bad (t). So is one which disclaims responsibility for 
 a parcel insufficiently packed. So, too, in the recent case of Ash- 
 endan v. L. B. & S. C. Ry. Co. (w) (where an Italian greyhound 
 got lost on its way from Brighton to Rochester) a condition that 
 a railway company would not be liable ' Hn any case 7 ' for loss of, or 
 damage to, a horse or dog above certain specified values, unless the 
 value was declared, was held bad. But "if an owner of goods, to 
 whom the full protection of the Railway and Canal Traffic Act is 
 offered on reasonable terms, deliberately elects, for the valuable 
 consideration of a substantial reduction in the cost of carriage, to 
 agree to release the carriers from certain liabilities, he cannot es- 
 cape from the contract so entered into, unless he can show that 
 lie has been so far overreached in the transaction as to make the 
 agreement void at common law, or that the offer of the alternative 
 is a lraud upon the statute" (y). In the recent case of Brown v. 
 The Grimsby M. S. & L. Ry. Co, (z) a Grimsby fish merchant, in consideration 
 fish mer- f getting his fish taken to London at a cheaper rate, signed a 
 
 c an s case. con ^ rac ^ by w hich the rail w&y company were to be relieved "from 
 all liability for loss or damage by delay in transit, or from what- 
 ever other cause arising." It was held in the House of Lords 
 (reversing the decision of the Court of Appeal) that the contract 
 was reasonable, and relieved the company from liability for loss 
 through delay in transit caused by the negligence of their servants. 
 "The question," said Lord Watson, "as to what constitutes a 
 reasonable condition is not a question which judges can decide, 
 as against their successors, by anticipation ; it is a question of fact 
 in each case, depending upon the discretion of the judge who is 
 dealing with it, and, according to my view, not of law, and must 
 be judged of according to the circumstances in each case. No 
 doubt there are very many valuable suggestions in the case of 
 Peek v. The North Staffordshire Railway Company. But we are not 
 dealing with a case in its circumstances similar to that, accord- 
 ing to my apprehension of the facts of it, because there it was 
 held that the company had really proposed to exact a rate so high, 
 not for the honest and bond fide purpose of giving an alternative 
 to the trader, but solely with the view of giving no alternative 
 and compelling him to adopt one rate practically in preference to 
 another. I cannot see in the present case the least trace of that 
 compulsion. I cannot find anything in the character of this case 
 
 (t) M'Manusu. Lanc.& Yorks. 
 Ry. Co., 4 H. & N. 327. 
 
 (u) Simons v. G. W. Ry. Co., 
 18 C. B. 805. 
 
 (x) 5 Ex. Div. 190. 
 
 (if) Per Fitzgibbon. L.J., in 
 
 M'Nally v. Lane. & Yorks. Ry. 
 
 'Co., L. R. (Ir.) 8 Coram. Law, 
 
 1)3; and see Ruddy v. Midi. G. 
 
 a 
 
 W. Ry. Co., ib. 224. 
 
 (z) 53 L. J. Q. B. 124; and see 
 the recent case of Dickson v. G. 
 N. Ry. Co., 34 W. R. 457, where 
 a notice by a railway company 
 exempting themselves from lia- 
 bility for valuable dogs was held 
 just and reasonable.
 
 SPECIAL CONTRACTS WITH CARRIERS. 55 
 
 to suggest to my mind that the condition is unreasonahle. " 
 "Really," said Lord Bramwell, with characteristic straightfor- 
 wardness, "it is difficult for me to express the opinion which I 
 entertain upon this question with a sufficient apparent respect for 
 the opinion of those who have thought differently — namely, tho 
 learned judges in the court below. ... I must say that I 
 really do think this is about the plainest case that ever came before 
 ymir lordships' House." Certainly no one who reads the judgments 
 delivered in the House of Lords can doubt for a moment that the 
 Court of Appeal went wrong in the case of the Grimbsy fish mer- 
 chant. The reasons given by the House of Lprds were precisely 
 those which had already been given by Mathew and Cave, JJ., in 
 the Divisional Court, and one would think they were good enough 
 to satisfy the appetite of any litigant. 
 
 Amongst conditions that have been held to be "just and reason- Conditions 
 able," may be mentioned one, that a company shall not be liable Q ehi good. 
 for loss of market or other claim arising from delay or detention of 
 any train (a); another, placing the carriage of such perishable goods 
 as fish or fruit under special regulations (b); and a third, exempting 
 the company from liability for loss or damage to live stock from suffo- 
 cation, etc. (c). 
 
 In the recent case of Goldsmith v. The Great Eastern Railway Goldsmith'* 
 Company (d), clover seed was carried by the defendants "solely case, 
 at the risk of the sender, with the exception that the company 
 shall be responsible for any wilful act or wilful default of the 
 company." The goods were misdelivered, so that they did not 
 arrive at their proper destination till after a fortnight's delay. 
 It was held that there was nothing in the special contract to free 
 the defendants from their liability as carriers. 
 
 In another recent case (e) a man delivered some cattle to a railway Gordon's 
 company to be taken from Waterford to Gloucester, and prepaid case, 
 the carriage. The clerk, however, stupidly forgot to put "car- 
 riage paid" on the consignment note, and the consequence was 
 that delivery was refused at Gloucester till the mistake was recti- 
 fied, and the cattle had been for some time exposed to the weather. 
 According to the terms of the contract of carriage, the company, 
 in consideration of an alternative reduced rate, were "not to be 
 liable in respect of any loss or detention of, or injury to, the said 
 animals, or any of them, in the receiving, forwarding, or delivery, 
 thereof, except upon proof that such loss, detention, or injury 
 arose from the wilful misconduct of the company or its servants." 
 
 (a) White v. G. W. Ry. Co., 2 Ry. Co., 1 H. & N. 392. 
 C. B., N. S. 7. (d) 44 L. T., N. S., 181. 
 
 (b) Beal v. South Devon Ry. (e) Gordon v. G. W. Ry. Co., 
 Co., 5 H. & N. 875. 8 Q. B. D. 44. 
 
 (c) Pardington v. South Wales
 
 •56 SPECIAL CONTRACTS WITH CARRIERS. 
 
 It was held that the withholding of the cattle under a groundless 
 claim to retain them was not "detention " within the condition, 
 and that the company were therefore liable. The court also were 
 inclined to think that the company had been guilty of " wilful 
 misconduct," but it was unnecessary to decide that point. 
 
 The still more recent case of Stevens v. G. W. Ry. Co. (/) was 
 a case of misdelivery of goods consigned at owner's risk rate with 
 protection against "wilful misconduct on the part of the com- 
 pany's servants." It was held that the mere misdelivery was 
 not evidence of wilful misconduct; the plaintiff must go further 
 and show how it occurred. 
 
 The 7th section of the Eailway and Canal Traffic Act has no 
 application to goods left at a railway cloak room (g), nor to con- 
 tracts by railway companies to carry over other lines (h); but it 
 extends to their sea traffic (?'). 
 
 Land Carriers Act. 
 
 [24.] MORRITT v. NORTHEASTERN RAILWAY CO. 
 [1 Q. B. D. 302 (1876).] 
 
 Mr. Morritt was a passenger by the defendant's railway 
 from York to Darlington, and had with him two water- 
 colour drawings tied by a rope face to face. They were 
 above the value of £10, but he made no declaration of 
 their value. He banded them to the guard, asking him to 
 take care of them, and saw them labelled "Darlington." 
 When the train reached Darlington, Morritt got out, took 
 a fresh ticket to Barnard Castle, and told the porter to see 
 that the drawings were taken out and put into the Barnard 
 * Castle train. The drawings, however, were not taken out, 
 but were carried on to Durham, and when Morritt saw 
 
 {f) 52 L. T., N. S. 324, distin- (h) Zunz v. S. E.Ry. Co., L. 
 
 gui'shing Hoare v. G. W. Ry. Co., R. 4 Q. B. 359. 
 
 37 L. T., N. S. 186. («) 31 & 32 Vict. c. 119; and 
 
 (g) Van Toll v. S. E. Ry. Co., see Cohen v. S. E. Ry. Co., 1 Ex. 
 
 31 L. J. C. P. 241 Div. 217
 
 LAND CARRIERS ACT. 57 
 
 them again they had been greatly injured, " holes hav- 
 ing been made in them." 
 
 The question was, whether the Carriers Act applied 
 to the case of goods negligently carried beyond the point 
 of destination so as to protect the railway company, 
 and it was held that it did. 
 
 In the good old times it was the frequent practice of "bankers "Bankers 
 and others" to send "articles of great value in small compass," and others." 
 such as cases of jewellery, by the public conveyance without tell- 
 ing the carrier what he was carrying, and then afterwards, if the 
 things were lost, to come down on the unfortunate man for com- 
 pensation. 
 
 To protect him against this manifest unfairness, the Land Car- Act of 1830. 
 riers Act of 1S30 (k) was passed. Its object is twofold : — 
 
 (1.) The carrier is to be informed when he is carrying anything 
 particularly valuable, so that he may give it a corresponding 
 amount of protection. 
 
 (2.) In recognition of the extra responsibility and trouble, he 
 is to have extra jjay. 
 
 The Carriers Act, it is to be observed, applies only to carriers by 
 land. But when there is one entire contract to carry partly by 
 land and partly by sea, the contract is divisible, and during the 
 land journey the carrier is within the protection of the Act (I). 
 
 Put shortly, the 1st section of the Act provides that no land 
 carrier is to be liable for the loss of, or injury to, any one of cer- 
 tain specified "articlesof great value in small compass" (m) con- "Articles of 
 tained in any parcel or package when the value of the. article exceeds great value 
 £10, unless the person delivering it to the carrier declares its value in 8ma " 
 and agrees to pay more for its carriage ; and the construction placed 
 on the section is that it protects the carrier in all cases of loss or 
 injury by accident or negligence, but does not protect him against 
 the consequences of his toilful misfeasance (n), nor against delay 
 without loss (o). 
 
 The leading case was followed in the recent case of Millen v. Christmas 
 Brasch (p). The defendants in the case were carriers from Lon- cards mis- 
 don to Rome, and received the plaintiff's trunk containing silks ggaiolHns 
 and sealskins worth £40, no value being declared, for Italy. 
 
 (k) 11 Geo. IV. and 1 Will, within the section. Owen v. 
 
 IV. c. 68. Burnett, 2 G. & M. 353. 
 
 (I) La Conteur v. L. & S. W. (») Hinton v. Dibbin, 2 Q. B. 
 
 Ry. Co., L. R. 1 Q. B. 54. 646. 
 
 (m) The words quoted from (o) Hearn v. L. & S. W. Ry. 
 
 the preamble, however, are not Co., 10 Ex. 793. 
 
 of any real importance. A large (p) 31 W. R. 190. 
 looking-glass, for instance, is
 
 58 
 
 LAND CARRIERS ACT. 
 
 Meaning of 
 "value." 
 
 Somehow they made a mistake between the plaintiff's trunk and 
 a case of Christmas cards consigned to somebody at New York, 
 sending the silks and sealskins to America and the Christmas 
 cards to Italy. In their defence, the carriers claimed the protec- 
 tion of the Carriers Act ; but the plaintiff contended that they 
 were not entitled to it, because they were wrongdoers in having 
 sent the trunk on the wrong road and not on the journey contract- 
 ed for. To this objection, however, Morrill v. The North Eastern 
 Railway Co., was held to be a conclusive answer. It was also held 
 in Millen v. Brasch that the carrier was not deprived of the pro- 
 tection of the Act by the fact that the loss of the goods was tem- 
 porary and not permanent ; and that the plaintiff was not enti- 
 tled — on this point the Court of Appeal reversing the decision of 
 the court below — to recover as damages the cost of the repurchase 
 of other articles at Rome at enhanced prices in place of those tem- 
 porarily lost. 
 
 The word " value" in the 1st section means the value to the 
 consignor, so that, if he was selling the articles to Jones for £12, 
 it is of no consequence that he had bought them the day before 
 from Brown for £9 (q). " He may have had them as a gift," re- 
 marked Lord Coleridge, C.J., "and is the value nothing to him 
 because he has really paid nothing for them?" 
 
 The part of the section which has been the most litigated, is the 
 part specifying the "articles of great value in small compass." 
 Painted carpet designs, it has been held, are not " paintings " (r). 
 Hat bodies made partly of fur and partly of wool are not "furs" (s). 
 German silver fuzee boxes are not "trinkets" (t). But a chronome- 
 ter is a "time-piece" (w). The word" writings," it has been held 
 in a county court case (.r) will include the manuscript of an au- 
 thor. In " pictures " frames are included (?/). t A packed icaggon 
 sent for carriage by a railway company, containing articles of the 
 specified kind and put on a truck, is a " parcel or package" 
 
 within the section (z). 
 
 O 
 The declaration of the value and nature of the goods must be 
 
 made at the time of delivery, whether that be at the carrier^ of- 
 fice, at the sender's house, on the road, or elsewhere (a\. 
 
 Thefts by Sect. 8 of the Carriers Act provides that the carrier shall be re- 
 carriers' ser- sponsible for the felonious acts of his servants, notwithstanding 
 vants. 
 
 Decisions as 
 to articles 
 enumerated. 
 
 '•4 
 
 o 
 
 «-3-i 
 o c 
 
 ?• o 
 
 fc-« 
 
 o 
 
 (q) Blankensee v. L. & N. W. 
 Ry. Co.,45L. T., N. S. 761. 
 
 (r) Woodward v. L. & N. W. 
 Ry. Co., 3 Ex. Div. 121. 
 
 (s) Mayhew v. Nelson, 6 C. & 
 P. 58. 
 
 (t) Bernstein v. Baxendale, 6 
 C. B., N. S. 251. 
 
 («) Le Conteur v. L. & S. W. 
 
 Ry. Co., supra. 
 
 (x) Lawson v. L. & S. W. Ry. 
 Co., Law Times, June 24, 1882. 
 
 (y) Henderson v. L. & S. W. 
 Ry. Co., L. R. 5 Ex. 90. 
 
 (z) Whaite v. Lane. &Yorks. 
 Ry. Co., L. R. 9 Ex. 67. 
 
 (a) Baxendale v. Hart, 6 Ex. 
 769.
 
 LAND CARRIERS ACT — PASSENGERS LUGGAGE. 59 
 
 that the customer may not have declared and insured his goods. 
 The section has been so construed that, while, on the one hand, 
 the customer need not give evidence that would fix any particu- 
 lar servant with the theft (b), on the other, it is not sufficient for 
 him merely to show that nobody had a better opportunity of 
 stealing his things than the company'sservants (e). The servant 
 of a carrier employed by a railway company is a servant of the 
 company for the purposes of the section (rf), but the company 
 may show that the thief falsely represented himself to be the 
 carrier's servant (e). 
 
 The 7th section of the Railway and Canal Traffic Act (/) pro- Horses, 
 vides that no greater damages than £50 for a horse, £15 for any sheep, pigs, 
 neat cattle per head, and £2 for a sheep or pig, shall be recovered 
 unless a higher value has been previously declared. 
 
 Passengers'' Luggage. 
 
 BERGHEIM v. GREAT EASTERN RAILWAY CO. [25.] 
 [3 C. P. D. 221 (1878).] 
 
 Mr. Bergheim was a passenger from Shoreditch to 
 Yarmouth. When he arrived at the Shoreditch station 
 he found he had plenty of time,and so he decided to go to 
 the refreshment room and get some lunch. First, how- 
 ever, he took his ticket, and made the acquaintance of 
 a porter named Bishop, into whose care he committed 
 his luggage, including a certain dressing-bag. Bishop 
 said it would be all right, and went, off with the lug- 
 gage. He placed it on the seat of a first-class com- 
 partment, and locked it up, but when Mr. Bergheim 
 went to his carriage, the bag was missing, and was 
 never afterwards found. Mr. Bergheim now sought to 
 make the company responsible for the loss of his dress- 
 ing-bag. It was clear that the compartment, and not 
 
 (b) Vaughton v. L. & N. W. Co., 2 Ex. 415. 
 
 Ry. Co., L. R. 9 Ex. 93. (e) Way v. G.E. Ry. Co., 1 
 
 (c) McQueen v. G. W. Ry.Co., Q. B. D. 692. 
 
 L. R. 10 Q. B. 569. (/) 17 & 18 Vict. c. 31. 
 
 (d) Machu. v. L. & S. W. Ry.
 
 m 
 
 PASSENGERS LUGGAGE. 
 
 Personal 
 luggage, 
 what is. 
 
 the luggage-van, was the proper place for such a bag, 
 and that there had been no negligence on either side. 
 The question, therefore, was whether the company were 
 liable as common-carriers, in respect of the bag; and 
 it was held that they were not. 
 
 The reason why, in the ahsence of negligence, a railway com- 
 pany is not to be held responsible for the loss of luggage carriec 
 in the traveller's own compartment is, that over such luggage he 
 is supposed to retain control, and not to have entirely confided it 
 to the care of the company (g). 
 
 In respect of luggage carried in the van, railway companies are 
 insurers. Such luggage, however, must not be merchandise, but 
 simply the personal luggage of the passenger. So far as a rule can 
 be extracted from a number of conflicting decisions, by "personal 
 luggage" is meant whatever the traveller taken with him for his per- 
 sonal use and convenience, according to the habits and wants of his 
 class, either with reference to the immediate necessities, or to the irfli- 
 mate purpose, of his journey (/<). About most of the things that 
 sensible people are in the habit of taking with them on journeys 
 there can, of course, be no dispute. But the bedding which a man 
 is carrying' with a view to the time when he shall have provided 
 himself with a home (/), the sketches of an artist (fc), the title- 
 deeds of a client which a solicitor is taking to produce at a trial (7), 
 and a toy rocking-horse (!) (m), have been held not to be personal 
 luggage. An eminent county court judge has held that a ham- 
 per of fowls, apples, and vegetables, intended as a present to a friend, 
 is personal language (n) ; but the decision appears to be hardly 
 consistent with the authorities. 
 
 If the company carry goods without objection, though well 
 aware that they are not personal luggage, they will be liable (o). 
 
 Porters -A. company employing porters in the usual way are responsible 
 
 takingcharge for passengers' luggage, not merelv while it is being carried on 
 
 of luggage. t h e journey, but also while it is in course of translation from cab 
 
 to train or train to cab ( p). There seems, however, to be a little 
 
 doubt on the subject of luggage left on the platform, even though 
 
 {g) See Talley v. G. W. Ry. 
 Co., L. R. 6C. P. 44. 
 
 (h) Macrow v. G. W. Ry.Co., 
 L. R. 6 Q. B. 612. 
 
 (/) Macrow v. G. W. Ry. Co., 
 supra. 
 
 (k) Mytton v. Midi. Ry. Co., 
 4 H. & N. 615. 
 
 (/) Phelps v. L. & N. W. Rv. 
 Co., 19 C. B., N. S. 321. 
 
 (m) Hudstoni*. Midi. Ry.Co., 
 
 L. R. 4 Q. B. 366. 
 
 (n) Case v. L. & S. W. Ry. 
 Co., 68 L. T. 176. 
 
 (o) Cahill v. L. & N. W. Ry. 
 Co., 13 C. B., N. S. 818; and 
 G. N. Ry. Co. v. Shepherd, 8 
 Ex. 20. 
 
 (p) Richards v. L. B. & S. C. 
 Ry. Co., 7C.B. 839; and Butcher 
 v.L. & S. W. Ry. Co., 16 C. B. 13.
 
 passengers" luggage. 61 
 
 a porter may have taken charge of it. The London and North A cell's case. 
 Western have been held (q) not liable for the loss of a portman- 
 teau which an intending passenger from Manchester to Hull gave 
 to a porter on arriving in a<al> at the Manchester station. The 
 porter left the portmanteau on the platform, where the intending 
 passenger found it soon alterwards; and, as he could not find an- 
 other porter, he labelled it himself. Then he went away for a 
 little time; and when he came back the portmanteau had disap- 
 peared. But the Court seems to have thought that if, on arriving 
 at the station, the traveller had said "Hull," and the porter had 
 replied ''All right," the company would have been responsible; 
 and indeed this point would seem to be clear from the case of 
 Lovell v. London, Chatham and Dover Railway (/). The only Lovell'sease. 
 thing is, you must not go to a station about two hours before your 
 train starts, and expect the railway company to be insurers of 
 your luggage all that time. 
 
 In a recent case (in which a lady's maid coming from Malvern The lady's 
 lost her box at Paddington), it has been held that, in regard to a maid's case, 
 passenger's luggage on the train's arriving at the station he gets 
 out at, it is the company's duty to have the luggage ready at the 
 usual place of delivery, while it is the passenger's duty to re- 
 move it within a reasonable time (s). After that it would seem 
 that the company's liability is that of warehousemen (I). 
 
 Hodkinson v. L. & N. W. Ry. Co. (it) was the case of an unfor- The gover- 
 tunate governess who lost her box. She arrived at a station of ness s case, 
 the defendants (Ashton-under-Lyne). and one of the company's 
 porters took her luggage from the van. " Would she have a cab?" 
 "No, she would walk and send for her luggage." "All right, 
 mum," said the porter, " I'll put them on one side, and take care 
 of them." The governess went ofT. and so did the luggage; for two 
 hours afterwards, when it was wanted, it could not be found. It 
 was held that the company were not responsible for the loss. 
 They had delivered the luggage in the proper way, and the 
 woman's re-delivery of it to the porter could not be taken to af- 
 fect them. " Patscheider v. Great Western Railway Company," 
 said Lord Coleridge, C.J., "is clearly distinguishable; there the 
 plaintiff had no opportunity of taking possession of her box. 
 Possibly the porter may be responsible for the loss; but the com- 
 pany clearly are not." 
 
 (q) Agrell v. L. & N. W. Ry. peal (overruling the court he- 
 Co., printed in a note to Leach v. low) held a railway company 
 S. E. Ry. Co., 34 L. T., N. S. liable for the loss of luggage 
 134. confided to the care of a porter. 
 (?•) 45 L. J. Q. B. 476. (0 Chapman v. G. W. Ry. Co., 
 (.<?) Patscheider v. G. W. Ry. 5Q. B. B. 27^; and see Mitchell 
 Co., 3 Ex. D. 153. See also the v. Lane. & Y., L. R., 10 Q. B. 
 very recent case of Bunch v. G. 256; and Hough v. L. & N. W. 
 W. Ry. Co. (The Times. Ap. 13th, Ry. Co. ; L. R. 5 Ex. 51. 
 1886), where the Court of Ap- (u) 14 Q. B. D. 220. 
 6 COMMON LAW.
 
 62 
 
 passengers' luggage 
 
 Cloak rooms. 1° respect of articles deposited at the cloak room, a railway 
 company's liability is not that of .common carriers. But compa- 
 nies are in the habit of attempting to vary the ordinary contract 
 of bailment by issuing tickets containing conditions. If the cus- 
 tomer reads the conditions and makes no objections, he will be 
 bound by them; and so he will be if he is aware that there are 
 conditions, and does not take the trouble to look at them, or 
 thinks it better not to (x). But he will not be bound by the con- 
 ditions if he did not read them and was not aware ol their exist- 
 ence {>/). 
 
 Watkins v. 
 Rymill. 
 
 Liability to 
 
 whom. 
 
 IjOSs off 
 line. 
 
 A recent case of importance on the subject of special conditions 
 on tickets is Watkins v. Rymill (z), where the plaintiff had de- 
 livered to the defendant a waggonette to be sold, and had taken 
 from him a printed form containing a receipt for the waggonette, 
 followed by the words; " subject to the conditions as exhibited upon 
 the premises.'" The plaintiff was held to be bound by the condi- 
 tions, though he had put the document into his pocket without 
 looking at it. On this case Mr. Pollock, in his admirable book 
 on "Contracts" («), remarks, "Are reasonable means of know- 
 ledge equivalent to actual knowledge? It seems better on prin- 
 ciple to say that actual knowledge may be inferred as a fact 
 from reasonable means of knowledge, and inferred against the 
 bare denial of the party whose interest it was not to know. 
 This is one of the rules of evidence which are apt in particular 
 departments to harden into rules of law, and the judgment in 
 Watkins v. Rymill certainly tends in this direction. It would 
 be curious, however, if after constructive notice has been justly 
 discredited in equity cases a new variety of it should be in- 
 troduced in a question of pure common law." 
 
 The liability of a railway company for passengers' luggage, it 
 may be mentioned, is to the passenger travelling with it, though 
 it may not be really his property. Thus, a man sending on his 
 luggage by a servant cannot sue for its loss (b). So it does not 
 matter who paid the fare: a servant, for instance, can sue for loss 
 of luggage though the ticket was taken by his master (c). 
 
 Companies sometimes issue tickets stating that they do not 
 hold themselves responsible for loss or injury arising " off their 
 own lines." To bring themselves within such a condition a rail- 
 way company must show that the luggage when lost was out of 
 
 (x) Harris v. G. W. Ry. Co., 
 1 Q. B. D. 515. 
 
 (y) Parker v. S. E. Ry. Co., 2 
 C. P. D. 416; and Henderson r. 
 Stevenson, L. R. 2 H. L. Sc. 470. 
 
 (z) 10 Q. B. D. 178, and see 
 Woodgate's case, 51 L. T., N. 
 S., 830. 
 
 (a) 4th cd., p. 47. 
 
 (b) Becher v. G. E. Ry. Co., 
 L. R. 5 Q. B. 241. 
 
 (c) Marshall v. York, &c, Ry. 
 Co., 11 C. B. 655; and see Aus- 
 tin v. G. W. Ry. Co., L. R. 2 
 Q. B. 442.
 
 PASSENGERS' LUGGAGE — TRAINS BEHIND TIME. 63 
 
 their custody; so that if it is lost at a station which they have the 
 use of by agreement with another company, they will not be 
 protected (d). 
 
 Independently altogether of contract, the traveller may bring Suing in 
 an action against a railway company who have taken his port- tort, 
 manteau to be carried and then negligently lost it. 
 
 In Hooper v. L. & N. W. Ry. Co. (c) the plaintiff had taken a Hooper's 
 G. W. through ticket from Stourbridge to Euston, changing at c 'ase. 
 Birmingham into a train of the defendants. He saw his port- 
 manteau transferred from the G. W. to the L. & N. W. train, but 
 at Euston it was missing. Notwithstanding that his contract 
 was with the G. W. people, he was held entitled to sue the L. & 
 N. W. Co. as for a breach of duty. 
 
 Trains behind Time,&c. 
 
 DENTON v. GREAT NORTHERN RAILWAY CO. [26.] 
 [5 E. & A. 860 (1856).] 
 
 On the 25th of March, 1855, Mr. Denton, an en- 
 gineer of some eminence, had occasion to go from 
 Peterborough to Hull, where he had an appointment 
 for the next morning. He consulted the G. N. R. Com- 
 pany's time-tables, and found there was a train leaving 
 Peterborough at 7 p. m. which would land him at Hull 
 about midnight. This just suited him, so he took his 
 ticket for Hull and started by it. But when he got to 
 Milford Junction, he was informed by an official that 
 the lato train to Hull had been discontinued, and that 
 he could not get there that night. The fact was, that 
 the line from Milford Junction to Hull belonged to the 
 North Eastern Railway Company, who till March 1st 
 had run a train departing a few minutes after the arri- 
 val of the train leaving Peterborough at 7 p. m. But 
 it had not run at all during March, and the Great 
 Northern Railway Company had published their March 
 time-tables, though they had had notice that it would 
 
 (<1) Kent. v. Midi. Ry. Co., Met. Ry. Co.; 5 C. P. D. 157, 
 
 L. R. 10 Q. B. 1. and disregarding Mvtton v. 
 
 (e) 50 L. J. Q. B. 103, decided Midi. Ry. Co., 28 L.'j. Exch. 
 
 on the authority of Foulkes o. 398 as an authority.
 
 64 TRAINS BEHIND TIME. 
 
 not ran. In consequence of the absence of this train, 
 Mr. Denton did not get to Hull in time to keep his ap- 
 pointment, and sustained damages to the amount of 
 £5 10s., for which he sought to make the Great North- 
 ern Railway Company liable. He was quite success- 
 ful. The company were held liable, on the grounds — 
 
 1st. That they had been guilty of a false representa- 
 tion. " It is all one," said Lord Campbell, " as if a 
 person duly authorised by the company had, knowing 
 it was not true, said to the plaintiff, ' There is a train 
 from Milford Junction to Hull at that hour.' The 
 plaintiff believes this, acts upon it, and sustains loss. 
 It is well established law that where a person makes 
 an untrue statement, knowing it to be untrue, to an- 
 other, who is induced to act upon it, an action lies. 
 The facts bring the present case within that rule." 
 
 2nd. That the time-tables amounted to a contract. 
 
 [27.] LE BLANCHE v. LONDON & NORTH WESTERN 
 
 RAILWAY CO. 
 
 [1 C. P. D. 286 (1876).] 
 
 Mr. Le Blanche was a business man, who, in August, 
 1874, like a great many other hard-working individ- 
 uals, decided to spend a fortnight at Scarborough. 
 He took a first-class ticket of the London and North 
 Western Company to go from Liverpool to Scarbor- 
 ough by the 2 p. m. train, which, the time-tables told 
 him, would arrive at Scarborough at 7.30 p. m. Mr. 
 Le Blanche's journey lay by Leeds and York, at each 
 of which places it was necessary for him to change 
 and get into a train not belonging to the London and 
 North "Western Company. The train was 27 minutes late 
 at Leeds, and, in consequence of that, Mr. Le Blanche 
 missed the train he ougrht to have caught, and did not
 
 TRAINS BEHIND TIME. 65 
 
 arrive at York till 7 o'clock, which was too late for the 
 train on, which arrived at Scarborough at 7.30. On in- 
 quiry, he was informed that the next train would leave 
 York at 8 and get to Scarborough at 10. Most men un- 
 der these circumstances would have spent an hour in 
 dining, or looking at the old city. Not so with Mr. Le 
 Blanche. He instantly ordered a special train, and ar- 
 rived at Scarborough at about half- past eight. 
 
 He now brought an action to recover the money he 
 had paid for the special train, — nearly £12, — but in 
 spite of the delay being traced to negligence, he did not 
 get the money because, though it is a sound principle 
 of law that if the party bound to perform a contract 
 does not perform it, the other party may do so for him 
 as reasonably near as may be and charge him for the 
 reasonable expense incurred in so doing, yet he may not 
 perform it unreasonably and oppressively, and it was 
 ridiculous for a man to take a special train merely for 
 the purpose of getting to a nice place an hour earlier. 
 
 The duty of a carrier of passengers at common law is simply Common law 
 to deliver them at their destination within a reasonable time; duty, 
 and it has been expressly held that the mere granting of a ticket 
 imposes on a railway company no obligation to have a train ready 
 to start at a definite time (f). 
 
 But railway companies invariably issue time-tables and condi- Varied by 
 tions so as to vary their common law liability; and the issue of time tables, 
 such time-tables amounts to an express contract with the public. 
 The usual condition which the companies seek to enforce is that 
 " lliough every attention will be paid to ensure punctuality, they do not " Every at- 
 warrant the departure or arrival of the trains at the limes specified in teutl0U - 
 thetimc.bills-" and the meaning of this and similar conditions is 
 frequently discussed. On the whole it is clear that a company 
 cannot contract itself in this way out of its liability to be reason- 
 ably punctual. But on the other hand, it is not to be held liable 
 merely because a train is late. It must be affirmatively shown that 
 the lateness is due to neglect to pay the " every attention " which 
 is promised. No doubt the extreme lateness of a train would 
 suggest a presumption of such negligence; but it would be open 
 
 (/) Hurst v. G. W. Ry. Co., 19 C. B., N. S., 310.
 
 66 
 
 TRAINS BEHIND TIME. 
 
 Unavoidable to * ne company to rebut it by snowing that it was due to a fog or 
 lateness. a strong wind, or the slippery state of the rails, or a flood, or to 
 
 sjme other circumstance over which they had no control [ff). 
 Mr. Wood- Tlie recent case ot Woodgate v. The Great Western Railway 
 
 gate's Christ- Company (y) is of great importance on this branch of the law. 
 uiasEve. The plaintiff, Mr. Woodgate, was a well-known and much es- 
 
 teemed barrister, who on Christmas Eve, 1881, took a first-class 
 return ticket from Paddington to Bridgnorth, a station on a branch 
 line of the defendants. The ticket had '• See back" on one side 
 (only on the return half), and " Issued subject to the conditions slated 
 on the Company* stime bills" on the other. The "time bills" were 
 published monthly in a book of about one hundred pages, and on 
 the first page was a notice headed " Train Bills," that the com- 
 pany would not be accountable for injury which might arise from 
 delays, unless in consequence of the wilful misconduct of the 
 company's servants. By reason of its being Christmas time, of the 
 weather being foggy, and of there having been a collision some 
 bours before, Mr. Woodgate did not arrive at his destination so 
 speedily as he could have wished. In fact, to cut the story short, 
 his journey took ten hours instead of six as advertised. In an 
 action which he proceeded to bring against the railway company, 
 it was held, upon a special case, that the conditions on the time 
 bills were incorporated in the plaintiff 's contract with the com- 
 pany, and that there was no evidence of their wilful misconduct 
 or liability. "I hold," said Smith, J., in accordance with the de- 
 cision in the case of Le Blanche v. London and Northwestern Rail- 
 way Company, that the taking of the ticket, the time-table, and 
 the conditions formed the contract under which the the Great 
 AVestern Railway Company undertook to carry Mr. Woodgate. 
 Then. 'that being my opinion, the question arises, what is the 
 meaning of the contract? .... I think no man can read 
 this clause without coming to one conclusion. It does not say, 
 'We will be liable in no case,' but it simply says this: 'If you, 
 as a passenger, have incurred any loss, inconvenience, or injury 
 by reason of delay or detention, we will compensate you if you 
 prove it is by the wilful misconduct of our servants, but other- 
 wise not..'" 
 No room. An action may be maintained by a traveller for whom, though 
 
 the train starts as advertised, there is no room. "This was held 
 in the case of the Great Northern Railway Company v. Hawcroft 
 (/() where the plaintiff was a Parnsley confectioner, who took an 
 excursion return ticket to go up to London and seethe Great Ex- 
 hibition of 1851. The excursion train by which he proposed on 
 a Saturday morning to return was so full that he could not get a 
 
 (/) See Fitzgerald v. Midi, see M'Cartan v. N. E. By. Co., 
 Ry. Co., 34 L. T. 771. 54 L. J. Q. B. 441, 
 
 {y) 51 L. T., N. S., 826; and (A) 21 L. J. Q. B. 178.
 
 TRAINS BEHIND TIME. 07 
 
 seat, and, as the company would not allow him to go by one of The Barnsley 
 their ordinary trains, he was kept hanging about King's Cross confection- 
 station with grooms and porters till late in the evening. "When er ' s Tr 'P to 
 at last he did get a train, he found, that it took him no further ^ 0Uli0U 
 than the ancient and interesting town of Doncaster, where it 
 landed him on Sunday morning in good time for church. The 
 Barnsley confectioner, however, did not care for any quiet Sun- 
 days at Doncaster. After a fortnight of metropolitan dissipation, 
 he wanted to get back to the bosom of his family as quickly as 
 possible, so, (there being no Sunday trains) he hired a carriage 
 and drove from Doncaster to Barnsley. Under there circum- 
 stances thecompany were held liable. ' I do not think,' said Pat- 
 terson, J., 'that they had any right to keep him in London until 
 the 9.45 evening train. They should have sent another train. 
 The case rinds that they might have done so without danger.' " 
 
 Assuming that an action lies, there is a further question as to What dama- 
 
 the damages obtainable. It is a clear rule that damages cannot be S es - 
 
 obtained for the loss of a business engagement, such loss not heinjr in „ 
 
 J ... Business en- 
 
 the contemplation of both parties at the time of contracting. The gagement. 
 
 case of Buckmaster v. The Great Eastern Railway Company (i), 
 
 where a Suffolk miller who missed his market recovered £10 in The miller's 
 
 respect of loss of business, is not really a violation of this rule, case - 
 
 because probably the train was especially run on the particular 
 
 day and at the particular time to enable people to attend the Mark 
 
 Lane Corn Market, and it was for that purpose, as the company 
 
 knew, that the plaintiff had taken a season ticket. Nor can dam- . 
 
 ' l Annoyance, 
 
 ages be obtained for the disappointment and annoyance which the 
 
 traveller will naturally feel. But damages may be obtained for Inconvience. 
 personal inconvenience. A well-known case, on this point is Hobbs 
 v. The London and South "Western Railway Company (k), where * ,',' 
 a family party took tickets on the defendants' railway to go from 
 "Wimbledon to Hampton Court by the midnight train. They got 
 into the train, but, unluckily for them, it did not goto Hampton 
 Court, but went along the other branch to Esher, where they were 
 unable to get either a conveyance or accommodation for the night. 
 Accordingly, though it was a nasty wet night, they had to tramp 
 it home, not arriving till about three o clock in the morning; and, 
 as one of the results, the wife caught cold and was laid up for a 
 long time, being unable to assist her husband in his business, and 
 having to have a doctor. In an action by the husband and wife 
 against the company it was held that they were entitled to dam- 
 ages for the inconvenience suffered in consequence of being obliged 
 to walk home, but not for the illness and its consequences. This 
 distinction, however, was pretty freely commented on by the 
 
 (i) 23 L. T., N. S., 471. (A-) L. R. 10 Q. B. 111.
 
 68 TRAINS BEHIND TIME. 
 
 The Hobbs Court of Appeal in McMahon v. Field (I), -where the plaintiff's 
 ease. horses had been turned out of an inn-keeper's stables, through 
 
 that person breaking his eontraet, and had caught cold owing to 
 the exposure. It was held that the damage in respect of such 
 cold was recoverable, as it was the probable consequence of the de- 
 fendant's breach of contract, and was not, therefore, too remote. 
 "InHobbs v. London and South "Western Railway Company," 
 said Bramwell, L.J., " it was said. that the damage to the wife 
 was a secondary consequence of the breach of contract and'too re- 
 mote ; and by way of illustration the case was given of a person 
 walking home in the dark, who took a false step, which resulted 
 in a fall and a broken limb ; but I must say I do not see why a 
 passenger who, by the default of the railway company, was obliged 
 to walk home in the dark, might not recover in respect of such 
 damage, it being an event which might not unreasonably be ex- 
 pected to occur." "Then it is said," added Brett, L.J., "that 
 the case is governed by that of Hobbs v. London and South West- 
 ern Railway Company. Now, I must confess that, if I acquiesce 
 in that case, I cannot quite agree with it. What were the facts 
 there? .... The wife in consequence of the exposure caught 
 a cold, and it was said that such damage was too remote to be 
 recovered. Why was it too remote? .... Suppose a man 
 let lodgings to a woman, and then turned ber out in the middle 
 of the night with only ber night-clothes on, would it not be a 
 natural consequence that she would take cold?" The Lord Jus- 
 tice, however, distinguished the two cases in this way, " People 
 do not getout of atrain and walk home at night without catching 
 cold, and it is not nearly so inevitable a consequence that a per- 
 son getting out of a train under such circumstances as in Hobbs 
 v. London and South Western Railway Company, should catch 
 cold as that borses turned out, as these were in this case, should 
 suffer. There is, therefore, a difference, though I own I do not 
 see much, between this case and that of Hobbs v. London and 
 Hotel expen- South Western Railway Company." Hotel expenses entailed by 
 ses. the breach of contract may be recovered (m). Moreover, on the 
 
 principle that, when a contracting party fails to perform his en- 
 gagement, the other may perform it for himself and send , in his 
 bill, provided he does not perform it oppressively and unreason- 
 Special train, ably, the traveller may take a carriage or special train, and charge 
 it to the company. A rough test that might be applied as to the 
 oppressiveness is, — supposing this person had had to pay the money 
 out of his own pocket, ivould he have been in such a hurry to yet to his 
 destination ? 
 
 (I) 7 Q. B. D. 591. Hull to see his customers in 
 
 (m) Hamlin v. G. N. Ry. Co., Yorkshire, and found himself 
 
 1 H. & N. 408, which was the stranded unexpectedly at 
 
 case of the master tailor who Grimsby. 
 
 was going down from London to
 
 HUSBAND AND WIFE. 69 
 
 An interesting recent case on railway law is Burnett v. Great All passenger 
 North of Scotland Railway (10 App. Cat. 147), where the plain- trains to stop. 
 
 tiff's grievance was that the defendants did not stop all their 
 passenger trains at his station in accordance with their agreement 
 made many years before in consideration of their getting a piece 
 of his land to build their station on. There were two particular 
 trains which the plaintiff desired to have regularly stopped, a 
 Queen's Messenger train and a Post Office train, and it was held 
 that he was entitled to have them stopped, although they only 
 ran while the Queen was at Balmoral, and were of a decidedly 
 special character. "What is a passenger train?" said the Court. 
 "It may be a special, or it may be an express train; it may carry 
 the mail, or a Queen's messenger, or even excursionists, but it 
 does not follow that it is not also a passenger train." 
 
 Power of Wife to Bind Husband to her Con- 
 tracts. 
 
 MANBY v. SCOTT. [28.] 
 
 [1 Sid. 109 (1659).] 
 
 "Scott's wife departed from him without his consent, 
 and lived twelve years separate from him, and then re- 
 turned; but he then would not receive her, nor allow her 
 any maintenance, and discharged or forbade tradesmen, 
 particularly the plaintiffs, from trusting her with any 
 wares." The plaintiffs disregarded the prohibition, sold 
 the wife goods at reasonable prices arid tit for her qual- 
 ity, and then sued the husband. They did not succeed, 
 however; and Manby v. Scott has been for 226 years 
 the leading authority for the principle that the wife's 
 contract does not bind her husband unless she acts by 
 his authority. 
 
 MONTAGU" r. BENEDICT. [29,] 
 
 [3 B. & C. 031 (1825).] 
 
 Mr. Benedict was a London lawyer, whose wife ordered 
 various articles of expensive jewellery from the plaintiff 
 without her husband's knowledge. In an action by the
 
 70 HUSBAND AND WIFE. 
 
 jeweller against the husband it was argued for the plain- 
 tiff with some plausibility that the defendant and his 
 wife were in comfortable circumstances of life; though 
 they might not be rich, and that cohabitation was evi- 
 dence of Benedict's assent to his wife's contract. It was, 
 however, unanimously held that the goods supplied were 
 ■not necessaries, and that therefore the defendant could 
 not be compelled to pay for them. "If a tradesman," 
 said Bayley, J., "is about to trust a married woman for 
 what are not necessaries, and to an extent beyond what 
 her station in life requires, he ought, in common pru- 
 dence, to inquire of the husband if she has his consent 
 for the order she is giving." 
 
 [30.] SEATON v. BENEDICT. 
 
 [5 Bixg. 28 (1828).] 
 
 After the jewellery case, just related, the Benedicts 
 went to live at Twickenham. But Mrs. Benedict con- 
 tinued her extravagance. She became indebted to a 
 local haberdasher for scarves, gloves, laces, and other 
 articles; and finally the tradesman sued her husband. 
 
 The goods supplied were unquestionably necessaries, 
 but then Mr. Benedict had always duly furnished his 
 wife with necessary apparel, and knew nothing of her 
 clandestine dealings with Seaton; and on this ground 
 the plaintiff was disappointed in his expectations of 
 getting paid. "It may be hard," said Best, C J., "on a 
 fashionable milliner that she is precluded from supply- 
 ing a lady without previous inquiry into her authority. 
 The court, however, cannot enter these little delicacies, 
 but must lay down a law that shall protect the husband 
 from the extravagance of his wife."
 
 HUSBAND AND WIFE. 71 
 
 JOLLY v. REES. [31.] 
 
 [15 C. B., N. S., 628 (1863).] 
 
 Mr. Rees, a country gentleman living near Llanelly, 
 told his wife that he was not going to pay for any dra- 
 pery or millinery goods she or her daughters might 
 choose to buy on credit. They could do well enough, 
 he said, on the allowance they already had. In spite 
 of this distinct prohibition, Mrs. Rees gave Messrs. 
 Jolly, hosiers and linendrapers at Bath, substantial 
 orders, and they by and by sent Mr. Rees a substantial 
 bill. This Mr. Rees absolutely declined to pay, and 
 litigation ensued. The tradesmen had not known that 
 Mr. Rees had expressly forbidden his icife to incur sur- 
 ruptitious debts, and the goods they had supplied were 
 what the law calls " necessaries," so they felt confident 
 of success. The judges, however, decided against 
 them, and thus "carried to its logical results the prin- 
 ciple that the wife's authority to bind her husband is a 
 mere question of agency." 
 
 SMOUT v. ILBERRY. [32.] 
 
 [10 M. & W. 1 (1842).] 
 
 A man who had been in the habit of dealing with the 
 plaintiff for meat supplied to his house went to China, 
 leaving his wife and family behind, and died there. It 
 was held that the wife was not liable for goods sup- 
 plied to her after his death, but before the news of it 
 had arrived, she having had originally full authority to 
 contract, and done no wrong in representing her autho- 
 rity as continuing. 
 
 The law of husband and wife in respect of the wife's power to 
 bind her husband to a contract she has entered into since Jthe 
 marriage is best considered under two heads: — 
 
 (1.) When husband and wife are living together.
 
 72 
 
 HUSBAND AND WIFE. 
 
 Living to- 
 gether. 
 
 Debenham v. 
 Mellon. 
 
 Separated. 
 
 Necessaries, 
 what are. 
 
 (2.) When they are not. 
 
 (1.) When husband and wife are living together there is a pre- 
 sumption that the wife has her husband's authority to enter into 
 a contract so as to bind him for necessaries. But there are several 
 ways in which a husband may rebut the presumption. He may 
 show that at the time when his wife incurred the debt she itas 
 already properly supplied with necessaries, or, which is the same 
 thing, with money to purchase them ; he may show that he ex- 
 pressly forbade her to pledge his credit; he may show that he ex- 
 pressly forbade the plaintiff to trust her; or, lastly, he may show 
 that the credit was given to the woman herself (n). 
 
 Moreover, tbe presumption must now be taken subject to the 
 provision of the Married Women's Property Act, 1882, that 
 "every contract entered into by a married woman shall be 
 deemed to be a contract entered into by her with respect to, and 
 to bind, her separate property, unless the contrary be shown" (o). 
 
 Jolly v. Eecs was a short time ago brought under discussion, 
 and approved of, by the House of Lords in the case of Debenham 
 v. Mellon (p). 
 
 (2.) When husband and wife are living apart, the presump- 
 tion is that the w T ife has no authority to pledge her husband's 
 credit. And when the separation is the wife's own fault, when 
 she has left her home without just cause — e.g., to live with an 
 adulterer — this presumption cannot be rebutted. But if it is by 
 mutual consent that husband and wife are living apart, or if the 
 wife has been driven out of doors by her husband, or if his con- 
 duct at home is so abominable that no decent woman could live 
 under the same roof with him, she goes forth with implied au- 
 thority to pledge his credit for necessaries. If, however, the 
 husband makes his wife a sufficient allowance, or what she ac- 
 cepts as a sufficient allowance, when thus living separate, and 
 actually pays it, the tradesman cannot recover against her hus- 
 band (q) ; and it is not material that the tradesman had no notice 
 of this allowance (r). Probably, too, if the lady has money of 
 her own, or if she can earn it, she has no implied authority to 
 pledge her husband's credit (s). A pension during the Crown's 
 pleasure, however, would not exonerate the husband (t). 
 
 " Necessaries" are such things as may fairly he considered essen- 
 tial to the decent maintenance and general comfort of a person in the 
 social jiosition of the defendant's wife. But the w 7 ife has no implied 
 
 (n) Bentley v. Griffin, 5 
 Taunt. 356. 
 
 (o) 45 & 46 Vict. c. 75, s. 1, 
 sub-s. 3. 
 
 (p) L. P. 6 App. Ca. 33. 
 
 (7) Eastland v. Burchell, 3 Burr. 2177. 
 Q. B. D. 432. 
 
 (r) Mizen r. Pick, 3 M. & 
 W. 481. 
 
 f.s) Johnston v. Sumner, 3 H. 
 & X. 261. 
 
 (I) Thompson v. Hervey, 4
 
 HUSBAND AND WIFE. 73 
 
 authority to run into extravagance, and give orders quite beyond 
 the husband's means. The cases on the subject are numerous. 
 It has been held that a wife may make her husband liable lor the 
 cost of exhibiting articles of the peace against him (m), but not of 
 prosecuting him for an assault (x). So he may have to pay the 
 cost of legal advice to the wife respecting an anti-nuptial settle- 
 ment (y), and of successful divorce proceedings instituted against 
 him [z). But he will not generally be bound to repay a person 
 who has lent money to the woman (a); and if she has induced a 
 person to contract with her by fraudulently representing herself 
 to be unmarried, her husband will not be liable (b). On the 
 other hand, in cases where the wife had really no authority to 
 enter into a contract, the husband may by his conduct ratify and 
 accept the responsibility of it (c). 
 
 The wife's authority to pledge her husband's credit is not greater ^r a( j jjQg. 
 when her husband is mad than when her husband is sane. Where, band, 
 however, the husband before his insanity has held out his wife as 
 his agent to give orders on his behalf, a tradesman, who continued 
 to supply goods by order of the wife, and in ignorance of the in» 
 sanity, could recover the price of the goods against the husband. 
 See Drew v. Nunn, L. R. 4 Q. B. D. 661 {d). 
 
 It may be remarked that, to make the man liable on the wo- Cohabita- 
 man's contracts, it is not necessary that the strict relationship of tion. 
 husband and wife should exist between them. The presumption 
 of authority arises whenever a man and woman are cohabiting, if he 
 allows her to assume his name and treats her as part of his fam- 
 ily, and it is no answer to show that the plaintiff knew they were 
 not married (e). 
 
 The case of Smout v. I/berry is a well-known and sometimes Blades v 
 criticised authority. Thirteen years before in Blades v. Free (/) Free, 
 it had been held that the executors were not liable in such a case. 
 
 (u) Turner v. Rookes, 10 Ad. son v. Wood, 32 L. J. Ch. 400 
 
 & E. 47. (b) Liverpool Adelphia Loan 
 
 (a;) Grindell v. Gobmond, 5 Ass. v. Fairhurst, 9 Ex. 422, and 
 
 Ad. & E. 755. W T right v. Leonard, 11 C. B., N. 
 
 (y) Wilson v. Ford, L. R. 3 Ex. S. , 258. 
 
 63. ( c) Waithman v. Wakefield, 1 
 
 (z) Ottaway v. Hamilton, 3 C. Camp. 121. 
 
 P. D. 393. (d) Richardson v. Dubois, L. 
 
 (a) Knox v. Bushell, 3 C. B., R. 5 Q. B. 51. 
 
 N. S. , 335 ; but see Harris v. Lee, (e) Watson v. Threlkeld,2 Esp. 
 
 1 P.W r ms. 482; Jenner r.Morris, 637. 
 
 30,L. J. Ch. 361; Deare v. Sout- (/) 9 B. & C. 167. 
 ten,21 L. T., N.S., 523 and David-
 
 74 EXTENT OF AGENT'S AUTHORITY. 
 
 Extent of Agent' s Authority. 
 
 [33.] COX v. MIDLAND COUNTIES RAILWAY CO. 
 
 [3 Exch. 263 (1849).] 
 
 A labourer named Higgins took a ticket for the par- 
 liamentary train from "Whittington, near Birmingham. 
 As he was getting in, the guard signalled the train to 
 start, the consequence of which was that Higgins fell, 
 and the wheels went over his leg. On being picked up 
 he was taken to a neighbouring public-house, and Mr. 
 Davis, the local surgeon to the company, was sent for. 
 Mr. Davis came, pronounced it a bad case, and sent word 
 to the station-master at Birmingham that he should like 
 to have the assistance of Mr. Cox, the eminent hospital 
 surgeon at Birmingham. The station-master, on re- 
 ceiving this message, sent for Mr. Cox, who came im- 
 mediately to "Whittington, and amputated the labourer's 
 leg. 
 
 This action was on " assumpsit for work and labour 
 as a surgeon," and the question was whether the sta- 
 tion-master had power to bind the company to such a 
 contract. It was held that he had no such power. 
 "Though it might be a benefit," said the court, "to the 
 master to have the damage diminished by a speedy cure, 
 if he was really liable for that damage, it would be a 
 prejudice to him to be bound to pay if he was not; and 
 is the servant to decide whether his master is liable or 
 not — a man whom he has not appointed with any view 
 to the exercise of such a discretion? We think the 
 servant has clearly no such power. The employer of 
 an agent for a particular purpose gives only the author- 
 ity necessary for that agency under ordinary circum- 
 stances It would be a serious inconve- 
 nience to the public if the rule of law as appplicable 
 not merely to railway companies, but to all partner-
 
 EXTENT OF AGENT'S AUTHORITY. 75 
 
 ships and individuals, as to the extent of authority given 
 to an agent, were relaxed out of a compassionate feel- 
 ing, which it is difficult not to entertain towards the 
 suffering party, the present plaintiff. " 
 
 Agents are of two classes, general and particular. A general General and 
 agent is one whom his principal has placed in a certain posi- particular 
 tion, and who must, therefore, he taken, no matter what his pri- a S ents . 
 vate instructions may he, to have authority to do all acts which 
 are usually done by persons filling that .position. A particular 
 agent is one who is entrusted with a particular job, and must 
 strictly pursue his instructions. A general agent may deviate 
 from his instructions, and yet bind his principal : not so a partic- 
 ular agent : persons dealing with him are bound at their peril to 
 ascertain the extent of his authority (g). Thus, a horse dealer's "Warranty of 
 servant, must be assumed to have the authority to warrant, and horse, 
 the master will be bound although he expressly told the servant 
 not to warrant ; but if an ordinary person tells his servant to sell 
 a horse, and not to give a warranty with it, and the servant then, 
 in defiance of his orders, does give a warranty, it will not bind 
 the master (h). But though this distinction between the powers 
 of a general agent and those of a particular agent is perfectly 
 clear in theory, great difficulty arises in practice, and the student 
 will only get a clear idea of the subject (if at all) by comparing a 
 score or two of the cases. 
 
 Though (as we see in the leading case) a station-master may General 
 
 not, it has been held in a later case that the general manager of manager of 
 
 a railway companv»«a« pledge his masters' credit for medical ex- rai ' wa y com- 
 
 i \ v pany. 
 
 penses (i). r J 
 
 The master of a ship may pledge the credit of his owners for Master of 
 most purposes incidental to the due prosecution of the voyage ship. 
 (k) ; but the general manager of a mine has no implied authority Manager of 
 to borrow money in an emergency (I). mine. 
 
 A ship's husband cannot bind his owners by an agreement to Ship's hus- 
 cancel the charter-party (m). band. 
 
 In the recent case of Payne v. Leconfield (n), it was held that Auctioneer, 
 an auctioneer selling ahorse did not bind his employer by unau- 
 thorised statements which he made respecting it. 
 
 (g) Fenn v. Harrison, 3 T. R. (k) Arthur v. Barton, 6 M. & 
 
 762. W. 138; Beldon v. Campbell, 6 
 
 (h) Brady v. Todd, 9 C. B., Ex. 886. 
 
 N. S., 592; Howards. Shew- (/) Hawtayne v. Bourne, 7 M. 
 
 ard, L. R. 2 C. P. 148, and Bal- & W. 595. 
 
 dry v. Bates, 52 L. T. 620. («i) Thomas v. Lewis, 4 Ex. 
 
 (0 Walker v. G. W. Ry. Co., Div. 18. 
 
 L. R. 2 Ex. 223. (n) 30 W. R. 814.
 
 76 
 
 EXTENT OF AGENT'S AUTHORITY. 
 
 Agency of 
 
 uecessity. 
 
 Agent cannot 
 employ sub- 
 agent. 
 
 Architect 
 employing 
 quantity sur- 
 veyor. 
 
 Ratification. 
 
 Goods sup- 
 plied to club. 
 
 Sometimes the law implies an authority to contract for an- 
 other so as to bind him from the necessity of the occasion. Thus 
 in a case in which a man had sent a horse down from King's 
 Cross to Sandy, but had not given any address, or told anyone to 
 meet it, it was held that the railway company had authority to 
 incur livery stable expenses on behalf of the owner (o). 
 
 An agent cannot generally employ a sub-agent to do the work 
 of his agency. There are, however, exceptions to this rule. 
 Thus, by usage of trade, an architect receives implied authority 
 from those who employed him to engage a person to make calcu- 
 lations and take out quantities, and this person may claim remu- 
 neration from the employers of the architect, though they were 
 unaware of his existence (p). 
 
 Though an ageDt may have exceeded his authority in such a 
 way that his principal is not bound, still the principal may, if 
 he pleases, ratify the unauthorised contract. Omnis ratihabitio 
 retrotrahilur ct mandato priori aequiparatur. Very slight evidence 
 of ratification is sufficient, but the principal cannot ratify part 
 and repudiate the rest. He must take all or none (q). It is nec- 
 essary that the agent should have professed to act as agent merely. 
 If he assumed to act on his own account, there can be no ratifi- 
 cation. For this reason (amongst others) it was held that a per- 
 son whose name had been forged on a promissory note could not 
 ratify the act of the forger, and accept the paternity of the docu- 
 ment (r). 
 
 Questions of agency occasionally arise with regard to goods 
 supplied to a club. In the case of a proprietary club, no one is 
 liable except the proprietor himself. In the case of a mem- 
 bers' club, the committee are liable, but not the other members, 
 unless it can be shown that they individually assented to the 
 orders given, or authorised the committee to pledge their credit (s). 
 
 A word may be said here about the authority of legal advis- 
 ers. Besides the conduct of formal proceedings, a solicitor re- 
 tained in an action has a general authority to act for his client 
 in matters of discretion within his province. He can, for in- 
 stance, waive irregularities, and can refer or compromise an ac- 
 tion. A solicitor stands on a different footing from a barrister, 
 because if he goes wrong, he can be sued for his negligence or 
 unskillfulness, while a barrister (at present) cannot. The great 
 
 (o) G. N. Ry. Co. v. Swaffield, 
 L. R. 9 Ex. 132. 
 
 {p) Moon v. Witney Guar- 
 dians, 3 Bing. N. C. 817. But, 
 of course, in the case put the 
 plaintiff would have clearly to 
 prove the custom, and it is be- 
 lieved that some doubt exists 
 on that point, see also Skinner 
 v. Weguelin, 1 C. & E. 12. 
 
 (q) Hovil v. Pack, 7 East, 
 1G4. 
 
 {>■) Brook v. Hook, L. R. 6 
 Ex. 89. 
 
 (s) Cullen t*. Queensbwrv, 1 
 Br. P. C. 101 ; Flemvng v. 
 Hector, 2 M. & W. 172 ; Todd 
 v. Emly, 7 M. &. W. 427. 
 
 (0 1 C. B, N. S. 364.
 
 FRAUD OF AGENT. 77 
 
 cases of Swinfen v. Swinfen (/), unci Swinfen r. Lord Chelms- 
 ford (u), should be consulted on the whole of this subject. 
 
 Responsibility of Principal for Fraud of Agent. 
 
 OORNFOOT r. FOWKE! [34.] 
 
 [6 M. & W. 358 (1840).] 
 
 In this case a Leicestershire baronet had been terri- 
 bly taken in about a house. The agent who showed it 
 him had made a mis-statement about it, but in perfec; 
 good faith ; and there had been equal good faith on the 
 part of his principal. This being so, it was held that 
 the baronet could not get out of his agreement on the 
 ground of fraud. "I think it impossible," said Alder- 
 80D, B., "to sustain a charge of fraud, when neither 
 principal nor agent has committed any: the principal, 
 because though he knew the fact, he was not cognizant 
 of the misrepresentation being made, nor even directed 
 the agent to make it; and the agent, because, though 
 he made a misrepresentation, yet he did not know it to 
 be one at the time he made it, but gave his answer 
 bond fide." 
 
 It should be stated, however, that Lord Abinger, C.B , 
 in a learned and exhaustive judgment, dissented from 
 the view of the majority, sayiDg that it was "a matter 
 that appeared to him, but for their opinion, too plain 
 to admit of a doubt." 
 
 It is far from chimerical to suppose that the case of Corn foot v. Leadingcases 
 Fowke will. some day be overruled in favour of the view there uu- °* doubtful 
 successfully contended for, and of the principle that if a man, ' ^' 
 
 having no knowledge whatever on the subject, takeson himself to 
 represent acertain state of facts to exist, he does so at his peril (a?). 
 
 (m) 5 H. & N. 890. (.r) See Fuller v. Wilson, 3 Q. 
 
 B. 58. 
 
 7 COMMON LAW.
 
 78 
 
 FRAUD OF AGENT, 
 
 bat not quite The recent case of Ludgater i\ Love (y) (where the principal's son 
 overruled by innocently said what his scoundrel of a father told him to say 
 Ludgater v. about the condition of some sheep he was selling) is undoubtedly 
 another nail in the coffin of the leading case, but Ludgater v. 
 Love is to be distinguished from Cornfoot v. Foukc on the ground 
 that in the former case the jury expressly found that the defend- 
 ant fraudulently concealed from his son that the sheep had the rot, 
 with a view to his representing them as sound and getting the 
 » best price for them. 
 
 Fraud of But whatever doubt there may be as to the liability of a fraud- 
 
 agent fraud ulent principal for the acts of an innocent agent, there would 
 principal. seem to be none now as to the liability of an innocent principal 
 for the fraud of his agent. In such cases, the fraud of the ayent 
 is the fraud of the principal, so that the latter cannot take any ad- 
 vantage or benefit from it, and, on the other hand, is liable to an 
 action for it. For authority for this proposition, the student may 
 refer to the cases of Udell v. Atherton, 7 H. & N. 172; Barwick 
 v. English Joint Stock Bank, L. R. 2 Ex. 259; Blake v. Albion 
 Life Assurance Society, 4 C. P. D. 94; Swift v. Jewsbury, 
 L. Pt. 9 Q. B. 301; Weir v. Bell, 3 Ex. Div. 238; Mackay v. Com- 
 mercial Bank of New Brunswick, L. R. 5 P. C. 394; Swire v. 
 Francis, 3 App. Ca. 106; Chapleo v. Brunswick Building Society, 
 6 Q. B. D. G9G; Mullens v. Miller, 52 L. J. Ch. 380; and Baldry 
 v. Bates, 52 L. T. 620. 
 
 Bribes to An agent is not allowed to make a surreptitious profit out of 
 
 agents his agency, but must account to his employer for everything he 
 
 receives. Nor can he maintain an action to recover such illegal 
 profit or commission from the person who has promised it him. 
 Moreover, if I catch my agent selling me to the other side in this 
 way — no matter how many abominable trade customs can be pro- 
 duced in support of such dishonesty — I am generally entitled to 
 rescind the contract. See. on this subject, the cases of Panama, 
 &c, Co. v. Indiarubber, &c,, Co., L. R. 10 Ch. App. 515; Harring- 
 ton r. Victoria Graving Dock Co., 3 Q. B. D. 549; Williamson v. 
 Barbour, 9 Ch. D. 529; Bagnall v. Carlton, 6 Ch. D. 371; and 
 Metropolitan Bank v. Heiron, 5 Ex. D. 319. 
 
 (y) 44 L. T., N. S. 634.
 
 UNDISCLOSED PRINCIPALS. 79 
 
 Undisclosed Principals, &c. 
 
 PATERSON r. GANDASEQUI. [35.] 
 
 [15 East, G2 (1812).] 
 
 Gandasequi, an enterprising Spanish merchant, made 
 up his mind that the foreign market could do with some 
 silks and satins. He accordingly set sail for England, 
 and, on reaching London, went to Larrazabal and Co., 
 certain agents in the City, and commissioned them to 
 buy a quantity of goods for him. Larrazabal and Co. 
 proceeded to execute the commission, and asked Pater- 
 eon and Co., a great hosiery firm, to send certain speci- 
 fied articles with terms and prices. Now, Paterson and 
 Co, knew Larrazabal and Co., and had perfect confidence 
 in them, but Gandasequi they did not know, and had 
 no confidence jn. Therefore, though they sent the goods 
 and though they knew perfectly well that they were 
 really for Gandasequi, and that Larrazabal and Co. were 
 merely his agents in the matter, yet for all that they 
 booked the goods as sold to Larrazabal and Co. This 
 was unfortunate, because it happened that Gandasequi 
 was really a more substantial person than his agents, 
 who shortly afterwards became bankrupt. Paterson was 
 not disposed to be content with the fraction of his debt, 
 which, as a creditor in bankruptcy, he might have got 
 from Larrazabal and Co., and, with the laudable object 
 of getting the whole of his money, sued Ganda.-:equi. 
 
 But it was held that, if the seller of goods knows that 
 the person he deals with is only an agent and knows 
 also icho his principal is, and in spite of that knowledge 
 chooses to give the credit to the agent, he must stand 
 by his choice, and cannot sue the principal.
 
 80 UNDISCLOSED PRINCIPALS. 
 
 [36.] DAVENPORT v. THOMSON. 
 
 [9 P>. & C. 48 (1829).] 
 
 A person named McKune carried on at Liverpool the 
 business of a "general Scotch agent." One day he re- 
 ceived a letter from some clients of his in Scotland to 
 the following purport: — 
 
 " Dumfries, 29th March, 1823. 
 " Dear Sir, — Annexed is a list of goods which you 
 will please procure and ship per Nancy. Memorandum, 
 of goods to be shipped: — twelve crates of Staffordshire 
 ware, crown window glass, ten square boxes, &c, &c. 
 
 " Yours, &c, 
 
 "Thomson and Co." 
 
 On receiving this letter, McKune went straight to the 
 shop of Davenport and Co., who were glass and earth- 
 enware dealers, and had an interview with their head 
 partner. He did not pretend to be buying for himself. 
 He said he had received an order to purchase some goods 
 for some clients in Scotland, but he did not mention 
 their name, and the Davenports did not ask for it. They 
 sold about £200 worth of goods and debited McKune, 
 though they knew perfectly well he was only an agent. 
 Then McKune failed without having paid Davenport 
 and Co. 
 
 This was an action by Davenport and Co. against 
 McKune's principals, Thomson and Co., who denied 
 their liability on the ground that Davenport and Co. 
 had debited McKune, and could, therefore, look only 
 to him for payment, This view, however, was not adopted 
 by the court, and Thomson and Co. were made to pay, 
 the principle being that, as the name of the real buyer 
 had not been disclosed to them by the agent, the sellers 
 had had no opportunity of icriting him down as their 
 debtor.
 
 UNDISCLOSED PKINCIPALS. 81 
 
 The chief rules, relating to transactions with an agent, who Three cardi- 
 acts with authority to bind his principal, are these: — mil rules. 
 
 1. If you contracted with a man whom you know to be an 
 agent, and who names his principal to you at the time of the 
 contract, there is prima facie no contract at all with the agent. 
 The principal is the proper person to sue and to be sued. Of course 
 the agent may, if lie chooses, render himself liable as a contract- 
 ing party, or there may from the very nature of the case be also 
 a remedy against him, as where he himself has an interest in the 
 subject-matter of the contract. And it may be, as we have seen, 
 that credit may be given to the agent, and to the agent alone, to 
 the exclusion of all remedy against the principal. 
 
 There is, however, an exception to the general rule, founded on Foreign mer- 
 
 public convenience of mercantile usuages, namely, that where a cnant buying 
 
 °Dods in 
 merchant abroad buys goods in England through an agent, the E n <ri an( i 
 
 seller, in the absence of evidence of express authority to the agent through 
 to pledge his foreign constituent's credit, contracts with t/i£ agent, agent, 
 and there is no contract or privity between him and the foreign 
 principal (z). 
 
 There may also be noticed a technical rule that those persons Indentures, 
 only can sue or be sued upon an indenture, who are described in 
 it as parties thereto (a). And in consequence of this rule, when 
 a deed purports to be the deed of the agent (b), and the princi- 
 pal is not named as a party, the latter cannot sue or be sued 
 upon the indenture. • 
 
 2. When you deal with a man whom you know to be an agent, 
 but who does not name his principal to you at the time of the 
 contract, the agent in prima facie liable on the contract as well as 
 the principal, since you cannot be expected to give credit exclu- 
 sively to a person whose very name is unknown to you. But 
 where it clearly appears on the face of the contract that the 
 agent is not pledging his personal credit, although he may not 
 disclose the name of his principal, still upon a contract so framed 
 the agent could not be personally liable. Evidence of custom 
 
 would, however, be admissible (c) to show that it was intended Evident f 
 that the agent should himself be bound. Thus, where a charter- custom ad- 
 party was expressed to be made (<7) between the plaintiffs and missible to 
 the defendants "as agents to merchants," and the defendants' charge agent, 
 signature to the contract was expresed to be by them " as agents to 
 merchants." evidence was tendered on the part of the plaintiffs, 
 and admitted, of a trade usage that, if the principal's name is 
 not disclosed within a reasonable time after the signing of the 
 
 (2) Hutton v. Bulloch, L. R. (c) Humfrey v. Dale, E. B. 
 
 9 Q. B. 572, and Die Elbinger, & E. 1004. 
 
 &c, v. Claye, L. K. 8 Q. B. 313. (d) Hutchinson v. Tatham, 
 
 (a) Southampton v. Brown, L. K. 8 C. P. 482; and Hutclie- 
 6 B. & C. 718. son v. Eaton, L. R. 13 Q. B. D. 
 
 (b) In re Pickering's claim, 861. 
 L. R. 6 Ch. Ap. 525.
 
 UNDISCLOSED PRINCIPALS. 
 
 Signing 
 without 
 qualtfication 
 
 Agent may 
 limit his 
 responsi- 
 bility. 
 
 Election 
 within 
 reasonable 
 time after 
 discovery. 
 
 Agent con- 
 tracting dis- 
 tinctly as if 
 
 principal. 
 
 Charter-party, in such case the brokers shall be personally liable. 
 Evidence, however, would not have been admitted to prove a 
 cust in that the defendant should be liable under all circum- 
 stances, inasmuch as that would be to contradict the document 
 itself, and not merely to add a term which is not inconsistent 
 with any term of the contract (dd). 
 
 When a man signs a contract in his own name without any 
 qualification, even although in the body of the document there 
 may be some expressions tending to show that he is acting for 
 another, he must nevertheless be taken to have intended to bind 
 himself as principal (e). In order to exempt himself he must 
 make it appear clearly (/) on the face of the contract that he did 
 not intend to be liable as a principal. 
 
 But the agent may limit his responsibility by the insertion of 
 special provisions. Thus, in a well-known case {(/), a charter- 
 party was executed by one Yglesias, as agent for the freighter, 
 and his signature was unqualified, but the instrument contained 
 a proviso that the agent's liability should cease as soon as the 
 cargo was shipped. The Court held that Yglesias was the con- 
 tracting party and liable upon the contract, but that, neverthe- 
 less, it was quite competent for him to say, " I am making this 
 contract for an unknown principal, and I will not be liable after 
 the cargo is shipped." 
 
 3. When' you deal with a man who, though really an agent, is 
 not known by you to be such at the time that you enter into the 
 contract, the undisclosed principal is, as a rule, bound by the 
 contract, and entitled to enforce it as well as the agent with 
 whom you made the contract in the first instance. But if you 
 determine to sue the principal on the contract, you must make 
 your election to do so within a reasonable time after discovering 
 that there was really a principal behind the scenes (/*); other- 
 wise you will be estopped, from pursuing any remedy except 
 that against the agent with whom you originally contracted. 
 So, too, if you deal with the agent so as to lead the principal to 
 believe that the agent only will be held liable, and thus preju- 
 dice the principal in his relations with his agent (i). 
 
 It should, moreover, be noticed that where an agent has con- 
 tracted in such terms as to lead anyone to suppose that he was 
 himself the true and only principal, the principal cannot come 
 forward and take advantage of the contract made for him by his 
 agent. In one case (/•) a widow brought an action on a charter- 
 
 (dd) See Barrow v. Dyster, 
 13 Q. B. I). 635. 
 
 (ej Paice v. Walker, L. R. 5 
 Ex. 17:1; Southwell v. Bow- 
 ditch, 1 C. P. D. 100; and Mc- 
 Collin r. Gilpin, (1 Q. B. D. 516. 
 
 (/) Hou.iih v. Manzanos, 4 
 Ex. Div. 104; and see < )i;den v. 
 Hall, 40 L. T., N. S. 751. 
 
 (r/) Oglesby v. Yglesias, E. 
 B. & E. 930. 
 
 (//) Smethurst v. Mitchell, 1 
 E. & E. 622. 
 
 (/) Wvatt v. Hertford, 3 
 East, 147. 
 
 (A) Humble v. Hunter, 12 Q. 
 B. 310.
 
 UNDISCLOSED PRINCIPALS. 83 
 
 patty for freight, &c. She "was the owner of n ship called the Humble v 
 Ann. But on the production of the charter-party it appeared Hunter. 
 
 that her s m, who had acted as her agent in the making thereof, 
 had signed an agreement running thus: " It is mutually agreed 
 between C. T. Humble, Esq,, owner of the good ship or vessel 
 
 called the Ann, and Jameson Hunter," &c. [twas held that, as 
 the document itself described the son as ''owner," the plaintiff 
 must he considered as hound by this assertion of title to the sub- 
 ject-matter of the contract, and that she could not take the ben- 
 efit of the contract. 
 
 Thero aro dicta contained in the judgments i:i Thomson v. Da- Heald v. 
 venport which suggest i:i t he w idest terms that a seller is not en- Kenworthy. 
 titled to sue the undisclosed principal on discovering him, if in 
 the meantime the state of account between the principal and the 
 
 agent has been altered to the prejudice of the principal. 
 
 But a more accurate statement, of the law is contained in the 
 judgment of Parke, 15., in Heald r. Kenworthy (/). "If the con- 
 duel of the seller would make it unjust for him to call upon the 
 buyer for the money, as, for example, where the principal is in- 
 duced by the. conduct of the, seller to pay his agent the money, on 
 the faith that the agent and the seller have come to a settlement 
 on the matter; or if any representation to that effect is made hy 
 the seller, either by words or conduct, the sellercannot afterwards 
 throw off the mask and sue the principal." This was the view 
 adopted by the Court of Appeal in a recentcase (m) where thede- Irvine v. 
 fendants had employed Conning, a broker, to buy oil for them. Watson. 
 The broker accordingly bought of the plaintiff-;, informing them 
 at the time of the sale that he was buying for principals, though 
 he did not tell them who those principals were. The terms of 
 the sale was "cash 0:1 or before delivery," bid there is no invaria- 
 ble custom inihetradeto insist on prepayment. The oil was deliv- 
 ered to Conning by the plaintiffs but not paid for and the de- 
 fendants, not knowing that the plaintiffs had not been paid, paid 
 Conning the amount due for the oil. It was held that the fact of 
 the defendants having paid the broker did not preclude the plain- 
 tills from suing for the price, unless, before such payment, they 
 had by their conduct induced the defendants to believe that they 
 had already been paid hy the broker. And the Court considered 
 that under the circumstances the, man's omission to insist on pre- 
 payment was not such conduct as would reasonably induce such 
 belief. So, in the recent case of Davidson v. Donaldson (re), where Davison '' 
 the action was brought against a part owner of a ship for the Donoldson. 
 price of beef and stores for the ship supplied on the order of a 
 man named Tate, who was ship's husband and managing owner, 
 the defendant was held liable, though several years had elapsed, 
 
 (/) 10 Ex. 739. Q. B. D. 51 I. 
 
 (m) Irvine v. Watson, L. K. 5 («) 1) Q. li. D. G'2'3.
 
 84 UNDISCLOSED PRINCIPALS. 
 
 during which the plaintiff hud applied to Tate for payment, and 
 the defendant had more than once settled accounts with Tate. 
 " I think," said Bo wen, L. J., "that the plaintiff must succeed, 
 on the ground that there was no misleading conduct." 
 
 Set-off Against Factor* s Principal. 
 
 [37,] GEORGE v. GLAGETT. 
 
 [7 T. R. 359 (1795).] 
 
 Messrs. Rich and Heapy carried on business in wool- 
 len cloths, not only on their own account, but also as 
 factors for other people; and as they carried on all their 
 business at the same warehouse, it would not be obvious 
 when they were acting as principals and when as agents. 
 At the time of our story Messrs. Rich and Heapy hap- 
 pened to have in their possession as factors a large 
 quantity of goods belonging to Mr. George, a clothier 
 of Frome, which goods were in their warehouse along 
 with goods belonging to themselves. It happened just 
 then that Messrs. Clagett were in want of such goods. 
 They held a bill of exchange for £1200, accepted by 
 Rich and Heapy, and as they saw no particular likeli- 
 hood of getting paid, they thought it would not be a 
 bad plan to buy goods from them on credit, and deduct 
 the amount of the bill from the purchase-money. Messrs. 
 Rich and Heapy, accordingly, sold them a quantity of 
 goods, making out a bill of parcels for the whole in 
 their own names, and Messrs. Clagett fully believed that 
 they were dealing with principals. The goods were 
 taken out of one general mass in the warehouse, so that 
 a large portion of them really belonged to the clothier 
 of Frome. 
 
 This was an action by that unfortunate person against 
 Messrs. Clagett for the price or the portion of the goods
 
 SET-OFF AGAINST FACTOR'S PRINCIPAL. 85 
 
 which belonged to hiin, and which ho said Messrs. Rich 
 and Heapy had sold as his agents. Messrs. Clagett said 
 they did not know that Rich and Heapy were his agents 
 or anybody else's agents, and claimed to have the same 
 right of set-off (that is to say, of deducting the above- 
 mentioned debt) against him which they would have 
 had against them. In this contention they were sue 
 cessful. 
 
 ' ' In all these cases of set-off, ' ' says Lord Truro in a later case (o), Principle of 
 " the law endeavours to meet the real honesty and justice of the leading case, 
 case. Where goods are placed in the hands of a factor for sale, 
 and are sold by him under circumstances that are calculated to 
 induce, and do induce, a purchaser to believe that he is dealing 
 with his own goods, the principal is not permitted afterwards to 
 turn round, and tell the vendee that the character he himself has 
 allowed the factor to assume did not really belong to him. The 
 purchaser may have bought for the express purpose of setting 
 off the price of the goods against a debt due to him from the 
 seller.'' 
 
 The words put the rule and its reason very clearly. And Lord 
 Truro goes on, — 
 
 " But the case is different where the purchaser has notice at 
 the time that the seller is acting merely as the agent of another. 
 In that case there would be no honesty in allowing the purchaser 
 to set-off a bad debt at the expense of the principal." 
 
 As to this last point, the effect of the decisions seems to be that Means of 
 
 although the defendant had the means of knowing that he was knowingdoes 
 
 dealing with an agent, and did not make use of them, he is still n amount 
 
 to actual 
 entitled to his right of set-off. But, of course, the fact that a man knowledge 
 
 has ready to hand the means of knowing a thing is evidence, to 
 
 some extent [p), that he actually docs know it. 
 
 We see, then, that if a factor sells goods as his own, and the 
 
 buyer knows nothing of any principal, the buyer may set-off 
 
 against the concealed principal any demand he might have set-off 
 
 against the factor. But it has been held, where the factor has 
 
 meanwhile become bankrupt, that a mutual credit not amounting iyT u t ua i 
 
 to ordinary set-off could not be set up in an action brought by the credit. 
 
 unknown principal against the buyer (5), that is to say, that the 
 
 mutual credit clauses of the bankrupt law did not apply as against 
 
 the principal. This decision has been thought to establish that 
 
 (0) Fish v. Kempton, 7 C. B. (p) Borriesc. Imp. Ott. Bank, 
 
 687 ; and see the recent case of L. R. 9 C. P. 38. 
 
 Maspons v. Mildred, 30 W. R. (q) Turner v. Thomas, L. R. 
 
 862. 6 C. P. 610.
 
 86 
 
 SET-OFF AGAINST FACTOR'S PRINCIPAL. 
 
 Unliquidated 
 damages. 
 
 Warner v. 
 Mackay. 
 
 Knowledge 
 of agent is 
 knowledge of 
 principal. 
 
 Principle of 
 leading case 
 not appli- 
 cable to 
 brokers. 
 
 the principle of George v. Cldtjett does not extend to a set-off of 
 unliquidated damages ; but it cannot be extended to support such 
 a wide proposition. The true deduction would seem to be that 
 the rule in George v. Clagett only applies to what can be said to be 
 a proximate motive in dealing with the factor ; and the court was 
 of opinion that his bankruptcy and the mode thereon of settling 
 with his assignees could not be taken to be socontemplated. 
 
 Of course, where a factor sells as factor, the purchaser cannot 
 set-off, in a:i action by the principal for the price of the goods, a 
 debt due to him from the factor. But, in a case where the pur- 
 chaser bond fide believed (r) that the factor was selling to repay 
 himself advances, the purchaser was allowed to set-off payments 
 on account made by him to the factor. Whatever may have been 
 the ground of this decision, and whether or not it is capable of 
 being supported, it must not be taken (s) to break in upon the 
 principles already stated. 
 
 It must, too, be observed that where the buyer employs an agent 
 to act for him in the matter of the purchase, and this agent of the 
 purchaser has knowledge that the goods are not the goods of the 
 factor, though sold in the factor's name, the knowledge of the 
 agent, however acquired, is held to be the knowledge of the buyer 
 himself (0 ; so that in an action by the factor's principal against 
 the purchaser for the price of the goods, the defendant is affected 
 by such knowledge of the agent, and is not, therefore, entitled to 
 set-off a debt due to him from the factor against the plaintiff's 
 claim. 
 
 The principles enunciated above with regard to the right of 
 set-off, though applicable to the case of a factor, must not be con- 
 sidered to apply in any way to the case of a broker, whose posi- 
 tion differs from that of a factor in many important particulars. 
 A broker is not trusted with the possession of the goods to be 
 sold, and he ought not to sell in his own name (m). The princi- 
 pal, then, who trusts a broker has a right to expect that he will 
 not sell in his own name, and the purchaser could not well he led 
 to believe that the broker was the actual owner of the goods, 
 which were to form the subject-matter of the sale. 
 
 In Stevens v. Biller (>) it was held that an agent who is en- 
 trusted with the possession of goods for the purpose of sale does 
 riot lose his character of factor, or the right of lien attached to it, 
 by reason of his acting under special instructions from his princi- 
 pal to sell the goods at a particular price and to sell in the prin- 
 cipal's name. "A factor," said Cotton, L.J., "can sell iD his 
 
 (r) Warner v. Mackay, 1 M. 
 & W. 591. 
 
 (.<*) See per Cresswell, J., in 
 Fish r. Kempton. sup. 
 
 (t) Dresser v. Norwood, 17 C. 
 
 B. r N. S., 574. 
 
 (u) Baring v. Corrie, 3 B. & 
 Aid. 137. 
 
 (x) 25 Ch. Div. 31.
 
 SET-OFF AGAINST FACTORS PRINCIPAL. 87 
 
 own name as against his principal whatever restrictions there 
 may he in his instructions. It is not essential for the purpose of 
 giving him a general lien that he should he free from any restric- 
 tion as to the name in 'which he shall sell the goods. No cases 
 were cited hefore us for such a proposition, and a case was cited 
 before Mr. Justice Chitty to the contrary — ex parte Dixon (y). 
 That case shows that if a factor sells in his own name, although 
 contrary to the instructions of his principal, it will give a right 
 of set-off as between the purchaser and factor; it will not take 
 away his character of factor. - ' 
 
 This appears to he a convenient place to mention the existence Factors Act. 
 of certain Acts called the Factors Acts (.r). In a recent case [a) in 
 the House of Lords Lord Blackburn observed that the old com- 
 mon law rule, that no man could confer a greater title than he 
 himself had, has been found in modern practice to be inconve- 
 nient to its full extent in commercial transactions, especially since 
 the practice of advancing money upon the security of goods and 
 merchandise came to be so important as it is; and that, therefore, 
 it had been found necessary to introduce modifications of that 
 principle into the law of this country. "These modifications were 
 introduced,' continued his lordship, "by the Factors Acts, which 
 define, and regulate, and show to what extent the modifications 
 are given. They at once modify the law and show how far it is 
 to be modified. It is sufficient to state briefly that the decision 
 in Cole c. The North Western Bank (b) conies to this, that an Cole v. North 
 agent who can pledge or sell must bean agent of that class which, Western 
 like factors, taking almost the words of Willes, J., in Heyman v. Bank. 
 Flewker (c), "have a business which, when carried to its legiti- 
 mate result, would properly end in selling or in receiving pay- 
 ment for goods. That would be a kind of class, factors and agents 
 in the class of factors. If such a person is entrusted, and is en- 
 trusted in that capacity, then, in the absence of bad faith on the 
 part of the pledgee, the pledge is good. If it is not, you must 
 fall back on some other principle to make it good inlaw." It 
 would lie impossible in a work of this character to attempt any- 
 thing like an exhaustive summary of the provisions of the Fac- 
 tors Acts, but their effect is thus shortly given in Chitty's Stat- 
 utes— 
 
 "First, where goods, or documents for the delivery of goods, 
 are pledged as a security for present or future advances (r/). with 
 the knowledge that they are not the property of the factor, but 
 without notice that he is acting without authority, in such cases 
 the pledgee acquires an absolute lien. 
 
 (y) 4 Ch. Div. 133. (b) L. B. 10 C. P. 3.">4. 
 
 (2) G & 7 Geo. IV. c. 94, and (c) 13 C. B., N. S. 519. 
 5&G Vict. c. 32. (d) Kaltenbach v. Lewis, 24 
 
 (a) City Bank v. Barrow, 5 Ch. D. 54. 
 A pp. Ca. 667.
 
 88 SET-OFF AGAINST FACTOR'S PRINCIPAL. 
 
 "Secondly, where goods are pledged by the factor, without no- 
 tice to the pledgee that they are the property of another, as a se- 
 curity for a pre-existing debt, in that case the pledgee acquires 
 the same right as the factor had. 
 
 "Thirdly, where a contract to pledge is made in consideration 
 of the delivery of the goods or documents of title upon which 
 the person delivering them up had a lien for a previous advance 
 (which is deemed to be a contract for a present advance), in that 
 case the pledgee acquires an absolute lien to the extent of the 
 value of the goods given up." 
 
 The principle of these Acts has been extended by a recent 
 statute (e), which affords further protection to innocent pledgees 
 and purchasers from factors. It amends the law with respect to 
 the secret revocation of entrustment or agency, and places a 
 vendor who is permitted to retain the documents of title (/) in 
 the position of an agent under the former Factors Acts. There 
 is, too, a similar provision with regard to vendees who have been 
 permitted to obtain possession of the documents of title; and the 
 transfer of a document of title to a person who takes the same 
 bond fide, and for valuable consideration, is to have the same ef- 
 fect for defeating a vendor's lien or right of stoppage in transitu, 
 as the transfer of a bill of lading has for defeating the right of 
 stoppage in transitu. 
 
 Agent exceeding Authority Liable in Contract. 
 
 [38.] OOLLEN r. WRIGHT. 
 
 [8 E. & B. G47 (1857).) 
 
 Mr. "Wright was the land agent of a gentleman named 
 Dunn Gardner, and, professing to have authority to do 
 so, he made an agreement with a Mr. Collen for the lease 
 to him for twelve and a-half years of a farm of Dunn 
 Gardner's. On the strength of this agreement Collen 
 entered on the enjoyment of the farm; but he soon 
 found that there was a serious difficulty in the way. 
 
 (e) 40 & 41 Yict. c. 39. (f) Johnson v. Credit Lyon- 
 
 nais Co., 3 C. P. D. 32.
 
 AGENT EXCEEDING AUTHORITY. 89 
 
 Mr. Dunn Gardner refused to execute any such lease, 
 saying that he had never authorised Mr. Wright to agree 
 for a lease for so long a term; and this proved to be 
 the fact. 
 
 This was an action by the disappointed farmer 
 against the executors of the agent "who had led him 
 wrong, and the main question was whether Wright's 
 assuming to act as Dunn Gardner's agent to grant the 
 lease amounted to a contract on his part that he had 
 such authority. This was the view ultimately adopted, 
 so that Wright's executors became liable to Collen. 
 
 When a man enters into a contract representing himself as 
 agent for a person named at the time the contract was made, the 
 law will not allow him to shift his position and sue as principal 
 on the contract, "declaring himself principal and the other a 
 creature of straw." This was clearly laid down in Bickerton v. Bickerton v. 
 Burrell (</), where the plaintiff had, at a sale hy auction, signed Burrell. 
 a memorandum of purchase as agent for a named principal, and, 
 then, in an action to recover the deposit he had paid to the auc- 
 tioneer, sought to give evidence that he was really the principal 
 in the matter. It is true that a Court of Equity (h) has taken a 
 view adverse to the decision in Bickerton v. Burrell, but the au- 
 thority of the cas% in Equity has been much questioned. 
 
 It must, too, be carefully noticed that, when the contract has Acceptance 
 been in part performed by the plaintiff acting as an agent (/), and of part per- 
 that part performance has been accepted by the defandant with ">rmance. 
 full knowledge that the plaintiff was not the agent but the real 
 principal, then the action is clearly maintainable. 
 
 The true principal of the cases would seem to be, that, on the 
 professed agent giving the other party notice of his real position 
 before action brought, it is open to the other party either to 
 repudiate the contract altogether, or to ratify it expressly in 
 words or impliedly by his conduct. 
 
 Although the circumstances may be such that the professed Agent liable 
 agent cannot sue upon the contract, nevertheless, as we have seen as on implied 
 from Collen v. Wright, he is liable for the damages sustained by warranty. 
 reason of the assertion of authority being untrue He cannot in- 
 deed, be sued upon the contract itself, but he is liable on an im- 
 plied warranty of authority, 
 
 (g) 5 M. & S. 383. (/) Rayner v. Grote, 15 M. & 
 
 (A) Fellows v. Gwydyr, 1 W. 359. 
 Euss. & M. 83.
 
 90 
 
 AGENT EXCEEDING AUTHORITY. 
 
 No principal 
 really exist- 
 
 Ratification. 
 
 Agent not 
 disclosing 
 name of 
 principal. 
 
 Cases often arise -where a contract is signed by one who professes 
 to be signing "as agent " for a named principal, but where ihcre 
 is mi such "principal existing at the time, so that the contract would 
 be altogether inoperative unless binding upon the person who 
 signed it; as, e.g., where the alleged principal is entirely ficti- 
 tious, or where a man enters into an engagement on behalf of a 
 company which has not, at the time of the contract, obtained any 
 legal existence {k). In such cases, the professed agent is person- 
 ally bound by the contract, it being assumed, on the principle 
 ut res magis valeat quam pereat, that it was in the contemplation 
 of the parties at the time of the making of the contract that the 
 person signing it would be bound thereby. Moreover, in such 
 cases, there would, as a general rule, seem no reason, in the ab- 
 sence of fraud, why the professed agent should not sue on the 
 contract in his own name, at any rate in the respect of executed 
 contracts. 
 
 But, it must be noticed that, when there is no principal in 
 existence at the time of the contract, there can be no subsequent 
 ratification. Thus, in an action (7) on a cheque drawn by the 
 promoters of a company before the company had acquired any 
 legal existence, it was sought to relieve the promoters from re- 
 sponsibility by showing a subsequent ratification and adoption by 
 the company. This contention was, however, unsuccessful, as 
 "ratification can only be by a person ascertained at the time of 
 the act done, by a person in existence either actually or in con- 
 templation of law." 
 
 There yet remains one case of professed agency to be considered, 
 namely, where a man holds himself out as agent, but does not 
 make known the name of his alleged principal ; as, where (m) a char- 
 ter-party was expressed to be made between the defendant as 
 owner of the ship of the one part and "G. Schmaltz & Co. (agents 
 of the freighters) of the other part." It was held that notwith- 
 standing the terms of the charter-party. Schmaltz & Co. might 
 prove that they were in reality the freighters and their own prin- 
 cipals; and, on proof of their being so, were entitled to recover 
 in their own name. And, con versely, no doubt, Schmaltz & Co. 
 might have been sued on the contract, on proof being given that 
 they were really the principals in the transaction. "We have seen 
 from the notes to Paterson v. Gandasequi that had there been in 
 truth any freighters behind the back of Schmaltz &Co., this firm 
 could neither have sued nor been sued on the charter-party, in« 
 asmuch as the document was framed so as to exclude the per- 
 sonal liability of the so-called agents. 
 
 (k) Kelner v. Baxter, L. R. 2 P. 255. 
 
 C. P. 174. 
 
 (I) Scott v. Ebury, L. R. 2 C. B. 655. 
 
 (m) Schmaltz v. Avery, 16 Q.
 
 AGENT EXCEEDING AUTHORITY. 91 
 
 It was sought, in a recent case (»), to extend the principle of Di c k: Son v. 
 Collen v. Wright to support an action for damages caused by the Reuter's 
 negligence of the defendants, a telegram company, who delivered Telegraph 
 to the plaintiff a telegram ordering a large shipment of barley, ^ om l )an y- 
 no such message having been in fact sent to the plaintiff. It was 
 held that, inasmuch as the erroneous statement was not fraudu- 
 lent, and there was no duty owing by the defendants to the plain- 
 tiffs in the matter, no action would lie. 
 
 "The general rule of law," said Bramwell, L.J., " is clear, 
 that no action is maintainable for a mere statement, although un- 
 true, and although acted on to the damage of the person to whom 
 it is made unless that statement is false to the knowledge of the 
 person making it But then it is urged that the deci- 
 sion in Collen v. Wright has shown that there is an exception to 
 that general rule, and it is contended that this case comes within 
 the principle of that exception. I do not think that Collen v. 
 Wright, properly understood, shows that there is an exception to 
 that general rule. Collen v. Wright establishes a separate and 
 independent rule, which, without using language rigorously ac- 
 curate, may be thus stated; if a person requests and, by assert- 
 ing that he is clothed with the necessary authority, induces an- 
 other to enter into a negotiation with himself, and a transaction 
 with the person whose authority he represents that he has, in 
 that case there is a contract by him that he has the authority of 
 the person with whom he requests the other to enter into the 
 transaction. That seems to me to be the substance of the deci- 
 sion in Collen v. Wright. If so, it appears to me that it does not 
 apply to the facts before us, because, in the present case, I do not 
 find any request by the defendants to the plaintiffs to do any- 
 thing. The defendants are simply the deliverers of what they 
 say is a message from certain persons to the plaintiffs. No con- 
 tract exists : no promise is made by the defendants, nor does any 
 consideration move from the plaintiffs. It appears to me, therefore, 
 that there is a distinction between this case and Collen v. Wright, 
 and consequently we cannot have recourse to that case to take 
 this out of the general rule to which I have referred." 
 
 (n) Dickson v. Reuter's Telegraph Co., 3 C. P. D. 1.
 
 92 
 
 GOODS PRIVILEGED FROM DISTRESS. 
 
 Goods privileged from Distress. 
 
 [39.] SIMPSON v. HARTOPP. 
 
 [Willes, 512 (1744).] 
 
 John Armstrong was a stocking-weaver of Leicester, 
 and rented a small cottage of the defendant Hartopp. 
 Early in 1741 he hired a stocking- frame from the plain- 
 tiff Simpson at a few shilling a week for the purposes 
 of his trade. About the end of the year he got behind- 
 hand with his rent, and Hartopp distrained on him. 
 There was not much for the bailiffs when they came; 
 indeed, so little that there was not enough to satisfy 
 the rent in arrear without carrying off Simpson's stock- 
 ing-frame. This was done, although " the said John 
 Armstrong's apprentice was then weaving a stocking on 
 the said frame." 
 
 Simpson afterwards brought an action of trover for 
 the stocking- frame, and succeeded in getting it restored 
 to him; for a landlord has no business to distrain what 
 is actually in use. 
 
 Landlord a 
 
 favoured 
 creditor. 
 
 All goods 
 found may be 
 taken. 
 
 Two classes 
 of things 
 privileged. 
 
 (1.) Absolute 
 privilege. 
 
 Things in 
 actual use. 
 
 If a tenant does not pay his rent according to his contract, his 
 landlord has this advantage over other creditors, that, without 
 having to seek the assistance of a court of law, he may walk 
 straight down to the premises in the tenant's.occupation, and 
 carry away sufficient goods to satisfy the debt. This summary 
 and anomalous method of getting one's rights is called — not in- 
 appropriately, from the tenant's point of view — distress. 
 
 The general rule is that all personal chattels found on the de- 
 mised premises can be distrained for rent. Simpson v. Hartopp 
 introduces us to the exceptions to the rule. 
 
 The student should divide the exceptions into two classes: — 
 
 1. Things absolutely privileged. 
 
 2. Things conditionally privileged. 
 
 1. Some things are absolutely privileged from distress; under no 
 circumstances can they be taken. Such things are 
 
 (1.) Things in actual use. 
 
 The obvious reason why such things cannot be taken is that to 
 try and do so would probably lead to a breach of the peace. Bather
 
 GOODS PRIVILEGED FROM DISTRESS. 93 
 
 a nice point may some day arise as to whether clothes merely taken 
 off for natural repose are " in actual use " or not (o). 
 
 (2.) Fixtures 
 cannot he taken, hecause damage would be done to the freehold in Fixtures. 
 tearing them away. And mere temporary removal of fixtures, 
 however, for purposes of necessity will not destroy the privi- 
 lege (})). Nor can keys, charters, &c, he taken (q). 
 
 At common law, cocks and sheaves of corn and other farm pro- Corn and 
 duce, and growing crops could not he distained; but were ahso- growing 
 lutely privileged. By an Act of William and Mary (r), any per- ct0 ^ a - 
 son having rent in arrear and due upon any demise, lease, or 
 contract, may seize and secure any sheaves or cocks of corn, or 
 corn loose or in the straw, or hay lying or being in any barn or 
 granary, or upon any hovel, stack or rick, or otherwise upon any 
 part of the laud or ground charged with such rent, and lock up or 
 detain the same in the place where the same shall be found, for, 
 or in the nature of, a distress, until the same shall be replevied or 
 sold ; but the same must not be removed from such place to the 
 damage of the owner. This Act of William and Mary, however, 
 did not give the landlord a right to distrain growing corn or 
 crops, but an Act with that object was passed in George the 
 Second's reign. 11 Geo. II., c. 19, ss. 8 and 9, authorises him to 
 seize " all sorts of corn and grass, hops, roots, fruits, pulse, or other 
 products tvhatever, ichich sliall be growing' 1 '' on any part of the 
 estates demised or holden, "and the same to cut, gather, make, 
 cure, carry, and lay up, when ripe, in the barns, or other proper 
 place" — on the premises, if possible; if not, as near thereto as 
 practicable. It is to be observed that this statute of George the 
 Second extends only to crops which become "ripe," and which 
 when ripe are "laid up," and that they must not be taken before 
 they are ripe. In Clarke v. Gaskarth (.?), it was held that young 
 trees, shrubs, and plants growing in a nursery ground could not 
 be distrained as they were not ejusden generis with the "pro- 
 ducts" specified in the 8th section of the Statute of George. 
 Notice of the place where the distress is lodged is to be given to 
 the tenant within a week of the lodgment. 
 
 The grantee of a rent charge cannot take growing crops under 
 11 Geo. II., c. 19, but he can take hay or straw loose or in the 
 stack {t). 
 
 (3.) Goods delivered to a person in the way of his trade (tl). Trade. 
 
 (o) See Bissett v. Caldwell, 2 Q. B. 925; Miller v. Green, 2 
 
 Peake 50, and Bavnesr. Smith, Cr. & J. 143; and 4 Geo. II. c. 
 
 1 Esp. 206. 28, s. 5. 
 
 (p) Gorton v. Falkner, 4 T. (It) See the recent case of 
 
 R. 567. Clarke r. Mill wall Dock Com- 
 
 (q) Hellawell v. Eastwood, 6 pany, 53 L. T. 316, where a 
 
 Ex. 295. ship while building was held 
 
 (r) 2 W. &M. sess. 1, c. 5, s. 3. liable to be distrained by the 
 
 (s) 8 Taunt, 431. shipbuilder's landlord though 
 
 it) See Johnson v. Faulkner, belonging to a third person. 
 
 8 COMMON LAW.
 
 94 
 
 GOODS PRIVILEGED FROM DISTRESS. 
 
 Perishable 
 •roods. 
 
 Wild 
 animals. 
 
 Goods in 
 custody of 
 law. 
 
 The ground of this exemption is public policy, which requires 
 that no unnecessary impediments shall be thrown in the way of 
 trade and commerce. But the goods must be on the x>remises of 
 the person exercising the trade, or they will not be privileged («). 
 Thus, if you entrust a horse to an innkeeper, so long as it re- 
 mains on the inn premises, the innkeeper's landlord cannot touch 
 it; but if the innkeeper removes it to a friend's stable half a 
 mile off, it is not privileged as against that person's landlord (x). 
 
 The Agricultural Holdings Act, 1883, (y), on the holdings to 
 which that Act applies, gives absolute protection against distress 
 for rent to '•agricultural or other machinery which is the bond 
 fide property of a person other than the tenant, and is on the 
 premises of the tenant under a bond fide agreement with him for 
 the hire or use thereof in the conduct of his business, and live 
 stock of all kinds which is the bond fide property of a person 
 other than the tenant, and is on the premises of the tenant solely 
 for breeding purposes." 
 
 (4.) Perishable goods 
 cannot (unless by statute) be taken, because they cannot be re- 
 stored in the same plight, and at common law a distress is a 
 mere pledge. Thus the flesh of animals lately slaughtered can- 
 not be distrained (z). Nor can money, unless in a bag, so that 
 the same identical coins may be recovered (a). 
 
 (5) Animals ferse naturae; 
 because no one has any valuable property in them. But animals 
 ferse naturae in a state of confinement and civilization (e.g., dogs, 
 deer in a park, birds in cages, &c. ) are distrainable {b). 
 
 (6.) Goods in the custody of the law. 
 
 Thus, goods which have been distrained damage feasant, or 
 taken in execution, are not distrainable (c). But fraudulent and 
 irregular executions will not prevent a distress (rf), and it has 
 been held that the exemption does not extend to goods in the 
 custody of a messenger under a fiat in bankruptcy (e). More- 
 over, by 14 & 15 Vict. c. 25, s. 2 (which was passed in order to 
 reverse the law as laid down in Wharton v. Naylor) (/), grow- 
 ing crops seized and sold by the sheriff under an execution are 
 liable, so long as they remain on the land to be distraned for the 
 rent which becomes due after the seizure and sale, if there is no 
 other sufficient distress. See also 56 Geo. III., c. 50. 
 
 (tt) Lyons v. Elliott, 1 Q. B. 
 D. 210; and see Tapling v. Wes- 
 ton, 1 C. & E. 99. 
 
 (x) Crosier v. Tomkinson, 2 
 Ld. Ken. 439. 
 
 (y) 46 & 47 Vict. c. 61. 
 
 (z) Morley v. Pincombe, 2 
 Ex. 101. 
 
 (a) 1 Roll. Abr. 667; 2 Bac. 
 Abr. 109. 
 
 (b) Davies v. Powell, Willes, 
 48; and see Reg. v. Shickle, L. 
 R. 1 C. C. R. 158. 
 
 (c) Peacock v. Purvis, 2 Bro. 
 & B. 362. 
 
 (d) Blades v. Arundale, 1 M. 
 &S. 711. 
 
 (e) Briggs v. Sowry, 8 M. & 
 W. 729. 
 
 (/) 12 Q. B. 673.
 
 GOODS PRIVILEGED FROM DISTRESS. 95 
 
 (7.) The goods of an ambassador (g). Ambassa- 
 
 (8.) The goods of a lodger ; % dors. 
 
 by virtue of an Act (A) passed in 1871. The object of this Act Lodgers, 
 was to prevent poor persons from having their homes broken up, 
 and their goods and chattels carried off, because other people did 
 not pay what they owed. The Act doos not define a "lodger," 
 and the omission has led to a good deal of litigation (f) with which 
 it is not worth while to trouble the student. If the lodger's 
 things have been seized, he must write out a declaration and an 
 inventory, and serve the landlord with the document. If he does 
 that in the proper way, complying faithfully with the require- 
 ments of the Act, he will get his things back. See, however, 
 Thwaites v. Wilding (k) where Bowen, L.J., said "I think it is 
 clear that a lodger is relieved only when the terms of the Lodgers 
 Goods Protection Act have been rigidly complied with. A lodger 
 must make a fresh declaration each time that a distress is levied 
 on his goods. A declaration made at the time of levying one 
 distress will not protect him against a second and subsequent dis- 
 tress. The statute is not for the benefit of the lodger alone ; the 
 superior landlord is to enjoy a correlative benefit ; he is to receive 
 in part discharge of his claim payment of any rent which may be 
 due from the lodger to his immediate landlord. The declaration 
 required from the lodger must state that the goods seized are his, 
 and whether any and what rent is due from him. The property 
 in the goods seized may vary from time to time, and the state of 
 account between the lodger and his immediate landlord may vary 
 
 in like manner When a fresh distress is levied, it must 
 
 be met by a fresh declaration." 
 
 (9.) Frames, looms, &c, used in the icoollen, cotton or silk manu- Looms. 
 /natures (I). 
 
 (10.) Gas meters belonging to a gas company incorporated by Act Q as meters. 
 of Parliament (m). 
 
 (11.) Railway rolling stock in any tvorks not belonging to the ten- Railway 
 ant of the works (n). ' rolling stock. 
 
 2. Certain other things are privileged conditionally. They can (2.) Condi- 
 be taken, but only when there are not sufficient other goods on tional privi- 
 the premises to satisfy the landlord's claim. Such things are e ^ e ' 
 
 ( 1 . ) Tools of trade ; Tools. 
 
 e.g., a navvy's pickaxe, a doctor's stethoscope, a stocking weaver's 
 
 (g) 7 Ann. c. 12, s. 3. where it was held that, if no 
 
 (A) 34 & 35 Vict. c. 79. rent was due from a lodger, 
 
 (/') See Morton v. Palmer, 51 the declaration need not state 
 
 L. J. Q. B. D. 7 ; Ness v. Steph- the fact, nor need it state that 
 
 enson, L. R. 9 Q. B. 245 ; Hea- the declarant was a lodger. 
 
 wood v. Bone, 13 Q. B. D. 179; (/) 6 & 7 Vict. c. 40, ss. 18 
 
 and Phillips v. Henson, 3 C. P. and 91. 
 
 D. 26. (m) Gasworks Clauses Act. 
 
 (k) 12 Q. B. D. 7 ; but see ex 1847 (10 Vict. c. 15), s. 14. 
 
 parte Harris, 16 Q. B. D. 130, (») 35 & 36 Vict. c. 50, s. 3.
 
 90 
 
 (JOODS PRIVILEGED FROM DISTRESS. 
 
 Beasts. 
 
 Agricultural 
 Holdings 
 Act, 1883. 
 
 "Milk for 
 meat." 
 
 Trespass 
 ab initio. 
 
 frame, or a lawyer's " Leading Cases." It would be contrary to 
 public policy to take the means whereby a man lives (o). (Of 
 course, if the lawyer were actually leading his law-book, or the 
 doctor using his surgical instrument, such things would be abso- 
 lutely privileged as being in actual use.) 
 
 Ledgers, day-books, vouchers, and other business papers are 
 not distrainable (p). 
 
 (2.) Beasts of the plough and sheep (q). 
 
 But colts, steers, and heifers are not priviledged (r) ; and beasts 
 of the plough may be distrained if the only other subject of dis- 
 tress is growing crops (s). Moreover, beasts of the plough can be 
 distrained for poor-rates, whether there are other things on the 
 premises or not (t). 
 
 The 45th Section of the Agricultural Holdings Act, 1883 (w), 
 protects the live stock of a third person brought on to a holding 
 to which the Act applies to be fed at a fair price, provided that there 
 is other sufficient distress which can be taken. The "fair price" 
 need not be in money. In the London and Yorkshire Bank ik 
 Belton (x) cows were agisted on the terms "milk for meat." — 
 i.e., that the agister should take their milk in exchange for their 
 pasturage — and it was held that the agistment was within the 
 Act. "The question is," said Lord Coleridge, C.J.. "what is 
 the meaning of the words 'fair price.' Putting aside pedantic 
 and scholastic refinements and derivations, ' price ' in ordinary 
 colloquial language does not always mean money, and ' fair price' 
 does not always mean 'coin of the realm.' We say that a man 
 got something and paid a fair price for it without meaning that 
 he paid as many pounds, shillings and pence, but meaning only 
 that he paid a fair equivalent, for what he got." " I cannot gather 
 from the section," said Mathew, J., "the slightest hint of an in- 
 tention in the legislature to confine the provision to cases where 
 contracts of agistment shall be for money and money only." 
 
 The effect of taking privileged goods is to make the distrain- 
 ing landlord a trespasser ab initio. But where part only of the 
 goods distrained are privileged, he is a trespasser ab initio in re- 
 spect of that part only (y). 
 
 Generally, a distress cannot be levied elsewhere than on the ten- 
 ant's premises (z). But if, while his rent is in arrear. he "fraudu- 
 
 (o) Gorton v. Falkner, 4 T. 
 R. 555. 
 
 (p) Woodf. Landl. & Ten., 
 12th ed., p. 419. 
 
 (q) See 51 Hen. III. stat. 4. 
 
 (r) Keen v. Priest, 4 H. & X. 
 236. 
 
 (s) Piggott v. Birtles, 1 M. & 
 W. 441. 
 
 {{} Hutchins v. Chambers, 1 
 Burr. 579. 
 
 (m) 46 & 47 Vict. c. 61. 
 
 (x) 15 Q. B. D. 457. 
 
 (y) Harvev v. Pocock, 11 M. 
 & W. 740. 
 
 (z) Capel v. Buzzard, 8 B. & 
 C. 141 ; but see Gillingham v. 
 Gwyes, 16 L. T. 640.
 
 GOODS PRIVILEGED FROM DISTRESS. 9? 
 
 lently or clandestinely" (a) removes his goods, to prevent a dis- Fraudulent 
 tress, his landlord may within 30 days after such removal follow removal of 
 and take them from the place to which they have been removed (b). goods. 
 If, however, before getting at them, the goods have been sold to 
 a bond fide purchaser for valuable consideration, he will be too 
 late (c). In Gray v. Stait (d) it was held that a landlord could 
 not follow and distrain his tenant's goods which had been fraud- 
 ulently removed to prevent a distress for rent due, if at the time 
 of the distress the tenant's interest in the demised premises had 
 come to an end and he was no longer in possession. ' 'The stat- 
 ute 11 Geo. 2, c. 19, s. 1," said Bowen, L.J., "allows a distress 
 upon goods fraudulently removed, only where a distress could 
 have been lawfully made if they had remained upon the demised 
 premises. The argument for the defendants is not assisted by 
 the provisions of 8 Anne, c. 14, ss. 6, 7; these enactments merely 
 provide that the goods of the tenant may be distrained after the 
 expiration of the tenancy whilst he remains in possession. ' ' 
 
 Agricultural Fixtures, &c. 
 
 ELWES v. MAW. [40.3 
 
 [3 East, 38 (1802).] 
 
 The question in this ease was whether the tenant of 
 a farm in Lincolnshire was entitled, at the expiration 
 of his lease, to demolish and cart away a beast house, 
 a carpenter' s-house, a pigeon house and other fixtures 
 he had put up. It was held that he could not do this, 
 and that they became the landlord's. 
 
 The Agricultural Holdings Act of 1883 (d) has considerably 
 extended the rights of agricultural tenants to remove fixtures. 
 The 34th section of that Act is as follows : — 
 
 "Where after the commencement of this Act a tenant affixes to 
 
 (o) The word connecting these cealment, Opperman r. Smith, 
 
 adverbs being "or," not "and," 4 Dowl. & R. 33. 
 it has been held that a landlord (b) 11 Geo. 2, c. 19. 
 is justified under the statute in (c) Sec. 2. 
 following goods removed with- (d) 11 Q. B. D. 668. 
 out the slightest attempt at con- (c) 46 & 47 Vict. c. 61.
 
 98 AGRICULTURAL FIXTURES, ETC. 
 
 his holding any engine, machinery, fencing, or other fixture, or 
 erects any building for which he is not under this Act or other- 
 wise entitled to compensation, and which is not so affixed or 
 erected in pursuance of some obligation in that behalf or instead 
 of some fixture or building belonging to the landlord, then such 
 fixture or building shall be the property of and be removable 
 by the tenant before or within a reasonable time after the termi- 
 nation of the tenancy. 
 "Provided as follows: — 
 
 "(1.) Before the removal of any fixture or building the tenant 
 shall pay all rent owing by him, and shall perform or satisfy all 
 other his obligations to the landlord in respect to the holding. 
 
 "(2.) In the removal of any fixture or building the tenant shall 
 not do any avoidable damage to any other building or other part 
 of the holding. 
 
 "(3.) Immediately after the removal of any fixture or building 
 the tenant shall make good all damage occasioned to any other 
 building or other part of the holding by the removal. 
 
 "(4. ) The tenant shall not remove any fixture or building with- 
 out giving one month's previous notice in writing to the land- 
 lord of the intention of the tenant to remove it. 
 
 "(5.) At any time before the expiration of the notice of re- 
 moval the landlord, by notice in writing given by him to the 
 tenant, may elect to purchase any fixture or building comprised 
 in the notice of removal, and any fixture or building thus elected 
 to be purchased shall be left by the tenant, and shall become the 
 property of the landlord, who shall pay the tenant the fair value 
 thereof to an incoming tenant of the holding; and any difference 
 as to the value shall be settled by a reference under this Act, as 
 in case of compensation (but without appeal)." 
 Non-agricu- Fixtures erected for purposes of Irade, ornament, or domestic use 
 tural fixtures may, as a rule, be freely removed by the tenant. But in Buck- 
 may gener- j am j v Butterfield (e) (which may be considered the leading case 
 moved on ornamental and domestic fixtures) it was held that a tenant 
 
 Buckland v was not ' entitled to remove a conservatory. As Dallas, C.J., Said 
 Butterfield in that case, the right of the tenant to remove an ornamental fix- 
 ture "must depend on the particular case." As to shrubs, box 
 borders, &c, an ordinary tenant cannot remove such things, but 
 a nurseryman may (/). 
 Fixtures On the whole, then, as between landlord and tenant, the 
 
 must be re- maxim li quicquid plantatur solo, solo cedil " has lost much of its 
 moved dur- pristine force and application. But the tenant must take care to 
 ° ' - remove his fixtures during the tenancy (</), even though the lease 
 
 (e) 2 Bro. & Bing. 54. 2 East 88. 
 
 (/) Empson v. Soden, 4 B. & (g) Lyde v. Russell, 1 B. & 
 Ad. 655, and Pentou v. Kobart, Ad. 394.
 
 AGRICULTURAL FIXTURES, ETC. 90 
 
 determines by forfeiture and not by effluxion of time (It); other- 
 wise, the law will presume that he intended to make a present 
 of them to his landlord. 
 
 As between heir and executor, however, the law is more as it Ifeir and 
 used to be; for the house or land cannot be ruthlessly stripped of executor. 
 fixtures which add materially to its enjoyment. But exceptions 
 to the rule are said to exist in the case of trade fixtures (t), and 
 generally of those fixtures put up for ornament or convenience 
 which can be removed without disfiguring the house (k). 
 
 As between vendor and vendee, a sale of the freehold carries Vendor and 
 with it the fixtures, unless there is an express provision to the vendee, 
 contrary (/). 
 
 As between outgoing and incoming tenant, there is generally Outgoing and 
 an agreement by the latter (which need not be in writing) (in) to incoming 
 take the fixtures at a valuation. To this agreement it is desira- enan ■ 
 ble that the landlord should be a party; otherwise he might say 
 that the outgoing tenant had forfeited them to him by not re- 
 moving them, and so the incoming tenant would not be able to 
 remove them at the end of his term. 
 
 The folloAving definition of a fixture has the approval of the "What is a 
 Queen's Bench in a case (n) where the question was whether cer- fixture, 
 tain colliery railways were exempt from distress as beingfixtures: — 
 
 "It is necessary, in order to constitute a fixture, that the arti- 
 cle in question should be let into or united to the land, or to some 
 substance previously connected with the land. It is not enough 
 that it has been laid upon the land and brought into contact with 
 it; the definition requires something more than mere juxtaposition, 
 as that the soil shall have been displaced for the purpose of re- 
 ceiving the article, or that the chattel should be cemented or oth- 
 erwise fastened to some fabric previously attached to the ground." 
 
 It may be remarked, however, that there can be a "construe- Constructive 
 tive annexation." Keys, heirlooms, charters, deeds, fish, &c, annexation, 
 are considered for most purposes to be annexed to the freehold. 
 
 By way of further illustration of this subject, the student might 
 refer to the recent case of Wake v. Hall (o) where the right of a 
 miner under the High Peak Mining Customs and Mineral Courts 
 Act, 1851 (14 & 15 Vict, c: 94), as against the surface owner, to 
 remove buildings erected for mining purposes, was discussed, and 
 the maxim " quicquid plantatur, etc.," was held inapplicable . 
 
 (h) Pugh v. Arton, L. R. 8Eq. (/) Colegrave v. Dios Santos, 2 
 
 626. B & C. 76. 
 
 (?) See Lawton v. Lawton, 3 (m) Hallen r. Runder, 1 C. M. 
 
 Atk. 14, and Trappesi*. Harter, & R. 266; and Lee v. Gaskell, 1 
 
 2 C. & M. 153. Q. B. D 700. 
 
 (k) Beck v Rebow, 1 P. Wins. (n) Turner v. Cameron, L. R. 
 
 94 ; but see Cave v. Cave, 2 Vern. 5 Q. B. 306. 
 
 508. (o) 8 App. Ca. 195.
 
 100 LEASEE NOT IN WRITING. 
 
 Leases for more than Three Years not in 
 Writing. 
 
 [41.] RIGGE v. BELL. 
 
 [5T. R. 441 (1793).] 
 
 By parol merely, Rigge let Hague's Farm in York- 
 shire to Bell for seven years, and Bell entered and paid 
 rent. But the tenant did not give satisfaction, and 
 Rigge determined to get rid of him. By the terms of 
 the agreement Bell was to go out at Candlemas; but 
 Rigge's view was, as the lease, being for more than three 
 years, and yet not in writing, as the Statute of Frauds 
 required, operated merely as a tenancy at will, he could 
 make the man quit when he pleased, and was not bound 
 by the terms they had agreed on. In this view he found 
 himself mistaken, for it was held that, "though the 
 agreement be void by the Statue of Frauds as to the 
 duration of the lease, it must regulate the terms on which 
 the tenancy subsists in other respects, as to the rent, the 
 time of the year when the tenant is to quit, &c. 
 
 [42.] CLAYTON v. BLAKEY. 
 
 [8 T. R. 3 (1799).] 
 
 Ey parol merely, Mr. Clayton let Blakey some land 
 for twenty-one years, and Blakey entered and paid rent. 
 Two or three years afterwards his landlord gave him no- 
 tice to quit, and, as he treated such notice with supreme 
 contempt, sued him for double rent for holding over. 
 To this claim Blakey raised the somewhat cool defence 
 that (by virtue of section 1 of the Statute of Frauds, 
 which directs that any lease for more than three years 
 not reduced into writing shall operate only as a tenancy. 
 at will) he was only a tenant at will, and ought to have
 
 LEASES NOT IN WRITING. 101 
 
 been so described in the plaintiff's declaration. It was 
 held, however, that Blakey was not a tenant at will, but 
 a yearly tenant, and therefore the plaintiff's pleading 
 was good enough to hit him. 
 
 The decision in Clayton v. Blakey seems at first sight rather ex- 
 traordinary. The Statute of Frauds (sees. 1 and 2) distinctly 
 says that all leases by parol for more than three years shall be 
 tenancies at will only. The decision intervenes and says, "No, 
 they shall be yearly tenancies," thus putting the tenant in abetter 
 position than the statute left him in. The accepted explanation 
 is that the statute's intention merely was that the estate should Explanation 
 be an estate at will to begin with, but that, when once created, it of Clayton r. 
 should be liable, like any other estate at will, to be changed into Blakey. 
 a tenancy from year to year by payment of rent or anythingshow- 
 ing an intention to create a yearly tenantcy; if, however, there 
 were no circumstances showing such an intention, the estate 
 would remain an estate at will. 
 
 These decisions are not affected by 8 & 9 Vict. c. 106, s. 3; and 
 as to the position of a tenant holding under an agreement for a 
 lease but before the execution of the lease, see Walsh v. Lonsdale, 
 L. R. Ch. D. 9. 
 
 A tenancy at will is an estate in land determinable at the wil 1 Tenancy at 
 either of landlord or tenant. It may arise either by implication will, how 
 or by express words. In Eichardson v. Langridge ( p) it was held created, 
 that if an agreement be made to let premises so long as both par- 
 tics like, and reserving a compensation accruing de die in diem, and 
 not referable to a year or any aliquot part of a year, a tenancy at will 
 is thereby created. Tenancy at will must be carefully distin- Tenancy by 
 guished from tenancy by sufferance, which is when a person, who sufferance, 
 has originally come into possession by a lawful title, holds pos- 
 session after his title has determined. 
 
 A few words may be said as to the notice, to quit necessary in Notice to 
 
 the case of yearly tenants. Such a tenancy may at common law quit. 
 
 be determined by half a year's notice expiring at that period of jjalf year's 
 
 the year at which the tenancy commenced. Where, however, the notice neces- 
 
 tenancy is within the Agricultural Holdings Act, 1883 (</), a year's S;U T- 
 
 notice is generally necessary. The 33rd section of that Act pro- J 1 . • v,:u s 
 .,.,?■ notice neces- 
 
 Yides that:- sarv un(1( . r 
 
 "Where a half-year's notice, expiring with a year of tenancy Agricultural 
 
 is by law necessary and sufficient for determination of a tenancy Holdings 
 
 from year to year, in the ease of any such tenancy under a con- 1 C ' 
 
 tract of tenancy made either before or after the commencement 
 
 of this Act, a year's notice so expiring shall by virtue of this Act 
 
 be necessary and sufficient for the same, unless the landlord and 
 
 tenant of the holding, by writing under their hands, agree that 
 
 (p) 4 Taunt. 128. (q) 46 & 47 Vict. c. 61.
 
 182 
 
 LEASES NOT IN "WRITING. 
 
 Joint ten- 
 ants. 
 
 Executors. 
 
 Verbal no- 
 tice good. 
 Construction 
 of notices. 
 
 Alternative 
 notice. 
 
 Service of 
 notice. 
 
 Monthly and 
 weekly ten- 
 ancies. 
 
 this section shall not apply, in which case a half year's notice 
 shall continue to be sufficient; but nothing in this section shall 
 extend to a case where the tenant is adjudged bankrupt, or has 
 filed a petition for a composition or arrangement with his cred- 
 itors. ' ' 
 
 The construction placed upon this section is that it is limited 
 to cases where a half-year's notice is by law necessary to determine 
 the tenancy, and has no application to cases of agreement (r). A 
 notice to quit given by one of several joint tenants on behalf of 
 all, whether with the authority of the others or not, will put an 
 end to the tenancy (s). So will notice by one of several execu- 
 tors or administrators on behalf of all, unless a joint notice is 
 required in the lease (t). But notice by a mere receiver of 
 rents is bad (u). 
 
 The notice may be a verbal one, though it had much better be 
 in writing. The courts are inclined to construe notices to quit 
 liberally, so that trifling inaccurracies will be overlooked (x). 
 The great point is that the tenant should not be able to mistake the 
 object of the notice. But a notice in the alternative, e.g., requir- 
 ing the tenant cither to quit or to pay an increased rent, will not 
 do. If, however, after telling him to quit, the landlord adds 
 "or I shall insist on double rent" the notice is good (y). One must 
 be a lawyer, perhaps, to appreciate this distinction. 
 
 The notice need not be served personally. It may be left with 
 and explained to a servant at the tenant's residence (2). It may 
 be put under a door (if it comes into the tenant's hands within 
 the proper time) (a), or sent through the post (b). Service on 
 one joint tenant furnishes presumptive evidence that the notice 
 reached the other (c). Where the premises have been underlet, 
 the notice must be given to the lessee, not to the sub-lessee (d). 
 
 In the case of tenancies for less than a year, the length of the 
 notice depends on the letting. A month's notice is necessary to 
 determine a monthly tenancy, and so on (c). It is doubtful, 
 however, whether any notice at all is requisite in the case of a 
 weekly tenancy; certainly not more than a week's notice (/). 
 
 (r) Barlow v. Teal, 15 Q. B.D. 
 501, and see Wilkinson v. Cal- 
 vert, 3 C. P. D. 360. 
 
 (s) Doe d. Aslin v. Summer- 
 sett. 1 B. & Ad. 135. 
 
 (0 Right d. Fisher v. Cuthell, 
 5 East, 491. 
 
 (u) Doe d. Mann r. Walters, 
 10 B. & C. 626. . 
 
 (a - ) Doe d. Armstrong v. Wil- 
 kinson, 12 Ad. & E. 743. and 
 Doe v. Kightley, 7 T. R. 63. 
 
 (y) Doe d. Matthews v. Jack- 
 son, 1 Dougl. 175, and Doe d. 
 Lyster v. Goldwin, 2 Q. B. 143. 
 
 (z) Jones v. Marsh, 4 T. R. 
 464; and see Tanham v. Nich- 
 olson, L. R. 5 H. L. 561. 
 
 (a) Alford v. Vickery, Car. & 
 Marsh. 2S0. 
 
 (6) Papillon v. Brunton, 5 H. 
 & N. 518. 
 
 (c) Doe r. Watkins.7 East, 55? . 
 
 (d) Pleasant d. Hayton v. 
 Benson, 14 East, 234. 
 
 (e) Doe d. Parry v. Hazell, 1 
 Esp. 94. 
 
 ( f) See Jones v. Mills. 10 C. 
 P.. N. S. 788, and Huffell v. 
 Armitstead, 7 C. & P. 57.
 
 WAIVER OF FORFEITURES, ET0. 1Q3 
 
 By 4 Geo. 2, c. 28, s. 1, if a tenant for life or years contuma- Holding over 
 
 ciously disregards his landlord's written requirement to give up by tenant 
 the premises and wrongfully holds over, he will be liable to pay t-°ld to go. 
 compensation at the rate of double the yearly value. The statute, 
 however, does not apply to weekly tenancies (g), nor (probably) 
 to a tenancy from quarter to quarter (A). In the calculation of 
 the double value, only the land and its appurtenances can be in- 
 cluded; therefore not the value of the power of an engine let 
 with a mill (i). 
 
 By 11 Geo. 2, c. 19, s. 18, if a tenant who has given notice him- Holding over 
 self holds over he will become liable to pay double the yearly rent, by tenant 
 
 This statute applies only to those cases where the tenant has the W 7° . nnu ~ 
 „ , . . . , . , , ,. , , sell given no- 
 
 power of determining his tenancy by a notice, and where he has ^j ce f eo i nt r 
 
 actually given such a notice (k). But it applies to all kinds of 
 
 tenancies (/). 
 
 Waiver of Forfeiture, &c. 
 
 DTJMPOR v. SYMMS. [43.] 
 
 (Sometimes called Dumpor's Case.) 
 [4 Coke, 119 (1603).] 
 
 In the tenth year of Elizabeth's reign the College of 
 Corpus, Oxford, made a lease for years of certain land 
 to a Mr. Bolde, exacting from him a covenant that he 
 would not alien the property to anybody else without 
 the College's consent. Three years afterwards the Col- 
 lege by deed gave him permission to alien to anybody 
 he pleased, and soon afterwards Bolde availed himself 
 of this permission and assigned the term to one Tubb. 
 Tubb, after a brief enjoyment of this world's goods, 
 made his will, devising the lands to his son, and went 
 over to the majority. The son entered, and also died, 
 
 (g) Lloyd v. Rosbee, 2 Camp. & W. 48. 
 
 453. (A:) Johnstone v. Hudleston, 
 
 (h) Sullivan v. Bishop, 2 C. 4 B. & C. 922. 
 
 & P. 359. (I) Timmins v. Rowlinson, 3 
 
 (£) Robinson v. Learoyd, 7M. Burr. 1607.
 
 104 
 
 WAIVER OF FORFEITURES, ETC. 
 
 but intestate, and the ordinary granted administration 
 to a person who assigned the term to the defendant 
 Symms. Thereupon the wrath of the College of Cor- 
 pus Christi was kindled. Bolde had covenanted with 
 them not to assign without leave, and such a covenant, 
 they said, should have been observed by whoever held 
 the lands. Therefore they entered for the broken con- 
 dition, and leased to Dumpor for twenty -one years. 
 Dumpor entered, but Symms re-entered, and for doing 
 so Dumpor now brought this action of trespass against 
 him. 
 
 Dumpor did not succeed: the case was decided against 
 him on the ground that " if the lessors dispense with 
 one alienation, they thereby dispense with all aliena- 
 tions after.'''' . 
 
 Uselessness 
 of Durnpor's 
 case. 
 
 Waiver ot 
 forfeiture. 
 
 Leaning of 
 courts 
 against 
 forfeitures. 
 
 Acceptance 
 of rent. 
 
 u Dumpor' s case always struck me as extraordinary," said a 
 judge in 1807 (»i). "The profession have always wondered at 
 Dumpor's case," said another in 1812 (»). Yet such is the vitality 
 of error that Dumpor's case remained the law of the land till 1860, 
 when the Legislature enacted that "every such licence should, 
 unless otherwise expressed, extend only to the permission actually 
 given" (o); and the next year another Act was passed prohibit- 
 ing waivers in particular instances from being interpreted to mean 
 general waivers (p). 
 
 But though, therefore, Dumpor's case is now of merely anti- 
 quarian interest, it is supposed to " lead " to the rather import- 
 ant subject of waiver of forfeiture. 
 
 The courts lean against forfeiture ; and therefore any positive 
 act of the landlord's, from which it may be inferred that he 
 elected to overlook the breach of covenant, and to continue the 
 tenancy, will be greedily snatched at (q). The most satisfactory 
 of the acts which operate as a waiver of forfeiture is acceptance of 
 rent which has become clue since the forfeiture; and if such rent is 
 accepted, it is of no consequence that the landlord took it under 
 protest and declaring that he did not intend to waive the forfeit- 
 ure (r). But the landlord would not fix himself up by taking 
 rent due before the forfeiture (s). When the landlord has once 
 
 (m) Brummell v. Macpherson, 
 14 Ves. 175. 
 
 (n) Doet\ Bliss, 4 Taunt. 736. 
 
 (o) 22 & 23 Vict. c. 35, s. 1. 
 
 (p) 23&24 Vict. c. 38 s. 6. 
 
 (q) Ward v. Day, 4 B. & S. 
 337. 
 
 (V) Davenport v. the Queen, 
 
 3 App. Ca. 115, and see Croft v. 
 Lumley, 5 E. & B. 648. 
 
 (s) Marsh v. Curteys, Cro. 
 Eliz. 528, and Price v. Worwood, 
 
 4 H. & N. 512.
 
 WAIVER OF FORFEITURES, ETC. ID."* 
 
 definitely made his election either way, he cannot go hack from 
 it; and so his receipt of rent after he has brought ejectmenl for 
 a forfeiture comes too late to he a waiver (t), though there may 
 be evidence of a new tenancy from year to year on the terms of 
 the old lease (m). Moreover, the receipt of rent is no waiver of 
 a continuing breach, e.g., where the covenant is to keep the de- 
 mised premises in repair during the term (x), or not to use cer- 
 tain rooms in a particular manner (y). There cannot be a waiver 
 without knowledge of the forfeiture; and so a son who collected 
 his father's rents was held not to have authority to waive a for- 
 feiture which the old man did not know had occured (z). 
 
 It is a very common condition in a lease that the tenant shall Covenant by 
 not assign without his landlord's consent. It has been held that tenant not. to 
 
 this condition is not broken by a compulsory assignment bylaw; as ^S n wl 
 
 , * out consent, 
 
 under the Bankruptcy laws, for instance, or under a railway 
 
 company's Act (a). But by inserting express words to that ef- 
 fect in the lease the lessor may make a compulsory assignment 
 a ground of forfeiture; and a deed of assignment in trust for 
 creditors registered under the Bankruptcy Act, 1861, s. 194, was 
 held to work a forfeiture (6). Marriage has been held not to be 
 a breach of the condition against alienation (c); nor (probably) 
 is a bequest of the term ((J). Letting lodgings has been held not to 
 be a breach of a covenant not to underlet (c). 
 
 Sometimes the covenant a tenant enters into is that he will not Consent "not 
 assign without his landlord's consent, "such consent not being *° De arbitra- 
 arbitrarily withheld." These words, it has been held, do not , ; y , ,, 
 amount to a covenant by the lessor that he will not refuse arbi- 
 trarily, but simply enable the lessee, if the lessor refuses his 
 consent arbitrarily, to assign without any breach of covenant (/). 
 
 Forfeiture for wrongful assignment cannot be relieved against Reliefagain.st 
 under 44 & 45 Vict. c. 41, s. 14. That section, however, consid- forfeitures, 
 erably extends the power of the court to relieve against for- 
 feitures (g). 
 
 (t) Doe d. Moorecraft v. Tottenham Ry. Co., L. R. 4 Eq. 
 
 Meux, 4 B. & C. 606: Jones v. 112. 
 
 Carter, 15 M. & W. 718; and (6) Holland v. Cole, 1 H. & 
 
 Grim wood v. Moss, L. R. 7 C. C. 67. 
 
 P. 360. (c) Anon., Moor, 21. 
 
 («) Evans v. Wyatt, 43 L. T., (d) Foxr. Swann, Style, 483, 
 
 N. S. 176. and Doe v. Bevan, 3 M. & S. 
 
 (a?) Doe d. Baker v. Jones, 5 353. 
 
 Ex. 498. (e) Doe d. Pitt v. Laming, 4 
 
 (?/) Doe d. Ambler v. Wood- Camp. 77. 
 
 bridge, 9 B. & C. 376. (/) Treloar v. Bigge, L. R. 9 
 
 (z) Doe d. Nash v. Birch, 1 Ex. 151, and Sear v. House 
 
 M. &W. 402. Property Co., 43 L. T., N. S. 
 
 (a) Doe d. Mitchinson v. Car- 531. 
 
 ter, 8 T. R. 57, and Slipper v. (g) See Quilter v. Mapleson, 
 
 9 Q. B. D. 672.
 
 106 mortgagor's tenants. 
 
 Mortgagor's Tenant. 
 
 [44.] KEECH r. HALL. 
 
 [1 Doug. 21 (1778).] 
 
 The owner of warehouse in the city mortgaged it to 
 Mr. Keech, but remained in possession. Soon after- 
 wards, without saying a word to Keech on the subject, 
 he leased it for seven years to Hall. Keech was very 
 indignant at this. He said the mortgagor had ex- 
 ceeded his rights, having no business to do such a 
 thing without consulting him, and that Hall was no 
 better than a trespasser, and could be ejected without 
 notice. And the judges coincided with his view of the 
 matter. 
 
 [45.] MOSS v. GALLIMORE. 
 
 [Dougi.. 279 (1780).] 
 
 Mr. Harrison began the year 1772 by letting a house 
 to Moss for twenty years at the rent of £40 a year. 
 Times were bad with Mr. Harrison, and in May of the 
 same year he mortgaged the property to a Mrs. Galli- 
 more. Moss was not in the least affected by this 
 mortgage of the reversion. He went on quietly living 
 in the house, and paid Harrison his rent pretty regu- 
 larly up to November, 1778, when he was £28 behind- 
 hand. At that time Harrison, having sunk deeper and 
 deeper into the mire, became bankrupt, being at the 
 time indebted to Mrs. Gallimore for interest on the 
 mortgage in a sum greater than £28. Mrs. Gallimore 
 gave Moss notice of her being the mortgagee, and told 
 him to pay to her the £28 which he unquestionably owed 
 to somebody. Moss showed no disposition to yield to 
 this demand, and finally the old lady made a raid upon
 
 mortgagor's tenants. J 07 
 
 his chairs and tables. This distraint Moss considered 
 a trespass, and brought an action accordingly. It was 
 held, however, that Mrs. Gallimore was quite justified 
 in distraining, for a mortgagee after giving notice of 
 the mortgage to a tenant in possession under a lease 
 prior to mortgage is entitled to the rent in arrears at 
 the time of the notice as well as to what accrues after- 
 wards, and he may distrain for it after such notice. 
 
 The student will be able to distinguish these two cases by re- Difference 
 collecting that the former has to do with leases made by the mort- I"' 1 Wl ' ( ' n ' w " 
 gagor after the mortgage, the latter with leases made by the a in 8 case- 
 mortgagor before the mortgage. 
 
 There is, no doubt, considerable misapprehension among lay- What is true 
 men as to the true position of a mortgagor in respect of his power position of 
 of dealing with the mortgaged premises, especially in regard to mortgagor? 
 the granting of leases and the creation of tenancies. His position, 
 of course, varies according to the particular circumstances. In the 
 case of a simple mortgage without any further agreement or con 
 dition, the mortgagor becomes a tenant at sufferance of the mort- 
 gagee (h) immediately upon the execution of the deed ; but should 
 he remain in possession of the premises, with the consent of the 
 mortgagee, he is then held to be in the position of a tenant at 
 will. Though such consent need not be express, it may, how- 
 ever, be taken that it cannot be implied from the mere fact that 
 the mortgagee did not oust the mortgagor from the premises di- 
 rectly the mortgage deed was executed. So long as the mortga- 
 gor, remains no more than a tenant at sufferance he is, of course, 
 not entitled to any notice to quit. 
 
 It very frequently happens that the mortgage deed contains an Express 
 express covenant that the mortgagor shall remain in possession covenant in 
 until default in payment of the mortgage money at a time certain, mor |g a S e 
 and, therefore, this covenant operating as a re-demise, until that 
 time arrives the possession of his estate is secured to him ; he be- 
 comes, in fact, a termor (t). But, if he fail to redeem his pledge 
 by the appointed day, he then becomes a tenant at sufferance to 
 the mortgagee "The situation of a lessee on the expiration of 
 a term, and a mortgagor who has covenanted that the mortgagee 
 may enter on acertain day, is precisely the same " (k). It must, 
 however, be carefully noted that (in spite of a somewhat conflict- 
 ing decision (?) of doubtful authority), except where there is an 
 
 (h) Thunder d. Weaver v. (k) Per Best, C. J., 5 Bing. p. 
 
 Belcher, 3 East, 450. 427. 
 
 (?) Wilkinsons. Hall, 3 Bing. (I) Doe d. Lyster v. Goldwin, 
 
 S. C. 508. 2 Q. B. 143.
 
 108 mortgagor's tenants. 
 
 express and positive covenant that the mortgagor shall hold for a 
 determinate period, there isnore-deniise, and the mortgagor is but 
 a tenant at sufferance from the time of the execution of the mort- 
 gage. Thus, where it was provided that, if the mortgagor should 
 pay the principal and interest on the 25th March then next, the 
 mortgagee should re-convey, and there was also a covenant that 
 after default the mortgagee might enter, it was held that the es- 
 tate was in the mortgagee from the time of the execution of the 
 mortgage (m). 
 
 There are, moreover, other special forms of agreement (n) giv- 
 ing rise to the existence of various relations between the parties, 
 and which cannot now be discussed ; but, whenever the mort- 
 gagor occupies the premises as tenant at sufferance or tenant at 
 will to the mortgagee, it is clear that he can have no power of 
 letting in sub-tenants, and, if any such are so let in by him, they 
 may undoubtedly be treated by the mortgagee as tort feasors. 
 But this remaik must be taken as subject to the provisions of the 
 Conveyancing Act, 1881, to which allusion will presently be made. 
 And it was recently held that, where a mortgagor remaining 
 in possession let the premises to a tenant who brought in trade 
 fixtures, the tenant was entitled to remove the fixtures as against 
 the mortgagee as well as against the mortgagor. See Sanders v. 
 Davis, L. J. 54 Q. B. 576. 
 Recognition Supposing, however, the mortgagee in any way recognizes their 
 of tenancy by tenancy (o), they become his tenants at the rent they agreed with 
 mortgagee. t j ie mortgagor to pay ; and whether such recognition has indeed 
 taken place is a question of fact for the consideration of a jury, 
 but it would seem to be the better opinion that they would not 
 be warranted in inferring it from the mere circumstance of the 
 mortgagee's knowingly permitting the mortgagor to continue the 
 apparent owner of the premises as before the mortgage (p). 
 Notice by It was once thought that a mortgagee had only to give him 
 
 mortgagee notice to make one of these persons his own tenant. But it is 
 not enough. now c ] ear that there must be some evidence of the man's consent; 
 and that the tenancy, which from the time of that consent be- 
 gins, is a new tenancy and not merely a continuation of the old 
 one between himself and the mortgagor (q). 
 
 As to the tenant of a mortgagor under a lease made before the 
 mortgage, it may be remarked that, on the execution of the mort- 
 gage, he becomes tenant of the mortgagee, to whom the estate 
 has been conveyed ; and, therefore, the mortgagor could not main- 
 
 (m) Doe d. Roylance i;. Light- & Ad. 478; Evans v. Elliot, 9 
 
 foot, 8 M. & W. 553. A. & E. 342. 
 
 (n) Jolly v. Arbuthnot, 4 De (7) Brown v. Storey, 1 Scott, 
 
 G. & J. 224. N. C. 91 : Waddilove v. Barnett, 
 
 (o) Doe 0. Hales, 7 Bing. 322. 2 Bing. N. C. 538 ; Corbett v. 
 
 (p) Doe v. Cadwallader, 2 B. Plowden, L. J. 54 Ch. 109.
 
 mortgagor's tenants. 109 
 
 tain ejectment for a forfeiture. For. although it is a rule oflaw 
 that a tenant cannot dispute the title of his landlord, yet he may 
 confess and avoid it by showing thai it is determined (r). It was 
 formerly necessary that the tenant of the mortgagor should attorn 
 to the mortgagee before the latter could claim rent from hi in. hut 
 it is now sufficient that the mortgagee should give the tenant no- 
 tice to pay the rent to him (s). 
 
 It often happens that the relation of landlord and tenant is ere- Attornment 
 ated between the mortgagee and the mortgagor by means of the clauso in 
 insertion of an attornment clause in the mortgage deed. The mortgage, 
 object of this is, of course, to give the mortgagee the benefit of 
 the power of distress possessed by a landlord, and it is a perfectly 
 legitimate device where the arrangement is bond file and not a 
 mere contrivance for giving a preference to the mortgagee in case 
 of the bankruptcy or insolvency of the mortgagor (i). In such 
 a case the mortgagee is entitled to distrain the goods even of a 
 stranger («). 
 
 A considerable modification of the law connected with the sub- ^ c ^ f jqqj 
 ject-matter of this note has been effected by the Conveyancing 
 and Law of Property Act, 1881. It applies to mortgages made after 
 the Act and where no contrary intention is expressed in the mort- 
 gage deed. Subject to the provisions of the Act, the mortgagor 
 while in possession may, if he reserve the best available rent, 
 grant certain leases to take effect in possession not later'than 
 twelve months after date. For further information the student 
 should refer to the statute itself (x). 
 
 The Judicature Act, 1873 (#), gives power to " a mortgagor en- Judicature 
 titled for the time being to the possession or receipt of the rents Act, 1873. 
 and profits of any land as to which no notice of his intention to 
 take possession or to enter into the receipt of the rents and profits 
 thereof shall be given by the mortgagee" to sue for such posses- 
 sion, to recover rent due to him, or to bring an action of trespass 
 in his own name "unless the cause of action arises upon a lease 
 or other contract made by him jointly with another person." It 
 has been held that a mortgagor in receipt of rents and profits has 
 a sufficient interest to enable him to maintain an action for an 
 injunction to restrain an injury done to the mortgaged property, 
 and that without joining the mortgagee as a party (z). 
 
 (r)r>oed. Marriott r.Edwards, Ch. D. 335. 
 5 B. & Ad. 1065. (w) Kearley v. Philips, 11 Q. 
 
 (s) Rawson v. Eicke, 7 A&E. B. D.. 621. 
 451; Cook v. Guerra, 41 L. 5., (.r) 44 & 45 Vict. c. 41, s. 18. 
 C. P. 89. \y) S 25, sub-s. 5. 
 
 (/) Ex parte Voisev, In re (z) Fairclough v. Marshall, 4 
 
 Knight, 21 Ch. D. 412, and In Ex. D. 37. 
 re Stockton Iron Furnace Co. 10 
 
 9 COMMON LAW.
 
 110 COVENANTS RUNNING WITH THE LAND. 
 
 Covenants Running with tlie Land. 
 
 [46.] SPENCER v. CLARK. 
 
 (Sometimes called Spencer's Case.) 
 [5 Rep. Gl (1583).] 
 
 Spencer let a house and grounds to Smith for twenty- 
 one years, and Smith covenanted to build a brick wall 
 on the lands let to him. Smith assigned the demised 
 premises to Jones, without having made the least at- 
 tempt at building the brick wall. But Jones could not 
 live there either, and he in his turn passed on the place 
 to Clark. Meanwhile nobody had built the wall, and 
 Spencer called on Clark to do it, saying that as the as- 
 signee he was bound by Smith's covenant. 
 
 It was decided, however, that Clark was not bound to 
 build the wall, Smith not having covenanted for his as- 
 signs but only for himself as to a subject-matter not in 
 existence at the time of the covenant. 
 
 Running A covenant is said to new with the fand when either the liability 
 
 with land. ^ () perform it, or the right to take advantage of it, passes to the 
 
 assignee of that land. 
 Running -A. covenant is said to run with the reversion when either the lia- 
 
 with rever- bility to perform it, or the right to take advantage of it, passes 
 
 to the assignee of that reversion. 
 
 At common law covenants ran with the land, but not with the 
 
 reversion. 32 Hen. VIII. c. 34, however, corrected that anomaly 
 
 (a). 
 The law on the subject of covenants running with the land 
 
 may be summed up as follows: — 
 n\ (1.) Suppose the lessee who makes the covenant omits all men- 
 
 Assigns not Hon of his assigns, and thinks only of himself, 
 mentioned. ( rt _) if the covenant has to do with something not in existence 
 
 at the time the lease is made, the assignee is not bound (&). This 
 
 is precisely the case of Spencer v. Chirk. The brick wall was not in 
 
 (a) See also 44 & 45 Vict. e. {b) Doughty v. Bowman, 11 
 41, ss. 10 and 11. Q. B. 444.
 
 COVENANTS RUNNING WITH THE LAND. 1 1 1 
 
 existence at the time the lease was made, and indeed history does 
 not record that it had any subsequent existence. 
 
 In Minshull v. Oakes (e), however, the court expressed their Minshull o 
 opinion that it was not consistent with reason that the naming of ' lakes, had 
 the assigns in a covenant. should vary the liability. hiw. 
 
 (b.) "When the covenant extends to a thing in esse, parcel of 
 the demise, the thing to he done by force of the covenant is in a 
 manner annexed and appurtenant to the thing demised, and shall 
 run with the land, and shall bind the assignee, although In; be 
 not bound by express words " (d). 
 
 "The following covenants seem to run with the land, so as to p ar t icular 
 bind the assignee, whether of the reversion or the term, although covenants 
 not named: — A covenant to pay rent or taxes, or to repair, or to held to run 
 leave in repair; to maintain a sea wall in esse (e); to repair, re- Wlt " land - 
 new, and replace tenants' fixtures and machinery fixed to the 
 premises (/); not to plough; to use the land in a husbandlike 
 manner; to lay dung on the demised land annually; to reside on 
 the demised premises during the term ; to permit the lessor to 
 have access to two rooms excepted from the demise ; to carry all 
 the corn produced on the demised land to the lessor's mill to be 
 ground (g) ; to leave the land as well stocked with game at the 
 end of the term as it was found to be at the beginning of it (/*); 
 to supply demised houses with good water ; to repair, and pay 
 ground rent; for quiet enjoyment; to produce title-deeds; to make 
 further assurance; to renew the lease; to endeavour to procure a 
 renewal of the lease for another life (in an underlease by lessee 
 for lives); and to build a new smelting mill in lieu of an old one 
 in a lease of mines (i). There is also authority that the covenant 
 to insure (/«•), the covenant not to assign or sub-let without li- 
 cence (I), and the covenant not to carry on a particular trade (m), 
 run with the land " (n). 
 
 Moreover all implied covenants run with the land. 
 
 (2). Suppose, however, that the lessee covenants for his assigns (o.) 
 as well as for himself. Assigns med- 
 
 (a.) The assignee is, of course, liable in case (Z».) of (1). tioned. 
 
 (b.) But he is also bound in case (a.) of (1), provided that what 
 is to be done is to be done o\i the demised premises (o). 
 
 Clark, for instance, would have had to build the wall if Smith 
 had covenanted for his assigns. 
 
 (e) 2 H. & N. 793. (i) Sampson v. Easterby, 9 B. 
 
 (d) Per cur. in Bally v. Wells, & C. 505. 
 
 3 Wils. 95. (k) Vernon v. Smith, 5 B. & 
 
 (e) Morland v. Cook, L. E. 6 A 1. 
 
 Eq. 212. (/) Williams v. Earle, sup. 
 
 (/) Williams v. Earle, L. R. (m) Congleton v. Pattison, 10 
 
 1 Q. B. 739. East, 1 30. 
 
 (</) Vyvyani'. Arthur, 1 B. & (n) Woodf. Landl. and Ten 
 
 C. 410. (12th ed.) 149. 
 
 (/<) Hooper v. Clark, L. E. 3 (o) Bally v. Wells, sup. 
 Q. B. 200.
 
 112 
 
 COVENANTS RUNNING WITH TIIE LAND. 
 
 Personal 
 covenants. 
 
 Assignee in- 
 demnifies 
 lessee. 
 
 Other coven- 
 ants respect- 
 ing land. 
 
 With land- 
 owner. 
 
 (c. ) The assignee, though expressly named, is not bound hy a 
 covenant which is merely personal or collateral to the demised 
 premises. 
 
 "The following covenants seems to be personal covenants, so 
 as not to bind the assignee. A covenant by a lessor to pay on a 
 valuation for all trees planted, or all improvements made, by the 
 lessee during the term; to give the lessee the option of pre-emp- 
 tion of apiece of ground adjoining the demised premises; a cove- 
 nant by lessee to pay, in addition to rent reserved, ten per cent, 
 on the outlay which the lessor should make in improving the 
 buildings; not to keep a beer-shop within a certain distance of 
 the demised premises (p); a covenant to pay rent and repair, 
 made with a mortgagor and his assigns, in a lease granted by 
 himself together with the mortgagee; a covenant in an underlease 
 whereby the lessor covenanted to observe, and indemnify the 
 lessee against, the covenants in the superior lease, one of which 
 "was to build several houses on the land (q); and a covenant by 
 lessee for himself, his executors, and assigns, not to have persons 
 to work in a mill to be erected on the demised premises who 
 were settled in other parishes without a parish certificate. Where 
 the lessee of a theatre agreed to repay money lent to him by the 
 plaintiff on a day certain, and that until payment the plaintiff 
 and such persons as he might appoint should have the free use of 
 two boxes (not specified), and atterwards assigned his interest, 
 it was held that this was a mere personal contract, and that no 
 action could be maintained against the assignee for refusing to 
 permit the plaintiff to use the boxes" (>•). 
 
 There is an obligation implied by law on the assignee of a lease 
 to indemnify the original lessee against breaches of covenants run- 
 ning with the land committed duringhis own tenancy, the lessee 
 being in the position of surety to the lessor for the assignee (s). 
 
 It is to be observed that there may be covenants respecting 
 land between persons who do not stand to one another in the re- 
 lation of landlord and tenant, and some of such covenants run 
 with the land. It will be convenient to divide these covenants 
 into two classes: — 
 
 (1.) Covenants made by a person with the owner of land to do 
 something in respect of that land. 
 
 The benefit of such a covenant (e. g., for title) runs with the 
 land so that each successive transferee who is in of the same es- 
 tate as the original covenantee was may enforce it {I). It would 
 appear that the covenantor may be a mere stranger. 
 
 (p) Thomas v. Hay ward, L. 
 E. 4 Ex. 311. 
 
 (q) Doughty v. Bowman, sup., 
 but see Martyn v. Clue, 18 Q. 
 B. 661. 
 
 (r) Flight v. Glossopp, 2 Bing. 
 N. C. 125; Woodf. p. 151. 
 
 (s) Moule v. Garrett, L. R. 7 
 Ex. 101, and "Wolveridge v. 
 Steward, 1 Or. & M. 644. 
 
 (t) Kingdon v. Xottle, 4 M. 
 & S. 53, and see Sharp v. Water- 
 house, 7 E. & B. 816.
 
 COVENANTS RUNNING WITH THE LAND. 113 
 
 (2.) Covenants made hy the owner of land to do something in p >y ] an ,]_ 
 respect of that land. .owner. 
 
 Such covenants (except, perhaps, -where the covenantee has t )o U(tt „ en _ 
 some interest in the land independently of the covenant) do not erally run 
 run with the land. If they did, a purchaser might find himself with land. 
 saddled with obligations of which he was ignorant, and which 
 would have deterred him from buying, had he known of them ; 
 and the law looks with disfavour on impediments to the free cir- 
 culation of property («). If, however, a person takes premises P,ut pnrchas- 
 with full knowledge of the existence of such a covenant, he may ers ^v it li no- 
 be bound by it (x) ; and, indeed, it is his duty to enquire into } ue n ? a ^ 
 the title of his vendor or lessor (y). Thus, in the recent case 
 of Patnian v. Harland (z), it appeared that in 1876 a convey- p a tman v. 
 ance in fee of building-land at Wimbledon had been made to Harland. 
 a purchaser subject to a covenant against erecting on the land 
 anything except a private house. The land was afterwards leased, 
 and the lessee put up a corrugated iron building as an art studio 
 for ladies. In an action by the original vendor against the lessee 
 it was held that any representations by the lessor to the lessee 
 that there was no restrictive covenant did not protect the lessee 
 from being affected with constructive notice of the lessor's title, 
 and that a purchaser who has notice of a deed necessarily affect- 
 ing the vendor's title has notice of the contents of the deed. 
 It was also held that the doctrine that a lessee has constructive 
 notice of his lessor's title is not altered by the Vendor and Pur- 
 chaser Act, 1874 (a), but a lessee who is within that Act is in the 
 same position as if he had contracted not to look into his lessor's 
 title. 
 
 The very recent case of Haywood ». The Brunswick Permanent Doctrines not 
 Benefit Building Society (b), however, shows that these doctrines *° '"' extend- 
 are not to be pushed too far. A plot of ground was conveyed sub- 
 ject to a rent-charge, the grantee for himself, his heirs, execu- 
 tors, and assigns, covenanting with the grantor, his heirs, and 
 assigns, that he, the grantee, his heirs or assigns, "will erect 
 within two years from the date of these presents, and all times 
 thereafter keep in good and tenantable repair and condition, and 
 from time to time, when necessary, will rebuild upon the said 
 plot of land such good and substantial messuages or other build- 
 ings as shall be of the annual letting value of at least double the 
 amount of rent^charge limited in respect of such plot." In an 
 action by the assignee of the grantor against mortgages in pos- 
 
 (u) Keppler. Bailey, 2 Mv. & Nottingham Patent Brick and 
 
 K. 517. Tile Co. v. Butler. 15 Q. B. D. 
 
 (x) Tulk v. Moxhay (the Lei- 201 ; Groves v. Loonies", 55 L. J., 
 
 cester Square case), 2 Ph. 774, Ch. 52 ; and Brown v. Iuskip, 1 
 
 and Luker v. Dennis, 7 Ch. Div. C. & E. 231. 
 
 227. (z) 44 L. T., N. S. 728. 
 
 (y) Wilson v. Hart, L. R. 1 C. (a) 37 & 38 Vict, c. 78, s. 2. 
 
 H. 463, and see Thomewell v. (b) 45 L. T., N. S. 699. 
 Johnson, 44 L. T., N. S. 768 ;
 
 114 COVENANTS RUNNING WITH THE LAND. 
 
 session to an assignee of the grantee for breach of this covenant, 
 it was held that the covenant did not run with the land so as 1<» 
 make the defendants Liable at common law, and that it was not 
 a covenant which could be enforced in equity against assignees 
 with notice. "It strikes me," said Lindley, L.J., "that this is 
 an attempt to extend the doctrine of Tulk v. Moxhay too far." 
 S<e also Austerberry v. Corporation of Oldham, 29 Ch. D., 750. 
 Restrictive -^ s ^° now ^ ar a restrictive covenant justifies a vendee in claim- 
 
 covenants, ing a declaration that the vendor has not shown a good title, the 
 recent case of In re Higgins and Hitchman's contract (c) may he 
 consulted. There, on the sale of a villa at St. Leonard's, the 
 vendor agreeing to deduce a good title, it appeared that the ven- 
 dor's predecessor in title had covenanted not to use the premises 
 as gasworks or a public-house. It was held that this covenant 
 constituted a fatal objection to the title, although the respecta- 
 bility of the neighborhood made it extremely unlikely that any- 
 body would ever want to convert the villa into gasworks or a 
 public-house. 
 
 Implied Warranty on Letting Furnished House. 
 
 [47.] SMITH v. MARRABLE. 
 
 [11 M. & W. 5 (1843).] 
 
 " 5, Brunswick Place, Sept. 19, 1842. 
 
 "Lady Marrable informs Mrs. Smith that it is her de- 
 termination to leave the house in Brunswick Place as 
 soon as she can take another, paying a iveek's rent, as 
 all the bedrooms occupied bid one are so infested with 
 bugs that it is impossible to remain" 
 
 And in pursuance of this determination the Marra- 
 bles moved out, and Smith went to law with them, al- 
 leging that as they had taken the house for five weeks 
 they had no business to leave in this summary fashion, 
 bugs or no bugs. The Marrables, on the other hand, 
 successfully contended that it is an implied condition 
 in the letting of a furnished house that it shall be rea- 
 sonably fit for lutbitation, and that, if it is not fit, the 
 tenant may quit without notice. 
 
 (c) 51 L. J. Ch. 772, and see L. T.. N. S. 413, and Sayers v. 
 L. C. & D. Ky. Co. v. Bull, 47 Collyer, 28 Ch. D. 103.
 
 WARRANTY ON LETTING FURNISHED HOUSES. 115 
 
 The famous bug case, after having been disrespect fully spoken 
 of for many years, was in 1877 expressly affirmed by the case of 
 Wilson v. Finch Ilatton (d), where its principle was- applied to 
 defective drainage. 
 
 It is to be observed that it is only in the ease of furnished Exception to 
 houses that reasonable fitness is an implied condition. In general, rule. 
 in the absence of deceit, there is no such implied condition by 
 the lessor of land or houses (e), nor that he will do any re- 
 pairs (/), nor even that the house will endure during the term. 
 See, however, the 12th section of the Housing of the Working 
 Classes Act, 1885 (48 & 49 Vict. c. 72), with regard to houses let 
 for habitation by persons of the working classes at a low rent. 
 In the recent case of Manchester Bonded Warehouse Co. v. Attempts to 
 Can- {g), where a building had fallen in consequence of a floor increase lia- 
 being overloaded with flour, and rent was claimed by the lessors ' ji^.'i 
 during the time the building was unoccupied, the court said dis- 
 tinctly, "We are not prepared to extend these decisions [viz., 
 Smith v. Marrdble and W T ilson v. Finch Hatton] to ordinary leases 
 of lands, houses, or warehouses, as we must if we are to hold 
 the plaintiffs liable for the fall of this warehouse by reason of 
 any implied covenant or warranty. ' ' Another courageous attempt 
 to extend the liabilities of landlords was made in Anderson v. 
 Oppenheimer (/*), where the tenant of the ground floor and base- 
 ment of a bouse in Cannon Street, let out in flats to different ten- 
 ants, tried unsuccessfully to get damages under a covenant for 
 quiet enjoyment for the bursting of a water pipe and consequent 
 injury to his goods. In Powell v. Chester (?) the grievance was 
 that there was an insufficient water supply, but Bacon, V.C., de- 
 clined to apply the principle of Smith v. Marrable to the facts of 
 the case. Indeed his judgment shows a disposition to limit the 
 application of the principle as much as possible. 
 
 It may be mentioned that when the lessor has covenanted to Covenant by 
 keep the demised premises in repair during the term, he is en- landlord to* 
 titled to notice of want of repair (k). It has been held that repair, 
 under a covenant to keep the demised premises in repair the 
 lessor is not bound to cleanse an ornamental piece of water in the 
 grounds (Z). And even when the landlord is bound to do the 
 repairs, there is no implied condition that the tenant may quit if 
 the repairs are not done (m), nor may he do them himself, and 
 deduct the amount from his rent (»). 
 
 (d) 2 Ex. Div. 336. (k) Makin r. Watkinson. L. 
 
 {e) Keates v. Cadogau, 10 C. R. 6 Ex. 25. 
 
 D. 591. (0 Bird v. Elwes, L. R. 3 Ex. 
 
 (/) Gott v. Candy, 2 E. & B. 225. 
 
 847. (m) Surplice v. Farnsworth, 7 
 
 (q) 5 C. P. D. 507. M. & G. 576. 
 
 (h) 49 L. J. Q. B. 708. (n) Weigall v. Waters, 6 T. 
 
 (i) 52 L. T., N. S. 722. R. 488.
 
 116 
 
 JOINT TENANCY. 
 
 Joint Tenancy. 
 
 [48.] MORLEY v. BIRD. 
 
 [2 Ves. 629 (1798).] 
 
 William Collins by his will gave all his property to 
 his daughter Elizabeth, on condition that she paid to 
 the four daughters of his brother John "four hundred 
 pounds out of seven noiv lying in the £3 per cent, con- 
 solidated.'''' 
 
 Three of John's daughter's having died during the 
 testator's lifetime, it was held that Martha, the fourth 
 daughter, who survived him, was entitled to the whole 
 legacy given to the four daughters. 
 
 "Great doubts," said Sir R. P. Arden, M.R., "have 
 been entertained by judges, both at law and in equity, 
 as to words creating a joint tenancy or a tenancy in 
 common; and it is clear the ancient law was in favour 
 of a joint tenancy. And that law still prevails: unless 
 there are some words to sever the interest taken, it is at 
 this moment a joint tenancy, notwithstanding the lean- 
 ing of the courts lately in favour of a tenancy in com- 
 mon. . . . ' . This is a legacy to four persons, and 
 there are no words of severance; therefore it is a joint 
 legacy, and the whole interest survives to the survivor, 
 three being dead." 
 
 Characteris- 
 tics of joint 
 tenancy. 
 
 An estate in joint tenancy is one acquired by two or more per- 
 sons in the same land, by the same title (not being a title by de- 
 scent), at the same period, and without words importing thai they are 
 to take in distinct shares. Joint tenants are not considered as hold- 
 ing in distinct shares, like tenants in common, but each is equally 
 Ri"ht of sur- cnt '^ e 'l fo ^ e whole ; and it is from this entirety of interest that 
 vivorship. the most remarkable incident of joint tenancy, the right of sur- 
 vivorship, arises, 
 
 But, although there may be no words of severance, special cir- 
 cumstances may sometimes justify the courts in construing what 
 seems to be a joint tenancy to be really a tenancy in common ;
 
 JOINT TENANCY. 117 
 
 e.g., the purchase money being advanced in unequal proportions Tenancy in 
 (o), or the purchase being made for a joint undertaking {p), or, common. 
 again, in the case of marriage articles (q). though no 
 
 So far as the law of contracts is concerned, the most important severance 
 aspect in which joint tenants and tenants in common can be re- Leases by 
 garded is as landlords, and on that branch of the subject the fol- joint tenants 
 
 lowing remarks from a work of great authority in the profession and tenants 
 
 i i i in common, 
 
 may be quoted:— 
 
 "Joint tenants and tenants in common may, according to the 
 interest they have, join or sever in making leases; and such leases 
 bind whether made to commence iwprsesenti ovinfuturo. If joint 
 tenants join in a lease, there is but one lease, and they all make 
 but one lessor, for they have but one freehold; but if tenants in 
 common join in a lease, there are several leases of their several in- 
 terests; for although tenants in common cannot make a joint lease 
 of the whole of their estate, yet if they join in a lease for years 
 by indenture of their several lands, it is the lease of each for 
 their respective parts, and the cross confirmation of each for the 
 part of the other, and no estoppel on either part, because an act- 
 ual interest passes from each respectively. There is no doubt 
 that a demise by tenants in common, though joint in its terms, 
 operates as a separate demise by each tenant in common of his 
 undivided share, and a confirmation by each of his companions 
 (c). Where joint tenants concur in granting a lease, the interest 
 of the lease continues, notwithstanding the decease of either of 
 the lessors, and the survivor is entitled to the whole rent (s). 
 So, if the lease be at will, the death of one of the lessors does 
 not operate as a countermand of the tenancy even for a moiety; 
 all survives to the other, and if the lessee continue his posses- 
 sion, the survivor may maintain an action for the whole rent. 
 But though each joint tenant is considered entitled to the whole 
 while the joint tenancy continues, and is said to be seised ' per 
 my et per tout,' yet for the purposes of alienation, each has an 
 exclusive right to, and dominion over, his own share or propor- 
 tion ; and therefore if one of two joint tenants make a lease 
 of the whole, his moiety only will pass (/). So, a lease purport- 
 ing to be made by both, and executed by one only, is a good lease 
 for the moiety of him only who has executed. 
 
 "If one joint tenant make a lease of his moiety for years, and 
 die before the lessee's entry, the lease will bind the survivor, and 
 the lessee will retain his interest in the moiety demised until his 
 
 (o) Lake r. Craddock, 1 Lead. (>•) Thompson v. Hakewill, 19 
 
 Cas. Eq. 205. C. B., N. S. 713. 
 
 ( p) Jeffereysf. Small, 1 Vern. (s) Doe v. Summersett, 1 B. & 
 
 217. Ad. 135. 
 
 (q) Liddard v. Liddard, 28 (t) Bellingham v. Alsop, Cro. 
 
 Beav. 266. Jac. 52.
 
 118 
 
 Lease to 
 each other. 
 Joint ten- 
 ancy, how 
 dissolved. 
 
 JOINT TENANCY. 
 
 term expire. And so one joint tenant may make a lea~e to com- 
 mence after his death, and his co-tenant, if he survive, will be 
 bound by it (u). 
 
 "One joint tenant or tenant in common may make a lease for 
 years of his part to his companion" {x). 
 
 A joint tenancy may be dissolved by partition, by alienation 
 without partition, or by accession of interest. A joint tenant, how- 
 ever, can imt leave his share by will, because a will is of no force till 
 the testator is dead, and then the right of survivorship, which ac- 
 crued at the original creation of the estate, has a prior claim to 
 be considered (y). If one of three joint tenants exercises his 
 power of disposition in favour of a stranger, that person will then 
 hold one undivided third part of the land as tenant in common 
 with the remaining two (2). 
 
 [49.] 
 
 Licences. 
 
 WOOD v. LEADBITTER. 
 [13 M. & W. 838 (1845).] " 
 
 Mr. Wood usually made a point of seeing the Leger. 
 But, while he was in the Grand Stand enclosure at the 
 Doncaster races in 1843, with a four days' ticket, for 
 which he had paid a guinea, in his pocket, an official 
 came up to him, and, " in consequence of some alleged 
 malpractices of his on a former occasion connected with 
 the turf," requested him to leave, adding that, if he did 
 not, it would be his duty to turn him out. Mr. "Wood 
 declined to go, and so Leadbitter, by order of Lord 
 Eglintoun, the steward of the races, took him by the 
 shoulders and dragged him out. 
 
 For this assault, as he called i t, Mr. "Wood now brought 
 an action, maintaining that he was on the Grand Stand 
 by the licence of Lord Eglintoun, inasmuch as that no- 
 
 («) Clerk t>.'Clerk,2Vern.323. 
 
 (x) Cowper v. Fletcher, (i B. & 
 S. 464; Woodf. Landl. and Ten. 
 (12th ed.) p. 9 
 
 (y) Smith v. Roberts, 3 Burr. 
 1 188. 
 
 (z) Wins. R. P. (13th ed.) p. 
 138.
 
 LICENCES. 119 
 
 blenian had sold him a ticket, and that such licence was 
 irrevocable. It was held, however, that such a licence 
 was not irrevocable, and that Lord Eglintoun had a por- 
 fect right, without returning the guinea, and without 
 assigning any reason, to order the plaintiff to quit the 
 enclosure, and, if necessary, to have him forcibly re- 
 moved. 
 
 The leading case goes no further than to establish that a mere T^ccnce con- 
 licence (even though under seal) is revocable ; the reason heing fers no inter- 
 that such a licence confers no interest in land, but only renders '' s ^ > n land. 
 lawful what would without it be a trespass. Such a licence may be licence now 
 revoked, not merely by express words, but by any act of the li- revoked, 
 censor which shows his unwillingness or inability to continue it. 
 Locking a gate, for instance, or selling a field, would operate as a 
 revocation. Of course, if the agreement was regular, an action 
 for damages lies on the licence being revoked. 
 
 But if the licence is more than a mere licence, if it comprises Licence 
 or is connected with a grant, then the person who has given it when irre- 
 caunot revoke it so as to derogate from his own grant. Thus, if vocable. 
 a person sells goods on his own land, and gives the vendee a li- 
 cence to come and take them, he cannot revoke the licence ; and 
 the vendee would be justified in breaking down the gates and 
 entering to take the goods (a). But a licence connected with an 
 invalid grant is revocable (b). In the case of Winter v. Brock- 
 well (c) it was held that a parol licence given to a neighbour to 
 erect a sky-light on the neighbour's own land could not be revoked 
 after it had been executed at the neighbour's expense. But a 
 parol licence to make a drain on the licensor's land may be with- 
 drawn at pleasure, though the licensee may have spent quite a 
 fortune over it (d). 
 
 Difficulties sometimes arise in practice as to whether an instru- T enan t, or 
 ment creates a tenant or merely a licensee.' The test appears to licencee? 
 be whether it was the intention of the parties that the person let 
 into possession should have the exclusive possession or not. If it 
 is clear that that was not the intention of the parties, the instru- 
 ment is not a demise or lease, although it contains the usual 
 words of demise (e). 
 
 Though a licensee has no title as against his licensor, it is not >i ;lv licensee 
 so clear that he may not sue a third person who interrupts him sue third 
 in the enjoyment of his licence. In Xuttall r. Bracewell (/), a l >:utv • 
 mill-owner who had for some time enjoyed the benefit of the flow 
 
 (a) Wood v. Manley, 11 A. & (d) ITewlius v. Shippam, 5 B. 
 E. 34. &C. 221. 
 
 (b) Roffey v. Henderson, 17 Q. (e) Hancock v. Austin. 14 C. 
 B. 574. B.. X. S. 6:?4. 
 
 (c) 8 East, 308. (/) L. K. 2 Ex. 1.
 
 120 LICENCES. 
 
 Nuttall V. of water through a goit from a natural stream, was held entitled 
 Bracewcll. to recover damages against a riparian owner for intercepting the 
 water of the stream: and Bramwell, B., put his right to succeed 
 on the plain ground thai a riparian land-owner can grant to anon- 
 riparian land-owner the flow of water from the stream to his premises 
 for the use of the premises, and the grantee mag tue for a disturbance 
 of his enjoyment by a higher riparian owner. Some of the judges, 
 however, were inclined to consider that the plaintiff was a riparian 
 proprietor in respect of the goit, and on that ground decided in 
 his favour. Speaking of the previous case of Hill r. Tupper (g) 
 (where the Basingstoke Canal Company had given the plaintiff 
 the exclusive right of putting pleasure hoats on the qanal, and 
 yet it was held that their having done so gave them no right of 
 action against a puhlican who also began putting boats on the 
 canal), Bramwell, B., said, "But it may be said. How is Hill v. 
 Tupper distinguishable? One mode of enjoying land covered 
 with water is to row boats on it, and the owner has an exclusive 
 right. I think it easy to point out the distinction. It was com- 
 petent for the grantors in that case to grant to the plaintiff a 
 right of rowing boats on the canal ; and had anyone interfered 
 with that right, the grantee might have maintained an action 
 against him. But the plaintiff there did not sue for any such 
 cause of action. He sued, not because his rowing was interfered 
 with, but because the defendant used a boat on the icaler. 
 
 Perhaps,. however, the more satisfactory ground on which to 
 rest the decision in Hill v. Tupper is that the right claimed was 
 of a novel character, and one not capable of existence in law, so 
 that it could operate onlj' as a licence between grantor and grantee, 
 and could confer no property as against third persons. 
 
 Contracts Contrary to Public Policy. 
 
 [50.] 
 
 EGERTON r. BROWNLOW. 
 [4 H. L. CAS. 1 (1853).] 
 
 The seventh Earl of Bridgewater was anxious that 
 after his death some member of his family should become 
 a duke, and with that great object in view ho sat down 
 and made his will. He left large estates to Lord Alford 
 and his heirs, but expressly provided that, if Lord Al- 
 ford died without being made a duke, they should go over. 
 
 (g) 2 H. & C. 121.
 
 CONTRACTS CONTRARY TO PUBLIC POLICY. 121 
 
 Lord Alford was not made a duke, but it was held 
 nevertheless that the estates did not go over, as the 
 condition subsequent which the earl had imposed was 
 contrary, to public policy and void. 
 
 "May I not do what I will with mine own?" Why, cer- No true 
 tainly; but perhaps you will have the kindness to tell us what ownership of 
 is your own. No man, according to our law, is the owner of land. I;u "'- 
 At the most he is tenant in fee simple; the ownership residing all 
 the time in the Crown, that is, ia the State. As to personal 
 property, the law recognises a quasi-ownership. In other words, 
 it protects a man in the enjoyment of it. But, of course, an Act 
 of Parliament can take away all those safeguards which are 
 thrown round the enjoyment of property, whether real or per- 
 sonal; and when the interests of the State and the interests of 
 individuals happen to clash, public policy (that is, "the public 
 good recognised and protected by the most general maxims of 
 the law and the constitution") requires that the former shall 
 prevail . 
 
 Egerton v. Brownlow is an important case on this "public pol- Principle of 
 icy." It was considered that the condition violated it because it leadingcases. 
 would be "mischievous to the community at large that every 
 branch of the public service should be besieged by persons who 
 at the peril of losing their estates were making every effort to 
 obtain offices for which they might be unfit, and to procure 
 titles and distinctions of which they might be unworthy," and 
 because the common law hates capricious conditions. 
 
 It is to be observed that, in dealing with cases of this kind, Maxims, 
 the courts are not distributing a kind of equity differing with 
 the length of each judge's foot, but are acting on certain well- 
 known principles and maxims, such as, Solus populi suprema lex, 
 Nihil quod est inconvenicns est licitum, Sic utcre tuo ut alienum non 
 lacdas, dre. 
 
 The student may with advantage refer to two recent cases on "You vote for 
 public policy. In one of them (h) the plaintiff and defendant my man, and 
 were both subscribers to a certain charity, the objects of which I'll vote for 
 were elected by the subscribers with votes proportioned to the y ours - 
 amount subscribed. The defendant on one occasion was anxious 
 that a particular person should be elected; so, to compass his ob- 
 ject, he agreed with the plaintiff that, if the latter would give 
 twenty-eight votes for the candidate at this election, he (the defendant) 
 would at the next election give twenty-eight votes for anybody the 
 plaintiff wished. Accordingly, the plaintiff voted for the defend- 
 ant's candidate; hut, when the next election came round, the 
 defendant refused to furnish the twenty-eight votes he had 
 promised, and the plaintiff in consequence subscribed £7 7s. to 
 
 (A) Bolton v. Madden, L. E. 9 Q. B. 55.
 
 122 CONTRACTS CONTRARY TO PUBLIC POLICY. 
 
 the charily so as to obtain twenty-eight more votes in his own 
 right. In an action for the money thus paid, it was urged by 
 the defendant that the agreement was void as against public pol- 
 icy. "The argument for the defendant," said Blackburn, J., 
 '• was that the .subscriber to a charity is under an obligation to 
 give his votes for the best object, and that the plaintiff, if he 
 gave his votes at the first election to what he thought the best 
 candidate, incurred neither trouble nor prejudice, so that'there 
 was in that point of view no consideration; and if he gave his 
 votes to the candidate whom he did not think the best, the 
 whole agreement was void as against public policy. But though 
 some of us, at least, much disapprove of this kind of traffic, we 
 can find no legal principle to justify us in holding that the sub- 
 scriber to a charity may not give his votes as he pleases, answer- 
 ing only to his own conscience and reputation for the way he 
 exercises his power." 
 Keepin" it I" the other case (■/), the plaintiff had seduced a man's wife, 
 
 secret. and had then entered into an agreement with husband that, if 
 
 the latter would keep the affair secret, the former would not en- 
 force the payment of a certain bond. The husband died; and, 
 thinking perhaps that the secret had died with him, the plaintiff 
 sued on the bond. In answer to the claim, the executor pleaded 
 the agreement; but the plea was held bad, on the ground that 
 there was no valid consideration for the plaintiff's promise. 
 
 Other subjects illustrating public policy are bribery ; champerty 
 and maintenance; sale of offices ; insurance of seamen's wages; trad- 
 ing with enemies; and assignment of salaries: and the student is 
 recommended to refer to the following, amongst other, cases: — 
 Coppock v. Bower, 4 M. & AY. 3G1 ; Ball v. Warwick, 44 L. T., 
 N. S., 218; Keir v. Leeman, 9 Q. B. 371; Potts v. Bell, 8 T. R. 
 548; YYebster v. De Tastet, 7 T. R. 157; Stanley v. Jones, 7 Bing. 
 369; In re Parker, 21 Ch. D. 408; Bradlaugh v. Newdegate, 11 
 Q. B. D. 1; Appleby v. Franklin, 34 AY. R. 231. 
 
 [51.] 
 
 Illegal Contracts. 
 
 COLLINS pl BLANTERN. 
 [2 AYils. 341 (1767).] 
 
 This was an action on a bond which was intended to 
 secure to the plaintiff the repayment of a sum of £350. 
 
 (i) Brown v. Brine, 1 Ex. Div. 5.
 
 ILLEGAL CONTRACTS. 123 
 
 But the fact was that the plaintiff had advanced the 
 money for the purpose of squaring a criminal prosecu- 
 tion, and it was therefore successfully pleaded that the 
 consideration for the bond iras illegal and, although it 
 did not appear on the face of the deed, vitiated it. 
 
 Said Lord Chief Justice Wilmot, in memorable words, 
 "You shall not stipulate for iniquity. All writers upon 
 our law agree in this — no polluted hand shall touch the 
 pure fountains of justice. Whoever is a party to an 
 unlawful contract, if he has once paid the money stip- 
 ulated to be paid in pursuance thereof, he shall not have 
 the help of a court to fetch it back again; you shall not 
 have a right of action when you come into a court of 
 justice in this unclean manner to recover it back. Pro- 
 cul 01 procul este profani!" 
 
 A deed is of so solemn a nature that whatever a man therein 
 asserts he is estopped from afterwards denying. On the other 
 hand, "the pure fountains of justice" must not be polluted; and 
 so we get engrafted on our rule the exception that illegality is fa- n . . 
 tal, not only to an ordinary agreement, but even to a deed. ^ illegality 
 
 It may happen, however, that the legal part of an agreement g eV eral 
 can be separated from the illegal. This can never be the case promises, 
 where one of several considerations is illegal, because it cannot be some illegal, 
 known which of them induced the promise. But when the con- some uot- 
 sideration is not illegal, and there are several promises, some of 
 which are illegal, and others not, the agreement is void only if 
 the illegal promises are incapable of being separated from the 
 legal. 
 
 Illegal contracts are generally divided into two classes: — 
 
 (1.) Those illegal by the common law. 
 
 (2.) Those illegal by statute. 
 
 Under the former head come contracts in restraint of marriage Common law 
 or trade, contracts impeding the administration of justice, im- illegality, 
 moral contracts, and the like. Under the latter head may be Statutory 
 mentioned Sabbath-breaking and gaming contracts. To make a illegality, 
 contract void, the statute need not use express words of prohibi- Penalty im- 
 tion; if it inflicts a penalty, it is sufficient (k). If, however, the plies prohi- 
 object of the statute is not to prohibit the act done, but only to im- n lou * 
 pose a penalty for the purpose of the revenue, the contract will not 
 be illegal (I). 
 
 (k) Cope v. Rowlands, 2 M. & son, 4 C. B. 376. 
 W. 149; Bensley v. Bignold, 5B. (I) Smith v. Mawhood, 14 M. 
 & Aid. 335; and Cundell v. Daw- & W. 452.
 
 124 
 
 ILLEGAL CONTRACTS. 
 
 Agreement to 
 
 stifle prose- 
 cution. 
 
 Infection. 
 
 Recovering 
 money paid 
 for illegal 
 purpose. 
 
 Glaucina 
 and the 
 F^psorn 
 Stakes. 
 
 Though an agreement to stifle a public prosecution is illegal, 
 in such cases the intention to impede the administration of justice 
 must be clearly proved. In the recent case of Flower v. Sadler 
 (m) it was held that in order to render illegal the receipt of se- 
 curities by a creditor from his debtor, where the debt has been 
 contracted under circumstances which might render the debtor 
 liable to criminal proceedings, it is not enough to know that the 
 creditor was thereby induced to abstain from prosecuting. 
 
 A contract perfectly good and legal in itself may become bad 
 and illegal by being connected with a previous illegal contract. 
 A man once brought an action on a covenant for payment of 
 money. But the defendant set up the defence that a contract had 
 been formerly entered into between himself and the plaintiff, by 
 the terms of which the plaintiff was to sell him some land lor 
 the illegal purpose of being sold by lottery; and he said that the 
 deed on which the plaintiff was now suing him was a security 
 for the purchase-money of that land. The judges considered 
 that this plea was an answer to the plaintiff's claim. "It is 
 clear," they said, "that the covenant was given for payment of 
 the purchase-money. It springs from and is a creature of the 
 illegal agrement, and, as the law would not enforce the original 
 illegal contract, so neither will it allow the parties to enforce a 
 security for the purchase-money, which by the original bargain 
 was tainted with illegality [n). 
 
 Money paid for an illegal purpose may be recovered back any 
 time before the illegal purpose has been carried out (o); but not 
 afterwards, because then the parties are in pari delicto, and the 
 maxim mclior est conditio possidentis applies. " The true test," it 
 was said in a case where a man tried unsuccessfully to get bank- 
 note he had given a brothel-house keeper as a security for a debt 
 for wines and suppers at the brothel (p), "fur determining 
 whether or not the plaintiff and the defendant were in pari delicto, 
 is by considering whether the plaintiff could make out his case 
 otherwise than through the medium and by the aid of the illegal 
 transaction to which he was himself a party." So in Simpson v. 
 Bloss (q) the plaintiff had bet 25 guineas with a Captain Brograve 
 that a mare named Glaucina would win the Epsom Stakes, and 
 the defendant agreed to contribute to the extent of 10 guineas. 
 Glaucina won, and, in the expectation of getting the whole*25 
 guineas from the Captain, the plaintiff paid the defendant his ](J 
 guineas. Unfortunately. Brograve immediately afterwards died; 
 
 O) 10 Q. B. D. 572, following D. 291 . and Wilson v. Strugnell, 
 
 Ward v. Lloyd, 7 Scott, N. R. 
 499; and see Rourke v. Mealv, 
 41 L. T., N. S. 168. 
 
 (») Fisher v. Bridges, 3 E. & B. 
 642; and see Jennings v. Ham- 
 mond, 9 Q. B. D. 225. 
 
 (o) Taylor v. Bowers, 1 Q. B. 
 
 7 Q. B. D, 548. But see Herman 
 v. Jeuchner, L. J., 54 Q. B. 340. 
 
 (p) Taylor v. Chester, L. R. 4 
 Q. B. 309", and Herman v. Jeuch- 
 ner, 15 Q. B. D. 561. 
 
 (g) 7 Taunt. 246.
 
 ILLEGAL CONTRACTS. 12-J 
 
 and the plaintiff never received the money. It -was held that ho 
 was not entitled to recover the 10 guineas he had prematurely 
 paid away, because his claim to do so was too much mixed up 
 with the illegal transaction in which he and the defendant and 
 Brograve had been jointly engaged. 
 
 When it is doubtful whether a contract is legal or illegal, the 
 presumption of law w in fovour of its being legal (r). 
 
 Closely connected with the present subject is the doctrine of Ultra vires. 
 ultra vires. That is the name given to those contracts which, 
 being beyond the purposes of its existence, a corporation has no 
 power to make, and which are therefore void. Thus, it has been 
 held ultra vires for a railway company to work coal mines (s), to 
 trade with a line of steamers to a foreign port (t), or to take land 
 merely for the purpose of selling it again at a profit (u). A lead- 
 ing case on ultra vires is Ashbury Railway Carriage Co. v. Riche(.r), Ashbury 
 where the directors of a company, whose objects, as stated in the Railway Car- 
 Memorandum of Association, were chiefly (though not altogether) t>- j 
 confined to making and dealing in railway plant, agreed to pur- 
 chase a concession for making a railway in a foreign country. 
 "A statutory corporation," said Lord Selborne in that case, 
 "created by Act of Parliament for a particular purpose is limited 
 as to all its powers by the purposes of its incorporation as defined 
 in that Act.. The present, and all other companies incorporated 
 by virtue of the Companies Act of 1862, appear to me to be statu- 
 tory corporations within this principle. The Memorandum of 
 Association is under that Act their fundamental and (except in 
 certain specified particulars) their unalterable law ; and they are 
 incorporated only for the objects and purposes expressed in that 
 memorandum." But in the later case of Attorney-General v. r^ ne *«._ 
 Great Eastern Railway Company (y), where it was held not ultra Gen. v. The 
 vires for one railway company to agree to supply another with G. E. K..C01. 
 rolling stock, it was said that, while the doctrine of ultra vires as 
 explained in Ashbury Railway Waggon Co. v. Riche is to be main- 
 tained, it is to be applied reasonably, so that whatever is fairly 
 incidental to those things which the Legislature has authorized 
 by an Act of Parliament ought not (unless expressly prohibited) 
 to be held as ultra vires. So, in a case decided about the same 
 time as that just referred to. it has been held that the directors 
 of a joint stock bank, the deed of which gives them extensive 
 powers to carry on the business of bankers, and to act as may 
 appear to them best calculated to promote the interest of the 
 bank, have power, when the formation of another company is of 
 
 (r) Lewis v. Davison, 4 M & («■) Carington v. Wycombe 
 
 W. 654. Ry. Co., L. R. 3 Ch. 377. 
 
 0) Eccles. Comm. v. N. E. (.r) L. R. 7 H. L. 653, and see 
 
 Ry. Co., 4 Ch. Div. 845. Baroness Wenlock v. River Dee 
 
 (t) Colman v. East. Counties Company, 10 App. Ca. 354. 
 
 Ry. Co., 10 Beav. 1. (y) 5 App. Ca. 473. 
 10 COMMON LAW.
 
 12G 
 
 ILLEGAL CONTRACTS. 
 
 importance to the bank, to guarantee the payment of interest on 
 debentures of that company issued for the purpose of forming 
 it (z). So, too, the directors of a company may be justified un- 
 der their general powers of management in giving gratuities to 
 their workmen as a reward for, or incentive to, extraexertion (a). 
 The recent cases of The Yorkshire Railway Waggon Com- 
 pany v. Maclure (b) and Blackburn Building Society v. Cunliffe, 
 Brooks & Co. (c), may also be referred to on this subject. 
 
 Immorality. 
 
 [52.] PEARCE v. BROOKS. 
 
 [L. R. 1 Ex. 213 (1866).] 
 
 A coach-builder who knows a woman to be a prosti- 
 tute cannot recover for the price of a miniature broug- 
 ham which he lets her have on credit, and which he is 
 well aware she is going to use as part of her display to 
 attract men. 
 
 Cannan v. In deciding this case the court followed Cannan v. Bryce (d), 
 
 Bryce. where it was held that money lent and applied by the borrower 
 
 for the purpose of settling losses on illegal stock-jobbing transac- 
 tions, to which the lender was no party, could not be recovered 
 back by him. 
 Llovd r. There is a case of Lloyd v. Johnson (e) which may be thought 
 
 Johnson. to some extent to conflict with the Reading case. The action was 
 
 brought by a laundress against a woman of the town for the wash- 
 ing of a variety of dresses and some gentlemen's nightcaps, the 
 plaintiff being well aware of the use to which the latter were 
 put. It was held, nevertheless, that the plaintiff was entitled to 
 recover. "This unfortunate woman," said Buller, J., "must 
 have clean linen ; and it is impossible for the court to take into 
 consideration which of these articles were used for an improper 
 purpose and which were not." 
 
 To defeat the plaintiff's claim in an action of this kind, when 
 
 (z) In re West of England 
 Bank, 14 Ch. Div. 317. 
 
 («) Hampson v. Price's Can- 
 dle Co., W. N. 1876, p. 158. 
 
 {b) 51 L. J. Ch. 857. 
 
 (c) 22 Ch. D. 61. 
 
 (d) 3 B. & Aid. 179. 
 (?) 1 B. & P. 340.
 
 IMMORALITY. TJ7 
 
 he knew the purpose his goods were going to he put to, it is not 
 necessary to show that he looked expressly to the profits of th< 
 prostitution for payment. 
 
 A recent case in Ireland (/) well shows how severely the law /;,. turpi 
 regards this kind of immorality. The action was by a servant causa* Won 
 girl against a man who had had carnal knowledge of her with oritur actio. 
 her consent, but without her knowing that he had got a bad 
 venereal disease. This disease he communicated to her. In an 
 action as for an assault, it was held that, arising as it did ex turpi 
 causa, it could not be maintained. It is not obvious, however, 
 how this decision can be reconciled with the cases of Reg. v. 
 Bennett (g) and Reg. v. Sinclair (/<), where, under similar circum- 
 stances, it was held that the man might be convicted of an inde- 
 cent assault, or of inflicting actual bodily harm on the principle 
 that fraud vitiates consent. But the judgment of Fitzgerald. J., 
 even though the student may not agree with him, will well re- 
 pay perusal. 
 
 The principles above stated apply equally to all contracts hav- 
 ing an immoral tendency. In Foplettr. Stockdale (t) it was held 
 that the printer of an immoral and libellous work called the "The Me- 
 41 Memoirs of Harriette Wilson" could not maintain an action for nioirsof Har- 
 iris bill againstthe publisher who employed him. "Everyone," nel ^ Wil- 
 said Best, C.J., who gives his aid to such a work, though as a 
 servant, is responsible for the mischief of it." In Fores v. Obscene car- 
 Johnes (k) the defendant had told the plaintiff, a printseller in icatures. 
 Piccadilly, to send him "all the caricature prints that had ever 
 been published." The plaintiff accordingly sent a large quan- 
 tity, but the defendant refused to receive them, on the ground 
 that the collection contained several prints of obscene and im- 
 moral subjects. "For prints," said Lawrence, J., "whose ob- 
 jects are general satire or ridicule of prevailing fashions or man- 
 ners, I think the plaintiff may recover; but I cannot permit him 
 to do so for such whose tendency is immoral or obscene; nor for 
 such as are libels on individuals, and for which the plaintiff 
 might have been rendered criminally answerable for a libel." 
 
 {f) Hegarty v. Shine, Ir. L. (A) 13 Cox, 28. 
 
 R., vol. 2, p. 273. U) R. & M. 337. 
 
 (g) 4 F. & F. 1105. (*•) 4 Esp. 96.
 
 128 
 
 CONTRACTS IMPEDING ADMINISTRATION OF LAW. 
 
 Contracts Impeding Administration of the Law. 
 
 [53.] SCOTT r. AVERY. 
 
 [5 H. L. C. 811 (1855).] 
 
 This was an action by a gentleman whose ship had 
 gone to the mermaids against a Newcastle Insurance 
 Association of which both plaintiff and defendant were 
 members. The defendants relied on one of the rules of 
 their association (which the plaintiff as a member had, 
 of course, bound himself to observe) providing that no 
 member should bring an action on a policy till certain 
 arbitrators had ascertained the amount that ought to be 
 paid. In answer to that objection, the plaintiff con- 
 tended that an agreement which ousts the superior 
 courts of their jurisdiction is illegal and void, and that 
 the rule relied on by the defendants was of such a 
 nature. 
 
 This view, however, did not prevail. Judgment was 
 given for the defendants on the ground that the contract 
 did not oust the superior courts of their jurisdiction, but 
 only rendered it a condition precedent to an action that 
 the amount to be recovered should be first ascertained by 
 the persons specified. 
 
 General rule. 
 
 Action for 
 breach. 
 
 Gommon 
 Daw Proce- 
 dure. 
 
 By the common law an agreement between private parties to 
 refer disputes to arbitration, to the exclusion of the jurisdiction 
 of the ordinary courts, is, generally speaking, inoperative, as be- 
 ing avoidable on grounds of public policy. But although, as a 
 rule, such an agreement will not avail to oust the courts of their 
 jurisdiction, and so to prevent an injured party from seeking re- 
 dress in the ordinary way, yet it is so far valid that an action 
 may be successfully maintained for the breach of it. The prac- 
 tical effect of the common law rule is not, however, very consid- 
 erable, inasmuch as the Legislature has virtually rendered such 
 an agreement capable of being enforced. It is provided by the 
 11th section of the Common Law Procedure Act, 1854, that if the 
 parties to any deed or instrument in writing have agreed to refer
 
 CONTRACTS IMPEDING LAW. 129 
 
 any existing or future differences to arbitration, and an action is Act 1354 
 brought notwithstanding the agreement, the court, or a judge of sec. 11. 
 the court in which the action is brought, may after appearance 
 entered by the defendant, and before plea, stay the proceedings, 
 upon being satisfied that no sufficient reason exists why the mat- 
 ters agreed to be referred cannot be or ought not to be referred, 
 and that the defendant was at the time of the suit, and still is, 
 ready to join in the arbitration. And, as may well be supposed, 
 the discretion thus given to the court is usually exercised to 
 compel the reference to arbitration, except in the presence of 
 special circumstance which would render such compulsion in- 
 equitable. Thus, in a case (/) where fraud is charged, the court No arbitra- 
 will in general refuse to send the dispute to arbitration if the tion where 
 party charged with the fraud desires a public inquiry. But i 
 when the objection to arbitration is raised by the party charging 
 the fraud, the court will not necessarily accede to it, and, in- 
 deed, will never do so unless a primd facie case of fraud is 
 proved. 
 
 We have, too, seen from the leading case that, although a con- 
 tract to refer is in general voidable, it is quite open to the parties 
 to impose a condition precedent to the right of action; as, for ex- 
 ample, that the amount of damages shall be ascertained by arbi- 
 tration, or, as in the case of an ordinary building contract, that 
 the builder is only to be paid if the architect or engineer certi- Architect's 
 fies that the work has been properly done. When such a condi- certificate 
 tion precedent is imposed by the agreement of the parties, no condition 
 action, of course, lies until the condition upon which it may be V 
 brought has been duly performed (hi). 
 
 The extent of the decision in Scott v. Avery may be well illus- 
 trated by comparing the two cases of Dawson v. Fitzgerald (n) Dawson v. 
 and Babbage v. Coulburn (0). In the former, a lessee had cove- Fitzgerald, 
 nanted with his lessor that he would keep such a number only 
 ot hares and rabbits as would do no injury to the crops, and that 
 in case he kept such a number as should injure the crops, he 
 would pay a fair and reasonable compensation, the amount of 
 such compensation, in case of difference, to be referred to arbi- 
 tration. The lessor having brought an action for breach of cove- 
 nant, it was held that the covenant to refer the amount of compensa- 
 tion ivas a collateral and distinct covenant from that to pay for the 
 damage done, and, therefore, that the action teas maintainable al- 
 though ther e ] l(t (l been no arbitration. 
 
 We see, then, that the lessor might sue on the covenant to pay 
 compensation, leaving the lessee to pursue one of two courses — eith- 
 er to bring an action for not referring, or to apply under the section 
 of the Common Law Procedure Act above quoted. If, however, 
 the court had come to the conclusion that, on the true construc- 
 
 (/) Russell v. Russell, L. R. Q. B. D. 563. 
 
 1 Ch. D. 471. (n) L. R. 1 Ex. D. 257. 
 
 (m) Edwards v. Aberavon (0) L. R. 9 Q. B. D. 235. 
 Mut. Ship. Ins. Com., L. R. 1
 
 130 
 
 CONTRACTS IMPEDING LAW. 
 
 Babbage 
 v. Coulhurn: 
 
 tion of the agreement, it amounted only to a simple covenant to 
 pay such damages as should be ascertained by an arbitrator, no ac- 
 tion would have lain till he had so ascertained them. And now 
 let us compare with this decision the very recent case of Bahbage 
 v. Coulhurn. There, by a written agreement, the tenant of a fur- 
 nished house agreed at the expiration of the term to deliver up 
 possession of the house and furniture in good order, and in the 
 event of loss, damage, or breakage, to make good or pay for the 
 same, the amount of such payment, if disputed, to be settled by 
 arbitration. It was held that the settlement of this amount by 
 arbitration was a condition precedent to the right of the land- 
 lord to bring an action in respect of the dilapidations. As was 
 observed by Huddleston, B., "The question in all these cases is 
 whether or not there are separate and independent covenants: a 
 covenant that an act shall or shall not be done, and a covenant 
 to refer. Here the defendant agreed to deliver up the furniture 
 in a certain condition, and agreed, not independently to refer, 
 but to deliver up the furniture and pay any sum awarded by 
 the valuers." 
 
 It must be observed that in many cases the real question be- 
 tween the parties to an agreement containing an arbitration 
 clause is whether the matter in dispute is within or without the 
 terms of this clause. This generally is a question for the arbi- 
 trator himself, and not for the court. In an application on a 
 summons for compulsory reference under the provisions of the 
 Common Law Procedure Act, Lord Selborne observed (p): "It 
 struok me throughout that the endeavours of the appellants has 
 been to require this court to do the very thing which the arbi- 
 trators ought to do — that is to say, to look into the whole mat- 
 ter, to construe the instrument, and to decide whether the thing 
 which is complained of is inside or outside the agreement." 
 The Legislature has, for public purposes, established certain 
 Societies, &c. exceptions to the general rule that agreements between private 
 parties cannot oust the jurisdiction of the courts, and has, in 
 some instances, made arbitration obligatory by Act of Parlia- 
 ment. The most notable examples are the statutory provisions 
 for reference to arbitration in the case of friendly and building 
 societies, and the compulsory references under the Railway Com- 
 panies Arbitration Act. Some statutes provide that certain dis- 
 putes shall be settled by arbitration, and give the court power 
 to stay proceedings in an action, "upon being satisfied that no 
 sufficient reason exists why the matter cannot be or ought not to 
 be referred to arbitration." In such cases, the burden (q) lies on 
 the plaintiff to show some sufficient reason why the dispute 
 should not be so referred. 
 
 Friendly 
 
 (p) Willesford v. Watson, L. 
 R. 8 Ch. Ap., at p. 477, but see 
 Piercy v. Young, L. R. 14 Ch. 
 
 D. 200. 
 
 (q) Hodgson v. Railway Pass. 
 Ass. Co., 9 Q. B. D. 188.
 
 RESTRAINT OE TU.1JJI*. 131 
 
 Restraint of Trade. 
 
 MITCHEL v. REYNOLDS. [54.] 
 
 [1 P. Wms. 181 (1711).] 
 
 Leading eastwards from the Gray's Inn Road, is, or 
 till recently was, a street called Liquorpond Street. In 
 that street, something like 200 years ago, there dwelt a 
 prosperous baker. So prosperous was he that he baked 
 himself a fortune and retired on it into private life. 
 But before retiring he sold his business to the plaintiff, 
 and executed a bond in which he undertook not to carry 
 on the business of a baker in the parish of St. Andrew, 
 Holborn, for five years, under a penalty of £50. The 
 baker did not know his own mind. Retirement did not 
 suit him. His fingers were everlastingly itching to be 
 in the pudding, and the end of it was that long before 
 the five years were over he was baking away as hard as 
 ever, and in the aforesaid parish too. But he had to 
 pay Mitehel the £50. 
 
 A contract imposing an absolute restraint of trade, no matter for 
 how short a time, is void as being contrary to public policy. »But 
 a contract in ■partial restraint of trade may be good. Partial re- 
 
 To make such a contract good, two conditions must be com- straint good 
 plied with :— if reasonable 
 
 (1.) There must be a consideration ; considera- 
 
 and this is necessary even though the contract is under seal. tiou. 
 
 (2. ) Tlie restraint must be a reasonable one ; 
 that is to say, it must not be greater than such as to afford a fair 
 protection to the interest of the party in whose favour it is sub- 
 mitted to. 
 
 The reasonableness of a restraint differs according to trades 
 and professions; whether any particular contract is reasonable or 
 not, being a question of law for the court. Contracts that a solici- „ ,. .. 
 tor shall not practise " in London or within 150 miles " (r) or 
 
 (r) Bunn v. Guy, 4 East, 190, business within ten miles of 
 
 and see Nicoll v. Beere, 53 L. Charing Cross for three years 
 
 T. N. S. 659, where an agree- was held reasonable and bind- 
 
 ment by a tailor not to carry on ing.
 
 13L' 
 
 RESTRAINT OF TRADE. 
 
 Horse-hair 
 
 manufac- 
 1 urer. 
 Milkman. 
 Surgeon. 
 
 Publisher. 
 
 Dentist. 
 
 Contract 
 may be 
 partly good 
 and partly 
 bad. 
 
 Roussillon v, 
 Roussillon. 
 
 Pearson v. 
 Pearson. 
 
 (in another case) " in any part of Great Britain " (s) ; that a horse- 
 hair manufacturer shall not trade "within 200 miles of Birming- 
 ham " (t); that a milkman shall not sell milk "within five miles 
 from Northampton Square in the county of Middlesex " (w); that 
 a surgeon shall not practise on his own account within seven 
 miles ot a country town (x), and that a publisher shall not carry 
 on the trade within 150 miles of the General Post-Office, Lon- 
 don (y), have been held to be valid contracts in partial restraint 
 of trade. On the other hand, an agreement that a dentist — "a 
 moderately skilful dentist" — should abstain from practising 
 within 100 miles of York was held void, as the distance was 
 greater than was necessary to protect the interest of the person 
 with whom he had contracted (z). 
 
 A contract in restraint of trade may be partly good and partly 
 bad. Thus, in Mallan v. May (a), the defendant was engaged as 
 an assistant to the plaintiffs, who were dentists, and promised 
 that, when he left them, he would not practise as a dentist in 
 London or in any other place in England or Scotland where they 
 might have been practising. This covenant was held good as to 
 London (" London " being held to be the city of London), but bad 
 as to all the other places. So in a case (b) where a person bound 
 himself not to carry on the trade of a perfumer, toyman, or hair 
 merchant within the cities of London or Westminster, or within the 
 distance of 600 miles, it was held that the badness of the restraint 
 as to the 600 miles radius would not vitiate its goodness as to 
 London or Westminster. 
 
 In all these cases the distance is measured, not by the nearest 
 convenient route, but as the crow flies (c). 
 
 It is to be remarked that if the restraint is reasonable as to 
 space, it does not matter for how long a time the restraint is im- 
 posed. Until recently it was thought that, if the area was unlim- 
 ited, a covenant in restraint of trade was on the face ot it bad ; 
 and that was stated to be the law in the first edition of this work. 
 Since then, however, Roussillon v. Roussillon (d) has been decid- 
 ed ; and that case disposes of the old view, showing that the 
 whole thing is a question of reasonableness, each case depending 
 on its own circumstances. 
 
 With regard to the right of the vendor of a good will to set up 
 a new business and deal with his old customers, the student should 
 
 (s) Whittaker v. Howe, 3 391. 
 
 Beav. 383. (z) Horner v. Graves, 7 Bing. 
 
 (t) Harms c. Parsons, 32 Beav. 735. 
 
 328. («) 11 M. & W. 653. 
 
 (m) Proctor v. Sargent, 2 M. (5) Price v. Green, 16 M. & 
 
 & G. 20. W. 346. 
 
 (x) Sainter v. Ferguson, 7 C. (c) Mouflet v. Cole, L. R. 8 
 
 B. 716. Ex. 32. 
 
 (y) Tallis v. Tallis, 1 E. & B. ^d) 14 Ch. D. 351.
 
 RESTRAINT OF MARRIAGE. 133 
 
 refer to Pearson v. Pearson (e) where (dissentiente Lindley, L. J.), 
 the case of Labouehere v. Dawson (/) was overruled in favour of 
 greater freedom of solicitation." 
 
 Combinations in restraint of trade, whether of masters or of 
 men, are at common law illegal. The great case on the subject 
 is Hilton v. Eckersley (g), where a bond entered into by a num- Hilton v 
 berofWigan mill-owners, who agreed to decide the times, wages, Eckersley. 
 &c, of all their workmen according to the resolutions of a ma- 
 jority of themselves, was held void. But it has been held that 
 an agreement to parcel out among the parties to it the stevedor- 
 ing business of a port, and so to prevent competition among the 
 parties and to keep up the price of the work, is not necessarily 
 invalid if carried into effect by proper means (h). : 'It is per- 
 fectly lawful," said the court, in another case (i), '"for the own- 
 ers of three quarries to agree that they w r ill sell their commodi- 
 ties upon terms suitable to themselves, and which they approve 
 of; and although they know that the purchaser is going to sup- 
 ply, or offer to supply the Corporation of Birmingham with the 
 commodity, that does not in the least restrict their right to deal 
 inter se, nor does such dealing deserve to be characterised as a con- 
 spiracy. There is nothing illegal in the owners of commodities 
 agreeing that they will sell as between themselves at a certain 
 price, leaving one of them to make any other profit that he can." 
 Moreover, the "Trade Union Act, 1871" (k), provides (sec. 3) Trade Union 
 that "the purposes of any trade union shall not, by reason merely Act 1871. 
 that they are in restraint of trade, be unlawful so as to render 
 void or voidable any agreement or trust. " Section 4, however, 
 specifies certain exceptions. . , 
 
 As to market bye laws, see Strike v. Collins, 34 W. R. 459. 
 
 Restraint of Marriage. 
 
 LOWE v. PEERS. [55.] 
 
 [ 4 Burr. 2225 (1768).] 
 
 Mr. Newsham Peers was fool enough to sign, seal 
 and deliver a document to this purport: — 
 
 " I do hereby promise Mrs. Catherine Lowe that I mill 
 
 (e) 27 Ch. D. 145. (h) Collins v. Locke, 41 L. T., 
 
 (f) L. R. 13 Eq. 322. N. S. 292. 
 
 ((/) 6 E. & B. 67, and see Mo- (1) Jones v. North, L. R. 19 
 gul Steamship Co. v. McGregor, Eq. 426. 
 15 Q. B. D. 476. (fc) 34 & 35 Vict, c. 31.
 
 134 
 
 RESTRAINT OF MARRIAGE. 
 
 not marry with any person besides herself; if I do, I 
 agree to pay to the said Catherine Lowe £1000 within 
 three months next after I shall marry anyone else." 
 
 Ten years afterwards Peers married a girl that was 
 not Catherine Lowe. The injured lady brought an ac- 
 tion on the document, but after learned argument it was 
 resolved thaf it was void as being in restraint of mar- 
 riage. According to the view of the judges Mr. Peer's 
 promise had not been to marry Mrs. Lotve, as might 
 seem at first sight to be the case; but he had promised 
 not to marry anybody except Mrs. Lowe: so that if that 
 good widow from caprice, disinclination, or the claims 
 of conflicting engagements, refused to marry him he 
 would be compelled to be a bachelor all his days. 
 
 Reason oJ 
 
 the tiling 
 
 Keily i». 
 Monck. 
 
 A general restraint of marriage is against the policy of the law, 
 because, as Lord Chief Justice Wilmot pointed out in the leading 
 case, it encourages licentiousness, and tends to depopulation; and a 
 condition imposing such a restraint is void. So also is a condi- 
 tion amounting to a probable prohibition, as where a testator's 
 legacy to his daughter was conditional on her marrying a man 
 with an estate worth £500 a year (/). "How many particular 
 professions," said the Lord Chancellor, in giving judgment in 
 that case, "are virtually excluded by that condition? Whatman 
 of the profession of the law has set out with a clear unincumbered 
 real estate of £500 a year, or has acquired such an estate for years 
 after his entering into the profession ? How many men of the other 
 learned professions can come within the condition ? It will in 
 effect exclude 99 men in 100 of every profession, whether civil, 
 military, or ecclesiastical. It in effect excludes nearly every mer- 
 cantile man in the kingdom, for let his personal estate be never 
 so great, unless he is seised of a real estate of the ascertained de- 
 scription, he is excluded. . . . In a word, the condition 
 which this weak old man would have imposed upon his daugh- 
 ters as the price of their portions does, to my judgment, clearly 
 and unequivocally lead to a total prohibition of their marriage, 
 and as such ought to be condemned in every court of justice. And 
 1 cannot but say that the scene of enmity and discord and disunion 
 which has now prevailed for years in this family ought to teach 
 every man who hears me the mischievous folly of attempting to 
 indulge his narrowness and caprice even after he has sunk into 
 
 (/) Keily v. Monck, 3 Ridg. P. C. 205.
 
 RESTRAINT OF MARRIAGE. 135 
 
 the grave." And even if the restraint is not general, but only 
 for two or three years, there must be some good reason why the 
 contractor should be restrained from marrying during thut 
 period (m). 
 
 But, as the general rule, all conditions which do not, directly or \\ I)W j. ir 
 ■indirectly, import an absolute injunction to celibacy are valid. restraint al 
 
 Thus, conditions prohibiting marriage before twenty-one (n), or lowablc. 
 with a specified person (o), or with a Scotchman (p), or with a 
 papist (7), or with a domestic-servant (r). are not illegal. 
 
 Testators leaving young daughters frequently prohibit their Consent of 
 marriage without the consent of a trustee. This consent, however, trustee, 
 cannot be withheld corruptly or unreasonably (.s); and the mar- 
 riage will be allowed to take place if it is a proper one (/). It 
 appears to be a moot point whether conditions requiring marriage 
 with consent are broken by a first marriage without consent, so 
 as to disable a legatee, from taking upon a second marriage with 
 consent («). 
 
 Second marriages maybe restrained. A husband, for instance, Second 
 may leave his widow an annuity yhich is to cease on her marry- marriages, 
 ing again. In Allen v. Jackson (a:), a testatrix gave the income 
 of certain property to her niece (who was her adopted daughter) 
 and her niece's husband during their joint lives, and to the sur- 
 vivor during his or her life, with a proviso that if the husband 
 survived his wife and married again, the property should go over. 
 That was just what happened. The niece died; the widower 
 married again; and the gift over took effect. "The present stat 
 of the law,'' said Baggallay, J. A., "as regards conditions in re- 
 straint of the second marriage of a woman is this, that they are 
 exceptions from the general rule that conditions in restraint of 
 marriage are void, and the enunciation of that law has been 
 gradual. In the first instance, it was confined to the case of the 
 testator being a husband of the widow. In the next place, it was 
 extended to the case of a son making the will in favour of his 
 mother. That, I think, is laid down in Godolphin's Orphan's 
 Legacy. Then came the case before Vice-Chancellor Wood of 
 Newton r. Marsden (y) in which it was held to be a general ex- 
 ception by whomsoever the bequest may have been made. Now, the 
 only distinction between those cases and the present case is this — 
 that they all had reference to the second marriage of a woman, 
 and this case has reference to the second marriage of a man. 
 
 (m) Hartley v. Rice, 10 East, (r) Jenner v. Turner, 43L.T., 
 
 22. N. S. 468. 
 
 (n) Stackpole v. Beaumont, 3 (s) Dashwood v. Bulkelev, 10 
 
 Ves. 89. Ves. 245. 
 
 (0) Jervois v. Duke, 1 Vern. (t) Goldsmid v. Goldsmid, G. 
 
 19. Coop. 225. 
 
 (p) Perrin v. Lyon, 9 East, («) See Randal v. Payne, 1 
 
 170. Bro. C. C. 55, and Page v. Hay- 
 
 (q) Duggan v. Kelly, 10 Ir. ward, 2 Salk. 570. 
 
 Eq. Rep. 295. (x) 1 Ch. D. 399. 
 
 (y) 2 J. & II. 356.
 
 136 
 
 RESTRAINT OF MARRIAGE. 
 
 Marriage 
 brokerage 
 contracts. 
 
 Future 
 separation. 
 
 Immediate 
 separation. 
 
 But no case has been cited in which a condition has been held to 
 be utterly void as regards the second marriage of a man; and fol- 
 lowing the analogy of 1 the other cases there seems no reason at all 
 why a distinction should be drawn between the two sexes." 
 
 Besides making contracts in general restraint of marriage void, 
 the law exhibits its tender regard for the hallowed institution by 
 declaring equally void a marriage brokerage contract, that is, aeon- 
 tract {e.g., with a lady's maid) to bring about a particular mar- 
 riage {z). A mother once told a candidate for son-in-lawship, 
 "You shall not have my daughter, unless you will agree to release 
 all accounts." He agreed, but the agreement was held to be a 
 marriage brokerage contract, and void {a). 
 
 Similarly, a contract relating to the futiu-e separation of a mar- 
 ried couple is illegal and void, for such a state of things ought 
 not to be considered likely to come about; itought to be absent 
 from the thoughts of the blissful pair; and indeed the contract 
 itself might lead t:> a separation. But a contract relating to an 
 immediate separation is valid, for it is necessary to make the best 
 of a bad thing {b). If, however, after the separation deed has 
 been executed, the contemplated separation does not take place, 
 the deed becomes worthless and cannot be construed as a volun- 
 tary settlement (c). 
 
 A covenant not to revoke a will is not necessarily against pub- 
 lic policy as being in restraint of marriage (d). 
 
 Atheism. 
 
 [56.] COWAN v. MELBOURNE. 
 
 [L. R. 2 Ex. 230 (1867).] 
 
 Mr. Cowan was in 18G7 the secretary of the Liver- 
 pool Secular Society, and the defendant the proprietor 
 of some Assembly Rooms there. Cowan engaged the 
 rooms for a series of lectures to show that Our Lord's 
 character was defective, and his teaching erroneous; 
 
 (z) Hall ». Potter, 3 Lev. 411. 
 
 (a) Hamilton v. Mohum, 1 P. 
 Wms. 117. 
 
 (b) Hindley v. Westmeath, G 
 B. & C. 200. 
 
 (c) Bindley v. Mulloney, L. 
 R. 7 Eq. 343. 
 
 (d) Robinson v. Ommanney, 
 21 Ch. D. 780.
 
 ATHEISM. 137 
 
 and that the Bible was no moro inspired than any other 
 book. At the time the defendant let the rooms he did 
 know the nature of the lectures to be delivered, and 
 when he found out, he declined to complete his agree- 
 ment. The secularists now sued him for breach of con- 
 tract, but the court decided that the purpose for which 
 the plaintiff intended to use the rooms was illegal, and 
 the contract one which could not bo enforced at law. 
 " Christianity,'''' said Kelly, C.B , "is part and parcel of 
 the larv of the land.'" 
 
 "Christianity is part of the law of England." This is shown Christianity 
 not merely by the existence of a church establishment, but by the part of the 
 various punishments inflicted, or capable of being inflicted, on ' aw °f 
 persons who profanely curse, who break the sabbath, who use D ^ a 
 witchcraft, or who give expression to unorthodox views. In a 
 judgment in a slavery case (c), Best, J., says, "The proceedings 
 in our courts are founded upon the law of England, and that 
 law again is founded upon the law of nature, and the revealed 
 law of God. If the right sought to be enforced is inconsistent 
 with either of these, the English municipal courts cannot recog- 
 nize it.' T Notwithstanding this strong language, however, it 
 would appear that a contract for the sale of slaves entered into Slavery, 
 and to be performed in a country where that unnatural traffic is 
 lawful might be enforced in England (/). 
 
 The following summary from the Law Times of July 22nd, 1882, Blasphemy, 
 on the subject of blasphemy may be of interest : — 
 
 " Of the leading cases on this subject the earliest on record is 
 that of one Atwood, in 15 Jac. 1, who was convicted of speaking 
 words reflecting on religious preaching, viz., that it was 'but 
 prating, and the hearing of service more edifying than two hours 
 preaching.' Notice may also be made of the trial of one Taylor 
 (Vent. 293), for uttering gross blasphemies, in the course of which 
 Chief Justice Hale observed that to say religion is a cheat is to 
 dissolve all those obligations whereby civil society is preserved ; 
 that Christianity is part of the laws of England, and therefore to 
 reproach the Christian religion is to speak in subversion of the 
 law. On the same ground a conviction was sustained in the case 
 of R. v. Woolston (Str. 834), where the libel stated that Christ 
 was an imposter and fanatic, and his life and miracles were 
 turned into ridicule. In 1763, again, one Annett was convicted 
 of publishing a libel called 'The Free Inquirer,' tending to ridi- 
 
 (e) Forbes v. Cochrane, 2 B. (f) Santos r. Illidge, 6C. B., 
 
 & C. 448. N. S.
 
 138 ATHEISM. 
 
 cnle the Scriptures, and particularly the Pentateuch, by repre- 
 senting Moses as an imposter ; and a similar result followed the 
 case of R. t>. Williams, in 1797, for puhlishing Paine's 'Age of 
 Reason,' in which the authority of the Old and New Testament 
 was denied, and the prophets and Christ were ridiculed. The 
 same doctrine has heen fully recognized in other cases, one of the 
 latest, perhaps, being that of Carlile (3 B. & Aid. 161), who, in 
 1820, was sentenced to pay a fine of £1,500, to he imprisoned for 
 three years, and to find sureties for his good behaviour during life. 
 
 " But, besides the common law, the Legislature itself has made 
 certain provisions against this kind of offence. The statute 1 
 Edw. 6, c. 1, for example, enacts that persons reviling the sac- 
 rament of the Lord's Supper by contemptuous words or other- 
 wise shall suffer imprisonment. By 1 Eliz. c. 2, again, if any 
 minister shall speak anything in derogation of the Book of Com- 
 mon Prayer, he shall be punishable, as there mentioned, by im- 
 prisonment and loss of benefice. So also, by 3 Jac. 1, c. 21, who- 
 ever shall use the name of the Holy Trinity profanely or jestingly 
 in any stage-play or show, is made liable to a fine of £10. Lastly, 
 by 9 & 10 Will. 3, c. 30, it is enacted that, if any person educated 
 in, or having made profession of, the Christian religion, shall by 
 writing, teaching, or advised speaking, assert that there are more 
 gods than one, or deny the Christian religion to be true, or the 
 Scriptures to be of Divine authority, he shall, upon the first of- 
 fence, be incapable of holding any office or trust ; and on the sec- 
 ond conviction shall be for ever incapable to bring any action, or 
 to bear any office or benefice, and further shall suffer imprison- 
 ment for three years. It has been held, moreover, that the effect 
 of this enactment is cumulative, and that an offender against it 
 is still punishable at the common law." 
 
 In the recent case of Reg. v. Ramsay and Foote (</), where the 
 defendants were indicted for the publication of blasphemous li- 
 bels in a newspaper called the Freethinker, the jury were directed 
 that a blasphemous libel did not consist in an honest denial of 
 the truths of the Christian religion, but in "a wilful intention to 
 pervert, insult, and mislead others by means of licentious and 
 contumelious abuse applied to sacred subjects." The summing 
 up by Lord Coleridge, C.J., though the law may not be alto- 
 gether sound, is an admirable specimen of judicial eloquence, 
 and deserves the student's careful attention. "It is no longer 
 true," he said in the course of that address, "in the sense in 
 which it was true when these dicta were uttered, that Christian- 
 ity is part of the law of the land To base the 
 
 prosecution of a bare denial of the truth of Christianity simpLieiter 
 and per se on the ground that Christianity is part of the law of 
 the land, in the sense in which it was said to be so by Lord Hale, 
 
 (g) 48 L. T., N. S. 733.
 
 ATHEISM. 139 
 
 and Lord Raymond, and Lord Tenterden, is in my judgment a 
 mistake. It is to forget that law grows, and that, though the 
 principles of law remain unchanged, yet (and it is one of the ad- 
 vantages of the common law) their application is to be changed 
 with the changing circumstances of the times. Some persons 
 may call this retrogression ; I call it progression of human opin- 
 ion. Therefore to take up a book or a paper, to discover merely 
 that in it the truth of Christianity is denied without more, and 
 therefore to say that now a man may be indicted upon such de- 
 nial as for a blasphemous libel is, as I venture to think, abso- 
 lutely untrue. I, for one, positively refuse to lay that down as 
 law, unless it is authoritatively so declared by some tribunal I 
 am bound by " (h). 
 
 It was formerly supposed that persons not professing the Chris- Omichund r. 
 tian faith were incompetent as witnesses. In the great case of Barker. 
 Omichund v. Barker (i), however, it was settled that it was not 
 so much a belief in Christianity as a belief in a God that was re- 
 quired from a witness; and the depositions of witnesses profess- 
 ing the Gentoo religion, who were sworn according to the cere- 
 monies of their religion, taken under a Commission out of Chan- 
 cery, were admitted to be read in evidence. But many persons 
 were found who, though quite competent as witnesses, objected 
 altogether on religious grounds to taking oaths; and Acts of Par- 
 liament had to be passed relieving them from the necessity of 
 doing so, and permitting them to make affirmations instead (k). 
 These Acts, however, did not meet the case of an atheist, who, Atheists as 
 though quite willing to take an oath, might be objected to as in- witnesses, 
 competent. But now, by 32 & 33 Vict. c. 68, s. 4, such a person 
 may, " if the presiding judge is satisfied that the taking of an 
 oath would have no binding effect on his conscience," give evi- 
 dence on his making a solemn promise to tell the truth. 
 
 That "Christianity is part of the law of England " has also Jews as 
 been painfully proved by the difficulties thrown in the way of M. P. s. 
 Jews who desired to sit in the House of Commons. In Miller v. 
 Salomons (/) it was held that the words " upon the true faith of 
 a Christian " were not a mere form of swearing, but au essential 
 part of the oath of abjm-ation required by 6 Geo. III. c. 53 ; so 
 that Jews were effectually excluded from sitting and voting. In 
 1858, after a long and acrimonious struggle, a modification of the 
 
 (/() This passage, however, ince of the Legislature." 
 
 contained (as the "Law Times" ((') Willes, 538. 
 
 for May 5th, 1883, very truly (k) See 17 & 18 Vict. c. 125, 
 
 says) "a most dangerous princi- s. 20 (civil cases); and 24 & 25 
 
 pie," and shows that "judicial Vict. c. 66 (criminal cases), 
 
 claims, not to expound, but to (/) 7 Ex. 475. See also Att.- 
 
 makelawto suit the times must Gen. v. Bradlaugh, 14 Q. B. D. 
 
 be watched so as to avoid the 667, as to persons having no be- 
 
 dangerof infringing'ontheprov- lief in a Supreme Being.
 
 140 
 
 ATHEISM. 
 
 Abolition of 
 
 oaths. 
 
 Cremation. 
 
 Simony. 
 
 Mosse r. 
 Killick. 
 
 Resignation 
 
 bonds. 
 
 oath in favour cf Jews was effected (m), and since that time they 
 have frequently sat in Parliament with credit to themselves and 
 benefit to the country. "Whether the time has not now come 
 when all oaths, whether in the witness box, in Parliament, or 
 elsewhere, might advantageously be abolished, is a question that 
 has for some time occupied the attention of thoughtful men. 
 
 Cremation is illegal according to the common law, the Chris- 
 tian method of disposing of the dead being by burial (n). Inde- 
 pendently of the principle that "Christianity is part of the law 
 of England," it may be doubted whether a contract for cremat- 
 ing a dead body would not be contrary to public policy, as de- 
 stroying evidence as to the mode of death. 
 
 Simony (so called, it is said, in allusion to Simon the Sorcerer, 
 who "offered them money," Acts viii. 18) may be mentioned in 
 this connection. The leading case on the subject is Fox v. the 
 Bishop of Chester (o), where it was held that the sale of the next 
 presentation to a living (Wilmslow) was not necessarily bad un- 
 der 31 Eliz. c. 6, because the incumbent was dying. But it 
 would have been, if the purchaser had intended to present a par- 
 ticular clergyman, or if the living had been actually vacant at 
 the time of the contract. It is also simony for a clergyman 
 to buy the next presentation, and get himself presented to the 
 living {p). A recent case on simony is Mosse v. Killick (q), 
 where the plaintiff, who was the incumbent and patron of a liv- 
 ing in Yorkshire, put the rectory into repair and with the sanc- 
 tion of his bishop, let it to a tenant for a certain period. Before 
 the termination of the tenancy the plaintiff resigned the living, 
 and presented the defendant to it. The presentation was made 
 on the understanding and agreement that the defendant should, 
 in consideration of having received the benefit of the repairs, hand 
 over to the plaintiff any rent he received in respect of the ten- 
 ancy between the date of the presentation and the termination 
 of the tenancy. It was held that this was a simoniacal agree- 
 ment, and the presentation therefore void under 31 Eliz. c. 6. 
 Resignation bonds (/. e. , engagements by persons presented to liv- 
 ings to resign at some future period) were formerly void ; and 
 general resignation bonds are so still. But 9 Gen. IV. c. 94 now 
 enables a clergyman before being presented to bind himself to 
 resign in favour of some specified person. If the bond is made 
 in favour of two persons, each of them must be, either by blood 
 or marriage, a near relation of the patron. 
 
 For an interesting recent case on church rates, see Bell v. Bas- 
 sett, 52 L. J., Q. B. D., 22. 
 
 (m) 21 & 22 Vict.'ce. 48 and 49. 
 
 (n) Williams v. Williams, 46 
 L. T., N. S. 275, and see R. v. 
 Stephenson, 13 Q. B. D. 331. 
 
 (o) 6 Bing. 1. 
 
 (p) Winchcombe v. Bp. of 
 Winchester, Hob. Ifi5. 
 {q) 50 L. J. Q. B. 300.
 
 SABBATH-BREAKING. 141 
 
 Sabbatli-breakin g. 
 
 SCARFE v. MORGAN. [57.] 
 
 [4 M. & W. -210 (1838).] 
 
 The defendant was a farmer, and circulated a printed 
 card to the effect that a certain horse of his would be 
 ready to receive mares on Sundays. The stallion had a 
 good reputation, and so Scarfe (who had before had 
 dealings with Morgan) sent a mare to be covered by 
 him. Some difficulty arising about payment, Morgan 
 refused to give up the mare until all his demands were 
 satisfied, and Scarfe brought this action of trover. 
 One of Scarfe's main points was that the contract was 
 illegal as having been made on Sunday. The point, 
 however, was overruled, chiefly on the ground that the 
 farmer's allowing his stallion to cover mares ?ra.s not 
 trading in the course of his ordinary calling, to which 
 alone the statute referred. 
 
 Contracts made on Sunday are unlawful under 29 Car. 2, c. 7, Act of 
 which provides that " no tradesman, artificer, workman, labourer, Charles II. 
 or other person whatsoever shall do or exercise any worldly la- 
 hour, business, or work of their ordinary callings upon the Lord's 
 Day, or any part thereof, works of necessity and charity only ex- 
 cepted " (r), the intention of the Act being, as a judge said in 
 1826, "to advance the interests of religion, to turn a man's 
 thoughts from his worldly concerns, and to direct them to the 
 duties of piety and religion;" and his lordship adds that, "the 
 Act cannot be construed according to its spirit unless it is so 
 construed as to check the career of worldly traffic." (s). The 
 student's attention is requested to the following points: — 
 
 (1.) The words "or other person whatsoever" — on the prin- "o r other 
 ciple that general words are to be narrowed down by particular person what- 
 words which precede them — have been interpreted to mean "or soever. 
 
 (r) "Every person being of v. Durden, p. .'548. 
 the age of fourteen years or up- (s) Fennell v. Ridler, 5 B. & 
 
 wards offending in 'the premi- C. 406. See, however, Lord 
 
 ses shall for every such offence Kenyon's sensible remarks in 
 
 forfeit the sum of 5s." Crepps R. v. Younger, 5 T. K. 451. 
 11 COMMON LAW.
 
 142 
 
 SABBATH-BKEAKING. 
 
 Farmers 
 
 "Of their 
 ordinary 
 
 callings." 
 
 Must be 
 complete. 
 
 Sunday 
 shaving. 
 
 Provisions. 
 
 Sunday 
 amusements, 
 
 other person whatsoever of the ' tradesman, artificer, workman, 
 or labourer ' class." 
 
 On this construction it may he remarked that, since Scarfc v. 
 .Mori/a,i -was decided, it has been held that a farmer does not 
 come within the description "or other person whatsoever," as 
 just explained, so that the decision ought to have been in Mor- 
 gan's favour on a different ground and at an earlier period (/). 
 
 (2.) To make the contract void, it must hare been made within 
 the person's " ordinary calling." For example, while the sale of a 
 horse on Sunday by a horse-dealt r would be void, such a sale by an 
 ordinary person, though within the specified classes, would not 
 he (m). So, the hiring of a labourer by a farmer (x), a guarantee 
 given for the faithful services of a commercial traveller (y), and 
 an attorney's agreement (on which he made himself personally 
 liable) for settling the affairs of a client (.?), have been held not 
 to be vitiated by the contracts having been entered into on Sun- 
 day. 
 
 (3.) To make a contract void, it must be complete on Sunday. 
 If, however, a contract of sale {e.g., of goods of the value of £10) 
 is concluded on Sunday, it will not be purged of its taint merely 
 because the goods are not delivered, nor any part of the price 
 paid, till a subsequent week-day («). 
 
 In a case in which a Scotch^boy, apprenticed to a barber, de- 
 clined to shave his master's customers on Sunday, it has been 
 held by the House of Lords that shaving is not a " work of neces- 
 sity and charity " within the exception of the Act (b). 
 
 " It was said in the court below," remarked Lord Brougham, 
 "that unless working persons, who do not themselves shave 
 their beards, were allowed to resort to the barber's shops on Sun- 
 days, many decently disposed men would be prevented from fre- 
 quenting places of worship, and from associating Avith their fam- 
 ilies or friends, from want of personal cleanliness. But ivhy 
 should they not do the work on Saturday?" 
 
 Meat, milk, mackerel, and bread are to a great extent ex- 
 cepted from the operation of the Act. 
 
 21 Geo. III. c. 49, provides that any house opened for public 
 amusement or debate on Sunday, to which persons are admitted by 
 
 (t) R. v. Silvester, 33 L. J., 
 M. C, 79; and see Sandiman v. 
 Breach, 7 B. & C. 96, where it 
 was held that the Act did not 
 apply to a stage-coachman. 
 
 (■«) Drurv v. De La Fontaine, 
 1 Taunt. 131. 
 
 (x) R. v. Whitnash, 7 B. & 
 C. 596. 
 
 (y) Norton v. Powell, 4 M. 
 & G. 42. 
 
 (z) Peate v. Dicken, 1 G. M. 
 & R. 422. It appears to be a 
 moot point (Peate v. Dicken, 1 
 G. M. & R. 428) whether an at- 
 torney is within the statute. 
 Probably he is not. 
 
 [a) Bloxsome v. Williams, 3 
 B. & C. 232, and Simpson v. 
 Nicholls. 3 M. & W. 240. 
 
 (b) Phillips v. Innes, 4 CI. & 
 F. 234.
 
 SABBATH-BREAKING. 143 
 
 payment of money, shall be deemed a disorderly house, and the 
 keeper of it shall forfeit £200 for every Sunday it is so used. A 
 place •where sacred music is performed, and an instructive ad- 
 dress of a religious or, at all events, neutral character given, lias 
 been held not to be within the statute (c); but an aquarium, not- 
 withstanding sacred music and real fish, is (rf). 
 
 The leading case is also an authority on the law of lien, it hav- Lein— fenc- 
 ing been held that the owner of a stallion has a lien on a mare la ' ;uu ' l ,ar " 
 sent to be covered. Independently of agreement (by which a- l 
 lien may, of course, exist, or be dispensed with where it would 
 otherwise exist), liens in law are of two kinds, particular andgt u- 
 cral. 
 
 If I am a watchmaker, and you send me your watch to mend, 
 the right that I have to keep it till you pay for its mending is a 
 particular lien. Such a lien exists over all goods on which the 
 person claiming the lien has bestowed unpaid-for time and trou- 
 ble, and, very reasonably, is favoured by the law. But no charge 
 can be made for warehousing (e). 
 
 General liens are liens in respect of a general balance due. They 
 are not favoured by the law, and exist only by virtue of agree- 
 ment, or custom, or the previous dealings of the parties. Solic- 
 itors, bankers (/), wharfingers, factors, insurance brokers, and, 
 it is said, common carriers [g), have general liens. 
 
 The lien of a solicitor is important enough to deserve a word 
 of special notice. A solicitor has a lien for his professional charges Solicitor's 
 on all deeds and documents of his clients that come properly into lien, 
 his possession, and also on money recovered, litigiously or by com- 
 promise, in the cause. But, when required to produce a docu- 
 ment Under a subpoena duces tecum, he cannot refuse to do so merely 
 because it has not been paid for and he claims a lien on it (/;). 
 Nor does his lien extend to alimony pendente, lite paid over to him 
 as such, unless he holds the wife's written authority to him to 
 receive it as her agent (/). But by 23 & 24 Vict, c. 127, s. 28, 
 the court before which any proceedings come ma}' order the so- 
 licitor's costs to be made a charge on the property recovered. In 
 Boughton v. Boughton (J), it was held that a solicitor could not 
 assert his lien in such a way as to embarrass the proceedings in 
 the suit. But a solicitor by whose instrumentality a judgment 
 for payment of a sum of money is obtained is not the less enti- 
 tled to a lien on the money for his costs because he ceased to be 
 the solicitor before, the trial (/:). 
 
 (c) Baxter v. Langley, L. R. (17) Rushforth v. Hadlield. 7 
 4 C. P. 21. East, 224, and Aspinall r. Pick- 
 
 (d) Terry v. Brighton Aqua- ford, 3 Bos. & P. 44. 
 
 rium Co., L. R. 10 Q. B. 306. (h) Fowler v. Fowler, 50 L. 
 
 (e) Bruce v. Everson, 1 C. & J., Ch. 686. 
 
 E. 18. (*) Cross v. Cross, 43 L. T., N. 
 
 (/) Lond. Chart, Bank of Aus- S. 533. 
 
 traiia v. White, 4 App. Ca. 413, (j) 23 Ch. Div. 169, and see 
 
 and see Leese v. Martin, L. R. Be Galland, 53 L. T. 921. 
 
 17 Eq. 224. (k) 54 L. J. Ch. 638.
 
 144 WAGERING CONTRACTS. 
 
 Wagering Contracts. 
 
 [58.] DIGGLE v. HIGGS. 
 
 [ Ex. Div. 422 (1877).] 
 
 A couple of athletes named Sinimonite and Diggle 
 agreed to walk one another at the Higginshaw Grounds, 
 Oldham, for £200 a side, Perkins to be referee, and 
 Higgs final stakeholder and pistol firer. The match 
 duly came off, and Perkins decided that Simmonite had 
 won. This decision would seem not to have met the 
 approval of Mr. Diggle, who gave Higgs formal notice 
 not to pay over the stakes to Simmonite, and demanded 
 back his £200. In spite of this notice, Higgs paid Sim- 
 monite the whole £400, and became the defendant in 
 this action. 
 
 For the plaintiff it was contended that the agreement 
 was a wager, and therefore that he he had a right to de- 
 mand back the §wm deposited by him before it was paid 
 over. The defendant, on the other hand, said that the 
 agreement came within the proviso of 8 & 9 Vict. c. 
 109, s. 18, which rendered lawful "a subscription or 
 contribution for a sum of money to be awarded to the 
 winner of a lawful game." and his friends relied on a 
 5 C. B. 818. certain case of Batty v. Marriott, where it was held that 
 a foot-race came within the proviso. 
 
 The judges, however, overruled that case, and gave 
 Mr. Diggle back his money. 
 
 Wagers gen- At common law wagers, not being indecent, or contrary to pub- 
 erally en- ]j c policy, or hurtful to the feelings of third parties, could be en- 
 forceable at f orce( j by ac tion. But wagers as to the sex of a person (I), as to 
 •ommon law. J . . ° . . x v ' 
 
 the issue of a criminal trial (>«), as to whether an unmarried 
 
 (I) De Costa v Jones, Cowp. (m) Evans v Jones, 5 M. & 
 729. W. 77.
 
 WAGERING CONTRACTS. 145 
 
 woman would have a child hefore a certain time (»), or as to the 
 result of a parliamentary election (o), were held to be unlawful. 
 And, even when the subject-matter of a wager was quite inno- 
 cent, if it were of a very frivolous character, the judges would 
 sometimes, in an arbitrary fashion, refuse to try the case. It 
 seems also that at common law contracts by way of gaming were 
 lawful (p). But in 1845, after previous efforts in the same direr- \ c t of 184."). 
 tion, the Legislature enacted (q) "that all contracts or agreements, 
 whether by parol or in writing, by way of gaming or wagering, 
 shall be null and void ; and that no suit shall be brought pr main- 
 tained in any court of law or equity for recovering any sum of 
 money or valuable thing alleged to be won upon any wager, or 
 which shall have been deposited in the hands of any person to abide the 
 event on which any wager shall have been, made: provided always, 
 that this enactment shall not be deemed to apply to any subscrip- 
 tion or contribution, or agreement to subscribe or contribute, for 
 or towards any plate, prize, or sum of money to be awarded to 
 the winner or winners of any lawful game, sport, pastime, or ex- 
 ercise." ' The words italicised might at first sight seem fatal to a Recovering 
 claim like Diggle's; but it had been expressly held in a previous deposit, 
 case that they did not prevent a person from claiming back his 
 own deposit at any time before it was paid over to his adversary 
 and on repudiating the wager (r). 
 
 The intention of the Act, it has been held, is to strike not Wagering on 
 merely at wagering on unlawful games, but at wagering even on lawful games 
 lawful games (rr). 
 
 Hampden v. Walsh (s) is an authority to the same effect as j s \] H . WO rld 
 Diggle v. Higgs. A person named Hampden got it into his head really round? 
 that it was a popular error to suppose the world was round, and 
 advertised a challenge in the newspapers to any scientific man to 
 prove it, each side to deposit £500 to abide the issue. The chal- 
 lenge was accepted by a Mr. Wallace, and the money duly placed 
 in the hands of the defendant as stakeholder. Experiments were 
 then made on the Bedford Level Canal, and eventually, of course, 
 the referee decided in favour of rotundity. Walsh then gave 
 Hampden notice that he should pay over the money to Wallace. 
 Hampden objected, and demanded back his money, which, how- 
 ever, Walsh proceeded to pay to Wallace. In an action against 
 him for having done so, it was held that Hampden was entitled 
 to recover his deposit, the affair being a mere wager. 
 
 Although wagers are " null and void," they are not absolutely "Null and 
 
 void." 
 
 (n) Ditchburn v. Goldsmith, 4 (r) Varney v. Hickman, 5 C. 
 
 Camp. 152. B. 271. 
 
 (o) Allen v. Hearn, 1 T. R.56. (rr) Parsons v. Alexander, 5 
 
 (p) Sherbon v. Colebach, 2 E. & B. 263. 
 
 Vent, 175. (s) 1 Q. B. D. 189, and see 
 
 (q) 8 & 9 Vict. c. 109, s 18. Trimble ». Hill, 5 App. Ca.342.
 
 146 
 
 WAGERING CONTRACTS. 
 
 Beeston v. 
 Beeston. 
 
 A tip for the 
 
 Grand 
 
 National. 
 
 Buhb v. 
 Yelverton. 
 
 Stock Ex- 
 change trans- 
 actions. 
 
 illegal. Thus, if a man loses a wager, and gets another to pay the 
 money for him, an action lies for the recovery of the money so 
 paid [t). And so if A. requests B. to make a bet for him with C. 
 on a particular horse, and then, after B. has done so, the horse 
 loses, B. may, notwithstanding the statute, recover from A. the 
 money he has had to pay C. («)• In Beeston v. Beeston (x) it 
 appeared that the plaintiff had paid the defendant money to in- 
 vest for him in betting on horse-races. The right horses won, and 
 the defendent gave the plaintiff a cheque, which was afterwards 
 dishonoured. In an action on the cheque the defence was raised 
 that it was an attempt to enforce a contract prohibited by statute. 
 It was held, however, that betting on horse-races was not illegal 
 in the sense of tainting any transaction connected with it. 
 Beeston v. Beeston (x) was distinguished in the later case of 
 Higginson v. Simpson (z). There the plaintiff was a tipster, and 
 gave the defendant "Regal" as the probable winner of the Grand 
 National. It was agreed between them that the plaintiff should 
 have £2 on "Regal" at 25 to 1 against the horse for that race ; 
 that is to say, that if the defendant backed "Regal" for the 
 Grand National, and the horse won, the plaintiff was to have £50 
 out of the defendant's winnings, but if the horse lost, the plain- 
 tiff was to pay the defendant £2. Accordingly, the defendant 
 backed " Regal," and it won. Ungrateful for his tip, however, 
 he refused to pay the plaintiff the £50; and it was held that the 
 money could not be recovered by action because the agreement 
 was void within 8 & 9 Vict. c. 109, s. 18. So also money lent 
 for the purpose of gaming cannot be recovered back (a). Whether 
 a bond given simply to secure a racing debt is valid or not, ap- 
 pears to be a doubtful point. In the well known case of Bubb 
 r. Yelverton [b) it was unnecessary to decide that question, be- 
 cause, as Lord Romilly, M.R., said, the bond was given "not to 
 pay racing debts, but to avoid the consequenees of not having paid 
 them.'" Though 8 & 9 Vict. c. 109, s. 18, does not expressly men- 
 tion or allude to Stock Exchange transactions, it has been decided 
 that agreements between buyers and sellers of shares and stocks 
 to pay or receive the differences between their prices on one day 
 and their prices on another day are gaming and wagering trans- 
 actions within the meaning of the statute (c). But in Thackerj*. 
 Hardy the statute was held not to be a good answer to the claim of 
 a broker, employed by the defendant to speculate for him on the 
 Stock Exchange, for commission and an indemnity, the agreement 
 Billing, 
 
 (/) Rosewarne v. Billing, 15 
 
 C. B., N. S. 322, and see Read 
 v. Anderson, 13 Q. B. D. 779, 
 and Bridges v. Savage, 15 Q. B. 
 
 D. 363. 
 
 (u) Lvnch v. Godwin. 
 (.»■) 1 Ex. D. 13. See also 
 Seymour v. Bridge, 14 Q. B. D. 
 
 4(33, and Perry v. Barnett, 15 Q. 
 B. D. 388. 
 
 (s) 2 C. P. D. 76. 
 
 (a) McKinnell v. Robinson, 3 
 M. & W. 434. 
 
 (&) L. R. 9 Eq. 471. 
 
 (c) Grizewood v. Blane, 11 C. 
 B., 526.
 
 IMPOSSIBLE CONTRACTS. 147 
 
 being that the plaintiff should himself, as principal, enter into 
 real contracts of purchase and sale with jobbers (d). 
 
 The Betting Houses Act, 1€53 (e), makes it unlawful to keep I j,-t t i n <^ 
 or use any "house, office, room, or other place " for betting In houses. 
 Shaw v. Morley (/) it was held that a wooden structure, an- Shaw p. 
 roofed, on the Doncaster racecourse was an "office" and a "place" * iorlev * 
 within the meaning of the statute. So a stool and lug umbrella 
 kept up rain or no rain is a "place" (g); and so even is a small 
 moveable box (h). 
 
 The Betting Act, 1874 (i) is supplementary to the Aci of 1853, 
 and is confined to such bets as are mentioned in the earlier Act. 
 For this reason it was held in Cox v. Andrews (k), that it did Dot 
 apply to advertisements offering information for the purpose of 
 bets not to be made in any house, office, or place kept for thai 
 purpose. 
 
 Lotteries are prohibited by 10 & 11 Will. III., c. 17, and other Lotteries. 
 statutes, and declared to be public nuisances (/). By 42 Geo. 
 III., c. 119, s. 2, it is made an offence to keep any office or place 
 to exercise any lottery not authorized by Parliament. A man 
 who erected a tent at Darlington, and sold packets of tea con- 
 taining coupons for prizes, was held to have broken this stat- 
 ute (m). But Art Union lotteries, constituted as provided by 9 
 & 10 Vict, c. 48, are allowable. 
 
 The Vagrant Act Amendment Act, 1873 (?t), imposes penalties Gaming in 
 on persons gaming, &c, in public places. A railway carriage public places 
 while travelling on its journey is "an opeu and public place to 
 which the public have or are permitted to have access" within 
 the Act (o). 
 
 Impossible Contracts. 
 
 TAYLOR v. CALDWELL. 
 [3 B. &S. 826 (1863).] 
 
 In 1861 Mr. Caldwell agreed to let Mr. Tayler have 
 the Surrey Gardens and Music Hall at Newington for 
 four specified summer nights, on which Mr. Taylor pro- 
 
 (d) 4 Q. B. D. 685. (i) 37 Vict. c. 15. 
 
 (e) 16 & 17 Vict. c. 119, and (/.) 12 Q. B. D. 126. 
 
 see 37 Vict, c. 15, and 36 & 37 (/) See Allport r. Nutt, 1 C. 
 
 Vict. c. 38. B. 974. 
 
 (/) L. R. 3 Ex. 137. (m) Taylor v. Smetten, 11 Q. 
 
 (g) Bows v. Fen wick, L. R. 9 B. D. 207. 
 
 C. P. 339, and Snow v. mil, 14 (n) 3<i & :'.7 Vict. c. 38, s. 3. 
 
 Q. B. D. 588. . (o) Laugrish v. Archer, 10 Q. 
 
 (h) Gallaway v. Maries, 8 Q. B. D. 44. 
 B. D. 275. 
 
 [59.]
 
 148 
 
 IMPOSSIBLE CONTRACTS. 
 
 Why did he 
 
 promise ab- 
 solutely? 
 
 Frost or in- 
 fectious dis- 
 ease. 
 
 Paradine v. 
 Jane. 
 
 Life becom- 
 ing uninsur- 
 able 
 
 Jumping 
 over the 
 moon. 
 
 posed to entertain the British public with bands, ballets, 
 aquatic sports, fireworks, and other festivities. Unfor- 
 tunately, before these summer nights arrived, Mr. Cald- 
 well's premises were destroyed by an accidental fire. 
 Mr. Taylor had been put to great expense in preparing 
 for his entertainment, and ho submitted that, as the 
 contract was an absolute one, Mr. Caldwell must pay 
 damages for the breach. It was held, however, that 
 the parties must be taken to have contracted on the basis 
 of the continued existence of the premises, arjd as they 
 had been burnt down without the fault of either party, 
 both parties were excused. 
 
 " You shouldn't promise what you can't perform" is a remon- 
 strance as just as it is familiar. A man is not obliged to enter 
 into an absolute contract. He may provide for as many contin- 
 gencies as he pleases; and if he chooses to promise absolutely when 
 it is in his power to promise conditionally, he has only himself to 
 blame if the consequences are unpleasant. If, for instance, the 
 charterer of a ship agrees to put a cargo on board at a particular 
 port, he contracts absolutely, and does not protect himself against 
 the chance of a frost [p), or the prevalence of an infectious dis- 
 ease (q), preventing the fulfilment of his undertaking. So, a 
 tenant is not discharged from his covenant to pay rent, or to re- 
 pair, by the premises being accidentally destroyed, or even by 
 his being kept out of possession by the King's enemies (r). In 
 August, 1873, on the occasion of his marriage, a gentleman con- 
 tracted with trustees to insure his life on or before July 2nd, 
 1875. Before that date arrived, however, his life became unin- 
 surable, and he died without having performed his contract. It 
 was held that the breaking down of his health, being what all of 
 us are liable to, was no excuse, and that the trustees were enti- 
 tled to rank as creditors (s). 
 
 But sometimes the contract is physically impossible at the time 
 of its making, and both the parties know it. Such a contract is void. 
 There is no intention to perform it on the one side, no expectation 
 that it will be performed on the other. An undertaking to jump 
 
 (/>) Kearon v. Pearson, 7 H. 
 & N. 386, and see Kay v. Field, 
 47 L. T., N. S. 423. 
 
 (</) Barker v. Hodgson, 3 M. 
 & S. 267; see also Jones v. St. 
 John's College, L. R. 6 Q. B. 
 115, Thorn v. London, 1 App. 
 Ca. 120, and Landorf v. Hamil- 
 ton (the rat case), 1G Q. B. D. 
 
 629. 
 
 (r) Paradine v. Jane, Aleyn. 
 26, and see Manchester Bonded 
 Warehouse Co. v. Carr, 5 C. P. 
 D. 507, and Marshall v. Scho- 
 field, 47 L. T., N. S. 406. 
 
 (s) Arthur v. Wynne, 14 Ch. 
 D. 603, and see Gibbons v. 
 Chambers, 1 C. & E. 577.
 
 IMPOSSIBLE CONTRACTS. 149 
 
 over the moon, or to run from the Temple to Scarborough and 
 back in five minutes, would probably be held void for impossi- 
 bility. If, however, the thing contracted for, however unlikely 
 
 that any one should accomplish it, is just conceivably possible, 
 the contract may be good; e.g., if a man agrees to make a Hying 
 machine that will get across the Atlantic in two hours (t). 
 
 A man, moreover, may warrant the acts of third persons, or 
 even a natural event possible in itself. Thus, it has been said 
 that a covenant that it shall rain to-morrow might be good («). 
 
 Sometimes the contract is impossible at the time of its mak- Ignorance of 
 ing, but the parties do not know it. For example, there may be what lias 
 bargaining going on about a cargo supposed to be on the voyage, happened, 
 but which, as it happens, has been already sold by reason of sea 
 damage. Such a contract is void, being subject to the implied 
 condition that the cargo, as such, is still in existence (.r). So. 
 the sale of a life annuity is impliedly conditional on the annui- 
 tant being alive at the time of the sale (y). 
 
 When the fulfilment of a contract for personal services is pre- Too ill to 
 vented by the act of God, the promisor is excused, unless it clear- t'ome. 
 ly appears from the terms of the contract that he was to be liable 
 whatever happened {z). A lecturer, for instance, who did not 
 turn up as expected, would have a sufficient legal excuse in a 
 sudden illness. So of an author who had agreed to write a book. 
 But he ought to give the earliest notice that is reasonably practi- 
 cable. In such a case as this, the privilege of rescinding the 
 contract is not merely that of the invalided performer, but also 
 that of the party engaging him who may decline to have a man 
 who is too ill to do his work properly («). So, too, if a master 
 dies during the service, the servant has no remedy against his 
 executors (b). 
 
 The intervention of an Act of Parliament will also excuse the Station not 
 performance of a promise, because parties must be considered as wanted, 
 contracting with reference to the existing state of the law, and 
 lex non cogit ael impossibilia. In the leading case on this point a 
 lessor had convenanted that no buildings should be erected in a 
 paddock fronting the demised premises, somewhere in Camber- 
 well, and then a railway, with its compulsory powers, came 
 along and stuck a station there (c). 
 
 As already stated, Taylor v. Caldwell was decided on the ground 
 
 (0 Clifford v. Watts, L. R. 5 son, L. R. 6 Ex. 269. 
 C. P. 588. (a) Poussard v. Spiers, 1 Q. 
 
 (u) Per Maule, J., in Can- B. D. 410. 
 ham v. Barry, 15 C. D. 619. (b) Farrow v. Wilson, L. R. 
 
 (.r) Couturier v. Hastie, 5 H. 4 C. P. 744. 
 L. C. 673. (c) Baily v. De Crespigny, L. 
 
 (y) Strickland v. Turner, 7 E. 4 Q. B. 180; and see Brew- 
 Ex. 208. ster v. Kitchell, 1 Salk. 198, 
 
 (z) Boast v. Firth, L. R. 4 C. and Mayor of Berwick v. Os- 
 
 P. 1, and Robinson v. Davi- wald, 3 E. & B. 665.
 
 150 IMPOSSIBLE CONTRACTS. 
 
 that when the performance depends on the continued existence 
 of the thing, a condition is implied that the impossibility aris- 
 ing from its accidental destruction shall excuse performance. It 
 has been followed in two important cases with which the student 
 Appleby v. should make himself acquainted. In Appleby v. Meyers (</) the 
 Meyers. plaintiff had agreed with the defendant to put up some machin- 
 
 ery on his premises to be paid for when finished. In the course 
 of the work, premises, machinery, and everything were de- 
 stroyed by fire. It was held that both parties were excused 
 from further performance, and that no liability accrued on either 
 Potatoes from 8 ide. In Howell v. Coupland (e) a Lincolnshire farmer had 
 a particular agreed to sell to a potato merchant 200 tons of potatoes grown on 
 bit ot land. a particular piece of land belonging to the former. Before the 
 time for performance arrived, the farmer's potatoes were at- 
 tacked by the potato blight, and he was only able to deliver 
 about 80 tons. It was held that an action to recover damages 
 for the non-delivery of the residue could not be maintained. 
 
 Negotiable Instruments are Transferable like 
 Cash on Delivery. 
 
 [68.] MILLER v. RACE. 
 
 [1 BUEE, 452 (1791).] 
 
 One Decernoer night, about the middle of the last 
 century, the mail from London to the West was at- 
 tacked by highwaymen. Amongst other things taken 
 was a banknote for £21 10s., which a Mr. Finney of 
 London was sending down by the general post to a 
 client in Oxfordshire. The next day the news of the 
 disaster reached the ears of Mr. Finney, who rushed 
 off immediately to the bank and stopped payment of 
 the note. 
 
 A few days afterwards, the plaintiff, who had come 
 by the note quite honestly and had given value for it, 
 presented it at the bank; but Mr. Eace, one of the 
 bank clerks, not only refused to cash it, but even to 
 
 (d) L. E. 2 C. P. 651. (e) 1 Q. B. D. 258.
 
 NEGOTIABLE INSTRUMENTS. 151 
 
 hand it back. Miller therefore sued him, and suc- 
 ceeded in making hiui cash it. 
 
 The leading cases engrafts on the well known rule that no one JjTemo dot 
 
 can acquire a title to a chattel personal from a man who has himself QW>d non 
 
 no title to it an exception in favour of all negotiable instruments. '" " ' 
 
 Whenever a man receives one of these instruments bond fide, and Exception in 
 
 having given valuable consideration for it, he is not to lose his favour of 
 
 money because the document's history is of an unsatisfactory '""?' Ia 
 , T1 . , , . . „ . instruments. 
 
 Character. It, however, he receives it mala fide, it is different. ... 
 
 ' . • , • ' nless taken 
 
 A good-for-nothing cleric received some notes and money for his w „/„ //,/,■ 
 
 master, and then went and laid them out with the defendant in 
 illegal insurances of lottery tickets. The defendant knew that 
 lie was doing wrong ; so the clerk's master was allowed, on prov- 
 ing their identity, to recover them (/). But mala fides, in such 
 cases, must always be distinctly proved ; it will not be sufficient 
 to show that- the defendant was guilty of an astonishing amount 
 of carelessness in taking the instrument, if he did not take it 
 dishonestly (g). 
 
 A negotiable instrument has been defined as an instrument which Various 
 upon delivery transfers the legal right to the property secured ]>;/ it to kinds of ne- 
 
 the person to whom it is delivered. The most familiar negotiable S otiaDle in " 
 
 , ... , .,. _ ° st rumen ts. 
 
 instruments are bills and notes (/<). To these may be added gov- 
 ernment bonds, dock warrants, King of Prussia bonds, and all 
 instruments to which by the law merchant or by statute the 
 above incident attaches. It is doubtful whether in England any 
 instrument can become negotiable except by the law merchant How negoti- 
 
 or by statute. In 1872 a company called the Credit Foncier of able ms, . ru - 
 
 ; r j men! arises. 
 
 Englaud issued a debenture for £100 payable to bearer. By and Crouch and 
 
 by, and after a robbery, this apparently negotiable instrument his worthless 
 
 got into the hands of a Mr. Crouch, who sued on it; but it was debenture. 
 
 held that the company were not bound to pay it, as they had no 
 
 power to issue a negotiable instrument of a novel kind (i). The 
 
 scrip, however, of a foreign government issued by it on negotiat- g C rip of 
 
 'ing a loan, which is by the custom of all the stock markets in foreign 
 
 Europe negotiable, is so regarded by English law (A) ; and soare government. 
 
 scrip certificates of a banking company which have for many years ' ' ' ''' ( f 1 ' a " 
 
 i ^ i j . . cates of 
 
 been treated as negotiable instruments by bankers, discounters, bankingcom- 
 anil people on the Stock Exchange (l). pans. 
 
 An instrument may be negotiable, though it has not been is- 
 sued as such by the party who made it ; e.g.. where the acceptor 
 tore up a bill with the intention of cancelling it, and the drawer 
 
 (/) Clark v. Shee, Cowp. 199. of England, L. R. 8 Q. B. 374. 
 
 [g) Goodman v. Harvey, 4 Ad. (A-) Goodwin v. Robarta, 1 
 
 & & 170. A pp. Ca. 470. 
 
 (/«) As to these see the Bills (/) Rumball v. Metr. Bank, 2 
 
 of Exchange Act, 1882. Q. B. D. 194. • 
 
 (z) Crouch v. Credit Foncier
 
 152 
 
 NEGOTIABLE INSTRUMENTS. 
 
 Resticting 
 negotiability 
 
 Sale in mar- 
 ket overt. 
 
 Effect of 
 prosecuting 
 thief to con- 
 viction. 
 
 surreptitiously pasted the pieces together, and endorsed it 
 away («i). It is otherwise, however, if the instrument be issued 
 iti complete (n). 
 
 Negotiability may sometimes be restricted ; e.g., a cheque may 
 be crossed (o), or a bill specially endorsed (p). 
 
 Another exception to the rule that no one can acquire a title 
 to a chattel personal from a person who has himSelf no title to it 
 exists in the case of a sale in market overt. A purchaser in mar- 
 ket overt may keep stolen property (not being ahorse), and snap 
 his fingers at the true owner. If, however, the owner prosecutes 
 the thief and gets him convicted, the tables are turned, an Act 
 of Parliament (q) expressly providing that in that case the owner 
 shall have his goods restored to him ; and, indeed he may then 
 maintain trover for them without waiting for any writ of restitu- 
 tion (r). But the construction placed on this Act is that it ap- 
 plies only to cases in which possession has been obtained without the 
 property passing (s). Moreover, no action lies against an inno- 
 cent purchaser of stolen goods in market overt who disposes of 
 the goods before conviction of the thief (t). The innocent pur- 
 chaser, it has been recently held, cannot, in answer to a claim 
 for the goods by the owner after the thief has been duly con- 
 victed, counterclaim for the cost of their keep while in his pos- 
 session (it). But by 30 & 31 Vict. c. 35, s. 9, the court which 
 tries the thief may, on his conviction, direct that money found 
 on him shall be paid to the innocent buyer in compensation for 
 his having to give up the property. 
 
 In the country the privilege of market overt applies only to 
 those particular days and places which may happen to be speci- 
 fied by charter or prescription. But in London (i. e., the city) it 
 applies to every week-day (between sunrise and sunset) and 
 every shop. The sale, however, must be of such articles as are 
 usually dealt in at the shop. Everything, too, must, be open 
 and above board ; any attempt at concealment (e.g., by the shut- 
 ters being up, or by the sale taking place at the back of the shop) 
 vitiating the privilege. Nor is the purchaser protected if it is 
 Crown property that he buys, or if he is aware of the defect of 
 title ; or, in short, if he is guilty of any fraud in the transaction. 
 It is probable that the privilege of market overt covers not only 
 
 (m) Ingham v. Primrose, 7 C. 
 B., N. S. 82. 
 
 (») Baxendale v. Bennett, ) 
 Q. B. D. 525. 
 
 (o) 39 & 40 Vict. c. 81. 
 
 (/)) Sigournev v. Llovd, 8 B. 
 & C. 622. 
 
 (q) 24 & 25 Vict. c. 96. s. 100. 
 
 (r) Scattergood v. Sylvester, 
 15 Q. B. 506, and R. r.London, 
 L. E. 4 Q. B. 371. See also De- 
 
 laney v. Wallis, 15 Cox 525. 
 
 (.si Lindsay p. Cundy, 3 App. 
 C'a. 459 : Movce p. Xewington, 
 4 Q. B. D. 32 ; and see Babcock 
 V. Lawson, 5 Q. B. D. 394, and 
 Chichester v. Hill, 48 L. T., 
 N. S. 364. 
 
 (t) Horwood v. Smith, 2 T. 
 R. 750. 
 
 (u) Walker v. Matthews, 8 
 Q. B. D. 109.
 
 NEGOTIABLE INSTRUMENTS. 153 
 
 the sale from shopkeeper to stranger, but also (at all events when 
 such sales are customary) that from stranger to shopkeeper (x). 
 
 The property in a horse, even though sold in market overt, II.. i 
 does not puss to the buyer, unless certain ibrmalties prescribed by 
 some ancient statutes (y) have been complied, with. To entitle 
 the buyer to anything approaching security, the horse must have 
 been exposed in the open market for a whole hour, between 10 a. 
 m. and sunset. Then buyer, seller and horse must all go together 
 before the book-keeper of the market, who will enter in his note- 
 book every 'kind of particular about all three. But even when 
 the buyer has undergone this ordeal, and paid the money, he can 
 hardly call himself the owner of the horse; because, any time 
 within six months of its being stolen, the owner of a horse may 
 put in his claim before a magistrate in the district where it is 
 found, and if he can within forty days get two witnesses to come 
 and swear it is his, may have it back again on tending to the per- 
 son in possession of it the sum he paid in markert overt. 
 
 It is to be observed that goods stolen and sold out of market Retakine 
 overt may be retaken wherever found, though no step has been stolen prop- 
 taken, or is intended to be taken, to prosecute the thief (z). So city, 
 also if goods stolen are pawned, the owner may maintain trover 
 against the pawnbroker (a). 
 
 It is provided by the 3Gth section of the Bills of Exchange Act, Negotiation 
 1882 (6), that— of overdue or 
 
 "(1.) Where a bill is negotiable in its origin it continues to be , -ii 
 negotiable until it has been (a.) restrictively indorsed or (b.) dis- 
 charged by payment or otherwise. 
 
 (2.) Where an overdue bill is negotiated, it can only be nego- 
 tiated subject to any defect of title affecting it at its maturity, 
 and thenceforward no person who takes it can acquire or give a 
 better title than that which the person from whom he took it had- 
 
 (3.) A bill payable on demand is deemed to be overdue within 
 the meaning and for the purposes, of this section, when it ap- 
 pears on the face of it to have been in circulation for an unreason- 
 able length of time. What is an unreasonable length of time for « 
 this purpose is a question of fact. 
 
 (4.) Except where an endorsement bears date after the ma- 
 turity of the bill, every negotiation is prima facte deemed to have 
 been effected before the bill was overdue. 
 
 (5.) Where a bill which is not overdue has been dishonoured 
 
 (.r) See Taylor v. Chambers, (z) Peer v. Humphrey, 2 Ad. 
 
 Cro. Jac.; Lyons v. De Pass, 11 & E. 495. 
 
 A. & E. 326; and Crane v. Lond. (a) Packer v. Gillies, 2 Camp. 
 
 Dock Co., 5 B. & S. 313. 336; and see 35 & 36 Vict. c. 93 
 
 (y) 2 & 3 P. & M. c. 7, and (Pawnbrokers Act, 1872), s. 36. 
 
 31 Eliz. c. 12. (b) 45 & 46 Vict. c. 61.
 
 154 NEGOTIABLE INSTRUMENTS. 
 
 any person who takes it with notice of the dishonour takes it 
 subject to any defect of title attaching thereto at the time of dis- 
 honour, but nothing in this sub-section shall affect the rights of 
 a holder in due course." 
 
 Notice of Dishonour. 
 
 [62.] BICKERDIKE v. BOLLMAN. 
 
 [ 1 T. R. 405 (1786).] 
 
 The effect of this case (the narrative of which is too 
 complicated to be worth giving) is this: — Spendfast be- 
 ing hard rip for money, and knowing the weak good- 
 nature of his friend Lighthead, asks him to accept a 
 bill of exchange for him, assuring him that he will 
 never be called on to pay it, and that it is really only a 
 formality. Lighthead consents, and though he gets no 
 consideration whatever for it, accepts a bill drawn on 
 him by Spendfast. The bill finally gets into the hands 
 of Thriftman as holder, and he presents it to Light- 
 head for payment. Lighthead, of course, dishonours 
 the bill, and uses strong language. Such being the state 
 of the parties, Bickerdike v. Bollman decides that Thrift- 
 man, the_ holder, can sue Spendfast, the drawer, with- 
 out having previously given him notice that Lighthead, 
 the acceptor, has dishonoured the bill, the reason being 
 that the drawer never had any effects in the hands of 
 the drawee, and therefore could not lose anything by 
 notice not being given him. 
 
 The necessity of cases on this subject has been happily super- 
 seded by codification, the 47th, 48th, 49th and 50th sections of 
 the Bills of Exchange Act, 1882 (c), being as follows: — 
 Dishonour by "47. — (1.) A bill is dishonoured by non-payment (a.) when it 
 
 non-pay- i s duly presented for payment and payment is refused or cannot 
 
 ment. 
 
 (c) 45 &46 Vict, c. 61.
 
 NOTICE OP DISHONOUR. 155 
 
 be obtained, or (b.) when presentment is excused and the bill is 
 overdue and unpaid. 
 
 (2.) Subject to the provisions of 1 his Act, when a bill is dis- 
 honoured by non-payment, an immediate right of recourse againsl 
 the drawer and indorsers accrues to the holder. 
 
 48. Subject to the provisions of this Act, when a hill lias been Notice of 
 dishonoured by non-acceptance or by non-payment, notice of dis- dishonour 
 
 honour must be given to the drawer and each indorser, and any . 
 
 ° • non-notice, 
 
 drawer or indorser to whom such notice is not given is dis- 
 charged ; Provided that — 
 
 (1.) Where a bill is dishonoured by non-acceptance, and notice 
 of dishonour is not given, the rights of a holder in due course sub- 
 sequent to the omission shall not be prejudiced by the omission. 
 
 (2.) Where a bill is dishonoured by non-acceptance and due 
 notice of dishonour is given, it shall not be necessary to give no- 
 tice of a subsequent dishonour by non-payment unless the bill 
 shall in the meantime have been accepted. 
 
 49. Notice of dishonour in order to be valid and effectual must Rules as to 
 
 be given in accordance with the following rules: — notice oi 
 
 dishonour. 
 (1.) The notice must be given by or on behalf of the holder, or 
 
 by or on behalf of an indorser Avho, at the time of giving it, is 
 
 himself liable on the bill. 
 
 (2.) Notice of dishonour may be given by an agent either in 
 his own name, or in the name of any party entitled to give no- 
 tice, whether that party be his principal or not. 
 
 (3.) Where the notice is given by or on behalf of the holder, 
 it enures for the benefit of all subsequent holders and all prior 
 indorsers w T ho have a right of recourse against the party to whom 
 it is given. 
 
 (4.) Where notice is given by or on behalf of an indorser en- 
 titled to give notice as hereinbefore provided, it enures for the 
 benefit of the holder and all indorsers subsequent to the party to 
 whom notice is given. 
 
 (5.) The notice may be given in writing or by personal com- 
 munication, and may be given in any terms which sufficiently 
 identify the bill, and intimate that the bill has been dishonoured 
 by non-acceptance or non-payment. 
 
 (6.) The return of a dishonoured bill to the drawer or an in- 
 dorser is, in point of form, deemed a sufficient notice of dishonour. 
 
 (7.) A written notice need not be signed, and an insufficient 
 written notice may be supplemented and validated by verbal 
 communication. A misdescription of the bill shall not vitiate 
 notice unless the party to whom the notice is given is in fact 
 misled thereby. 
 
 (8.) Where notice of dishonour is required to be given to any
 
 156 NOTICE OF DISHONOUR. 
 
 person, it may bo given either to the party himself, or to his 
 agent in that behalf. 
 
 (9.) Where the drawer or indorser is dead, and the party giv- 
 ing notice knows it, the notice must be given to a personal repre- 
 sentative if such there he, and with the exercise of reasonable 
 diligence he can be found. 
 
 (10.) "Where the drawer or indorser is bankrupt, notice maybe 
 given either to the party himself or to the trustee. 
 
 (11.) "Where there are two or more drawers or indorsers -who 
 are not partners notice must be given To each of them, unless 
 one of them has authority to receive such notice for the others. 
 
 (12.) The notice may be given as soon as the bill is dishonoured 
 and must be given within a reasonable time thereafter. 
 
 In the absence of special circumstance notice is not deemed to 
 have been given within a reasonable time, unless — 
 
 (fl.) Where the person giving and the person to receive notice 
 reside in the same place, the notice is given or sent off in time to 
 reach the latter on the day after the dishonour of the bill. 
 
 (/>.) Where the person giving and the person to receive notice 
 reside in different places, the notice is sent off on the day after 
 the dishonour of the bill, if there be a post at a convenient hour 
 on that day, and if there be no such post on that day then by the 
 next post thereafter. 
 
 (13.) Where a bill when dishonoured is in the hands of an 
 agent, he may either himself give notice to the parties liable on 
 the bill, or he may give notice to his principal. If he give no- 
 tice to his principal, he must do so within the same time as if he 
 were the holder, and the principal upon receipt of such notice 
 has himself the same time for giving notice as if the agent had 
 been an independent holder. 
 
 (14.) Where a party to a bill receives due notice of dishonour, 
 he has after the receipt of such notice the same period of time for 
 » giving notice to antecedent parties that the holder has after the 
 dishonour. 
 
 (15. ) Where a notice of dishonour is duly addressed and posted, 
 the sender is deemed to have given due notice of dishonour, not- 
 withstanding any miscarriage by the post office. 
 Excuses for 50. — (1.) Delay in giving notice of dishonour is excused where 
 non-notice the delay is caused by circumstances beyond the control of the 
 and delay. party giving notice, and not imputable to his default, miscon- 
 duct, or negligence. When the cause of delay ceases to operate 
 the notice must be given with reasonable diligence. 
 
 (2.) Notice of dishonour is dispensed with — 
 
 (a.) When, after the exercise cf reasonable diligence, notice as 
 required by this Act cannot be given to or does not reach the 
 drawer or indorser sought to be charged:
 
 MATERIAL ALTERATION. 157 
 
 (b.) By waiver express or implied. Notice of dishonour may 
 be waived before the time of giving notice has arrived, or after 
 the omission to give due notice : 
 
 (c.) As regards the drawer in the following cases, namely, (1) 
 where drawer and drawee are the same person, (2) where the 
 drawee is a fictitious person or a person not having capacity to 
 contract, (3) where the drawer is the person to whom the bill is 
 presented for payment, (4) where the drawee or acceptor is as be- 
 tween himself and the drawer under no obligation to accept or 
 pay the bill, (5) where the drawer has countermanded payment. 
 
 (d. ) As regards the indorser in the following cases, namely, (1) 
 where the drawee is a fictitious person or a person not having 
 capacity to contract and the endorser was aware of the fact at the 
 time he indorsed the bill, (2) where the indorser is the person to 
 whom the bill is presented for payment, (3) where the bill was 
 accepted or made for his accommodation." 
 
 Material Alteration Vitiates Written Instru- 
 ment. 
 
 MASTER v. MILLER. [62.] 
 
 [2 H. Bl. 141 (1791).] 
 
 On March 26th, 1788, Peel and Co., of Manchester, 
 drew a bill for £1000 on Miller, payable three months 
 after date to Wilkinson and Cooke. This bill they de- 
 livered to Wilkinson and Cooke, and Miller afterwards 
 accepted it. Wilkinson and Cooke then indorsed it for 
 value to the plaintiff. But before doing so, they quietly 
 made one or two little alterations with the object of 
 improving the document. March 26th they changed 
 into March 20th; and they stuck June 23rd at the top 
 to indicate that the bill would become due on that day. 
 These alterations, being to accelerate payment and un- 
 authorised, were held to vitiate the instrument. 
 
 12 COMMON LAW.
 
 15S 
 
 MATERIAL ALTERATION. 
 
 [63.] 
 
 Effect of 
 alteration. 
 
 Pigot's case. 
 
 Material 
 alteration 
 vitiates. 
 Suffell v. 
 Bank of 
 England. 
 
 Warrington 
 v. Early. 
 
 ALDOUS r. CORNWELL. 
 [L. K. 3 Q. B. 543 (1868).] 
 
 In November, 1865, Mr. Cornwell gave his promis- 
 sory-note to this effect — " I promise to pay Mr. Edward 
 Aldous the sum of £125." By and by Mr. Aldous 
 asked Mr. Cornwell to pay the £125. Mr. Cornwell 
 was about to do so when he noticed that two words had 
 been added to the note he had made, so that it now ran 
 "On demand I promise to pay, &c." Mr. Cornwell on 
 this refused to pay, pleading that he " did not make the 
 note as alleged." The result of an action, however, 
 was that he was compelled to pay as the alteration was 
 an immaterial one, all notes which express no time for 
 payment being payable "on demand." 
 
 The law looks with great disfavour on the alteration of writ- 
 ten instruments. Even when the alteration is made with the 
 consent of both parties (unless it he merely to correct a mistake 
 and render the document what it has all along been intended to 
 be,) there must be a new stamp just as if it were a new con- 
 tract (d). 
 
 One of the earliest, and for a long time the most important, 
 cases on alteration without consent is PigoVs ease (e). That case 
 referred only to deeds; but its principle was afterwards extended 
 to bills of exchange, guarantees, bought and sold notes, charter- 
 parties, and other instruments. But the part of the second reso- 
 lution of Pigot's case which says that " if the obligee himself alters 
 the deed, although it is in tvords not material, yet the deed is void," is 
 not now law. 
 
 A material alteration, no matter by whom, vitiates a written 
 instrument. Thus in the recent case of Suffell v. Bank of Eng- 
 land (/) it was held that the alteration of a Bank of England note 
 by erasing the number upon it and substituting another was a 
 material alteration which avoided the instrument, so that a bond 
 fide holder for value could not afterwards maintain an action on it. 
 In "Warrington v. Early (g) it appeared that three persons had made 
 their joint and several promissory note with lawful interest.'' 1 
 The holder persuaded two of them, in the absence of the third, 
 
 (d) Reed v. Deere, 7 B. & C. 
 26*1, and Bowman r. Nichol, 5 
 T. R. 537. 
 
 (e) 11 Co. 26. 
 
 (/) 51 L. J. Q 
 see Leeds Bank r. 
 Q. B. D. 84. 
 
 (g) 2 E. & B. 763 
 
 B. 401, and 
 Walker, 11
 
 MATERIAL ALTERATION. 159 
 
 to add in the corner, by way of explanation, "interest at 6 per 
 cent." It was held that he could not recover against the third 
 party, as the note had been materially altered. In Vance v. Vance v. 
 Lowther (h) a dishonest clerk had absconded with a cheque drawn Lowther. 
 in his master's favour. After altering the date from .March -2nd < 
 
 to March 26th, he passed it to the plaintiff for value. It was 
 held that the alteration was material, and invalidated the cheque, 
 so that the plaintiff, in spite of having acted prudently and up- 
 rightly, could not successfully sue the drawer. In this ease it 
 was also held that materiality is a question of law, and that, in de- 
 ciding it, reference is to be had to the contract alone, and not to 
 the surrounding circumstances. But alterations by accident (e.g., Mistake or 
 by a mischievous little boy tearing off a seal, or by rats eating it) accident. 
 or mistake do not affect the liability (;'). 
 
 The instrument may be given in evidence for a collateral pur- Collateral 
 pose, notwithstanding a material alteration. A landlord once purpose, 
 brought an action against a tenant for not cultivating according 
 to the terms of the written agreement between them. The writ- 
 ten agreement when produced was found to be stained with an 
 erasure in the habendum, the term of years having been altered 
 from seven to fourteen. As a matter of fact, the defendant was 
 a yearly tenant under a parol agreement which incorporated only 
 so much of the written instrument as was applicable to a yearly 
 holding, so that it did not matter whether the written agreement 
 said 14 or 140 years. For this reason the instrument was admit- 
 ted in evidence to prove the terms on which the tenant held the 
 land (k). 
 
 With regard to the alteration of bills of exchange, it is to be j^ c i f 1H82. 
 observed that the law has recently been codified. The G3rd and 
 G4th sections of the Bills of Exchange Act, 1882 (<), are as fol- 
 lows: — 
 
 "63.— (1.) Where a bill is intentionally cancelled by the holder Cancellation 
 or his agent, and the cancellation is apparent thereon, the bill is 
 discharged. 
 
 (2.) In like manner any party liable on a bill may be dis- 
 charged by the intentional cancellation of his signature by the 
 holder or his agent. In such case any indorser who would have 
 had a right of recourse against the party whose signature is can- 
 celled is also discharged. 
 
 (3.) A cancellation made unintentionally, or under a mistake, 
 or without the authority of the holder is inoperative; but where 
 a bill or any signature thereon appears to have been cancelled the 
 burden of proof lies on the party who alleges that the cancella- 
 tion was made unintentionally, or under a mistake, or without 
 authority. 
 
 (h) 1 Ex. Div. 176, and see 402; but see Davidson v. Cooper, 
 
 Harris v. Tenpany, 1 C. &. E. 13 M. & W. 343. 
 
 65, and Pattinson v. Luckley, L. (k) Falmouth v. Roberts, 9 M. 
 
 R. 10 Ex. 330. & W. 46.0. 
 
 (i) Raper v. Birkbeck, 15 East, (7) 45 & 46 Vict. c. 61. 
 17, and Argoll v Cheney, Palm.
 
 160 MATERIAL ALTERATION. 
 
 Alteration of 64. — (1.) Where a bill or acceptance is materially altered with- 
 bill. out the assent of all parties liable on the bill, the bill is avoided 
 
 except as against a party who has himself made, authorised, or 
 assented to the alteration, and subsequent indorsers. 
 
 Provided that, Where a bill has been materially altered, but 
 the alteration is not apparent, and the bill is in the hands of a 
 holder in due course, such holder may avail himself of the bill 
 as if it had not l)een altered, and may enforce payment of it ac- 
 cording to its original teuour. 
 
 (2.) In particular the following alterations are material, namely, 
 any alteration of the date, the sum payable, the time of payment, 
 the place of payment, and, where a bill has been accepted gen- 
 erally, the addition of a place of payment without the acceptor's 
 assent." 
 
 Warranties, &c. 
 
 [64.] LOPUS v. CHANDELOR, 
 
 [2 Ceoke 2 (1603;.] 
 
 A jeweller sold a man a stone saying it was a bezoar, 
 when it was not. It was held, however, that he was not 
 liable in contract because his assertion did not amount 
 to a warranty ; nor in tort because he might have be- 
 lieved what he said. 
 
 The probabilities are that if Lopns had been a litigant of to-day 
 he would have succeeded on both points: — in contract, because 
 Mere affirma- ''every affirmation at the time of the sale of a personal chattel is 
 tion may be a warranty if it appear to have been intended as such," and 
 warranty. Chandler's assertion that the stone was a bezoar would no doubt 
 be considered sufficient; and in tort, because the fact that the de- 
 fendant was a jeweller would be damning evidence that he knew 
 one stone from another. 
 Test to be It is often a difficult matter to decide whether the seller in- 
 
 applied to tended his representation to be a warranty or not. The test to 
 determine his intention is, did he assume to assert a fact of ivhich 
 the buyer was ignorant? If he did, he warranted. Two well known 
 Power v. picture dealing cases illustrate this distinction. In one of them 
 
 Barham and ^ie seller, at the time of sale, gave the following bill of parcels: — 
 Jeudwine v. 
 
 " la " e - " Four pictures, Views in Venice, Canalctto, £160." 
 
 It was held that the jury might very well find that the words
 
 WARRANTIES. 161 
 
 imported a warranty that Canaletto had painted the pictures (m). 
 In the other case, a sea-piece and a fair had been sold, the former 
 being catalogued as by Claude Lorraine, and the latter by Ten- 
 iers. It was held that, as those artists had lived so long ago, it 
 •was impossible for anyone to be sure whether the pictures were 
 by them or not; the seller could not be taken to have asserted a 
 fact, but had merely expressed his opinion on the subject; there- 
 fore he had not warranted (n). 
 
 Difficult questions of construction frequently arise when a horse Questions of 
 is sold with a warranty. In one case the receipt ran as follows: — construct ion. 
 
 " Received of Mr. Budd £10 for a grey four-year-old colt warranted 
 sound in every respect.' 11 
 
 It was held that this warranty referred only to the soundness,, 
 and that the age was mere matter of description (o). In another 
 case the seller of a mare said "Ae never warranted, he tcouldn't 
 even warrant himself; but the mare was sound to the best of his 
 knowledge." It was held that he must be taken to have war- 
 ranted that the mare was sound to the best of his knowledge (p). 
 
 A, general warranty does not extend to obvious defects (pp). If Obvious 
 I sell you a horse warranting that it is sound and perfect in defects. 
 every respect when both of us can see it has no tail, you cannot 
 bring an action against me for breach of warranty on the ground 
 of the missing appendage. If, however, the defect, though ob- 
 vious, is yet not of a permanently injurious character, it will be 
 covered by a general warranty. A man once sold a race-horse to 
 a sporting attorney with a warranty of soundness, though the 
 horse was obviously suffering from a splint. But some splints 
 cause lameness and others do not, and, as it was uncertain what 
 would be the result in this case, the warranty was held to ex- 
 tend to it. Moreover, however obvious a defect may be, if the 
 seller agrees to deliver the horse all right at the end of a partic- 
 ular period, the warranty will include the defect (q). A person 
 who takes a horse with a warranty — it has been held in a case where 
 a man bought a horse with " an extraordinary convexity of the 
 cornea of the eye" which produced short-sightedness and made 
 the animal liable to shy,— is not bound to use extreme diligence 
 in discovering defects (r). 
 
 The seller may, of course, place limitations on the warranty he q if a 
 gives. At a horse repository, for instance, there was a notice warranty, 
 stuck up on a board to the effect that warranties given at that 
 establishment should remain in force only till twelve o'clock the 
 
 (m) Power v. Barham, 4 Ad. Ry. 124. 
 
 & E. 473. ( pp) Margetson v. Wright, 8 
 
 (n) Jeudwine v. Slade, 2 Esp. Bing. 454. 
 
 572. (q) Liddard v. Kain, 2 Bing. 
 
 (o) Budd v. Fairmaner, 8 183. 
 
 Bing. 52. (r) Holliday v. Morgan, 1 E. 
 
 (p) Wood v. Smith, 5 M. & & E. 1.
 
 162 WARRANTIES. 
 
 next day unless in the meantime the purchaser sent in a certifi- 
 cate of unsoundness. It was held that purchasers who were 
 aware of it were hound hy this notice (s). A similar condition 
 was held binding on the purchaser in the recent case of Hinoh- 
 Gliffe v. Barwick (h, where, however, there were no words limits 
 ing the duration of the warranty, but the horse was to he re- 
 turned by a particular time the next day and then tried. 
 
 What is The term " sound " in the warranty of a horse or other animal 
 
 soundness. implies the absence of any disease, or seeds of disease, which ac- 
 tually diminishes, or in its progress will diminish, its natural 
 usefulness in the work to which it would properly and ordina- 
 rily be applied («). A temporary lameness has been held to be 
 unsoundness (a); so has a cough (y). But mere badness of shape 
 is not unsoundness (s); nor is roaring, unless symptomatic of 
 disease (a). Crib-biting is not unsoundness, but vice (b). A 
 nerved horse is unsound (c). So is a chest-fouudered horse (d). 
 
 Remedies lor A breach of warranty on the sale of a specific chattel does not 
 breach of generally entitle the buyer to reject and return the article. His 
 warranty. remedy is either to sue the seller for damages, or to set off the 
 breach when an action is brought against him for the price (e). 
 If, however, the subject matter of the sale is not in existence or 
 not ascertained at the time of the contract, he may refuse to ac- 
 cept an article not in accordance wijh the warranty. To entitle 
 him, however, thus to return the goods and rescind the contract, 
 he must be careful not to make any further use of them than is 
 necessary to give them a fair trial. If the purchaser sues upon 
 the warranty, he need not return the article sold (/). See also 
 the recent case of Wagstaff v. Shorthorn Dairy Co. (ff), where 
 there was a sale of seed potatoes, and the potatoes were not up 
 to the standard of the warranty. It was held that the purchaser 
 was entitled to the difference in value between the crop actually 
 produced and the cvop that would have been produced if the 
 warranty had been complied with, if it were a reasonable thing 
 for the purchaser to plant the seed without examination. 
 
 (s) Bywater v. Richardson, 1 524. 
 
 Ad. & E. 508. (b) Scholefield v. Robb, 2 M. 
 
 {t) 5 Ex. Div. 177, and see & Rob. 210. 
 
 Gorton v. Mackintosh, 31 W. R. (c) Best t. Osborne, Ry. & 
 
 232. M. 290. 
 
 (w) Kiddell v. Burnard, 9 M. (d) Atterburyr. Fairmanner, 
 
 & W. 668. 8 Moore, 32. 
 
 (x) Elton ». Brogden, 4 Camp. (e) Street v. Blay, 2 B. & Ad. 
 
 281. 456. 
 
 (y) Bates r. Stephens, 2 M. (/) Fielder v. Starkin, 1 H. 
 
 & Rob. 157. Bl. 17, and Pateshall v. Tran- 
 
 (z) Dickinson r. Follett, 1 ter, 3 Ad. & E. 103. 
 
 M. & Rob. 299. (/) 1 C. & E. 324. 
 
 (a) Bassett v. Collis, 2 Camp.
 
 WARRANTY DURING TREATY FOR SALE. 168 
 
 Warranty must be during Treaty for Sale. 
 
 HOPKINS r. TANQUERAY. [65,] 
 
 [15 C. B. 130 (1854).] 
 
 Mr. Tanqueray advertised his horse "California" for 
 sale at Tattersall's. The day before the sale, happening 
 to go there, he found his friend Hopkins kneeling down 
 and carefully scrutinizing " California's " legs, where- 
 upon he remarked, " My dear fellow, you needn't exam- 
 ine his legs; you have nothing to look for; I assure you 
 he'sperfectly sound in every respect;" to which Hop- 
 kins replied, " If you say so, I am perfectly satisfied," 
 and immediately got up. The next day Hopkins at- 
 tended the sale, and bought the horse, having, as he 
 said, determined to do so because of Tanqueray's posi- 
 tive assurance that he was sound. There was no writ- ' 
 ten warranty, and it was admitted that when Tanque- 
 ray said the horse was sound he quite believed it was. 
 Hopkins now sought to make out that Tanqueray's as- 
 sertion on the day before the sale was equivalent to a 
 warranty. It was held, however, that that assertion 
 formed no part of the contract of sale, and therefore did 
 not amount to a warranty. 
 
 The plaintiff made no imputation of fraud here. He sued in Previous rep- 
 
 contract, not in tort, his point being that, notwithstanding the reti- resentations 
 
 cence of the auctioneer at the time the horse was put up, what can . n< ? 
 
 x r relied on as a 
 
 the defendant had said to him on the day before the sale amounted warranty 
 
 to a warranty. But a warranty must be given, if at all, at the 
 time of the sale. Representations and assertions made before it, 
 unless continuing, or bottomed in fraud, are no good (g). 
 
 So, too, a warranty given after a sale is void unless there is a "Warranty 
 new consideration ; for the first consideration is exhausted by the given after- 
 transfer of the chattel without a warranty (h). ' ' It frequently wards re- 
 
 €i u i rp s n t* \v 
 happens that persons (not lawyers) hardly consider this ; they J •iHera- 
 
 tion. 
 (g) See Ormrod v. Huth, 14 (h) Roscorla p. Thomas, 3 Q. 
 M. & W. 651. B. 234.
 
 164 
 
 WARRANTY DURING TREATY FOR SALE. 
 
 Horse deal- 
 
 < )ral repre- 
 sentations 
 cancelled by 
 written con- 
 tract. 
 
 quote all the seller or dealer says as he buttons up the cheque in 
 his pocket, as if that could in an}- way he a warranty. Some 
 dealers and horse-sellers say all sorts of things when copeing or 
 selling a horse, hut they confine themselves to puff, and never 
 commit themselves to any statement of a fact as to the subject of 
 the deal. It is not until the bargain is entirely over that they 
 comfort the buyer by statements which he fondly looks upon as 
 warranties, but which cannot be so considered" (i). "When the 
 terms of a contract have been reduced into writing, no oral rep- 
 resentation can be relied on as a -warranty. The written con- 
 tract shortens and corrects the representations, so that whatever 
 terms are not contained in the document must be struck out of 
 the transaction (k). But a mere memorandum, not intended to 
 be final, will not exclude oral evidence of a warranty. Thus, in 
 Allen t'.Pink. Allen v. Pink (I), where a paper was signed by the vendor and 
 given to the vendee containing " Bought of G. Pink, a horse for 
 the sum of £7 2s. 6</.," it was held that evidence might be given 
 of a contemporaneous warranty. " The general principle stated 
 by Mr. Byles,'' said Lord Abinger, C.B., " is quite true, that if 
 there has been a parol agreement, which is afterwards reduced 
 by the parties into writing, that writing alone must be looked to 
 to ascertain the terms of the contract. But the principle does not 
 apply here. There was no evidence of any agreement by the 
 plaintiff that the whole contract should be reduced into writing 
 by the defendant. The contract is first concluded by parol, and 
 afterwards the paper is drawn up which appears to have been 
 meant merely as a memorandum of the transaction, or an infor- 
 mal receipt for the money, not as containing the terms of the 
 contract itself." 
 
 Implied Warrant]/ of Title. 
 
 [66.] 
 
 MOKLEY r. ATTENBOROUGH. 
 [3 Exch. 500 (1849).] 
 
 The defendant in this case was the well known pawn- 
 broker of that name. A person named Poley having 
 hired a harp of Messrs. Chappell, music sellers, pledged it 
 
 (?) Lascelles on Horse War- 
 ranty (2nd ed.), p. 34. 
 
 (k) Pickering v. Dowson, 4 
 
 Taunt. 779. 
 
 (/) 4 M. & W. 140.
 
 IMPLIED WARRANTY OF TITLE. 165 
 
 with the defendant for £15 15s. on the terms that if the 
 sum advanced were not repaid within six months he 
 should be at liberty to sell it. The harp not being re- 
 deemed within the stipulated time, Attenborough sold 
 it to the plaintiff. All this came to the ears of Messrs. 
 Chappell, who got back their harp from Morley; and 
 that gentleman, to recoup himself, now brought an ac- 
 tion against the pawnbroker, alleging that the harp was 
 sold to him with an implied warranty of title. This 
 view, however, did not prevail, for the (judges decided 
 that in the absence of an express warranty all that the 
 pawnbroker asserted by his offer to sell was that the 
 thing had been pledged to him and was unredeemed, 
 not that he was the lawful owner. 
 
 The leading case (which was followed in Bagueley v. Haw- 
 ley) (m) is the chief authority for the rule that on the sale of a 
 chattel personal there is no implied warranty of title. The rule, how- Rule hardly 
 ever, may be said to be pretty well "eaten up by the excep- really exists, 
 tions" (n). For example, the sale of goods in a shop, or in a ware- 
 house, imports an implied warranty of title ; and, indeed, Mr. 
 Benjamin, in his book on the Sale of Personal Property, goes so 
 far as to state the effect of Eicholtz v. Bannister (o) (where a Man- p;..} 10 ]+ z v 
 Chester job warehouseman in his warehouse sold the plaintiff a Bannister, 
 quantity of woollen goods which he described as "a job lot just 
 received by him ") to be that "the sale of a personal chattel im- 
 plies an affirmation by the vendor that the chattel is his, and therefore 
 he warrants the title, unless it be shown by the facts and circum- 
 stances of the sale that the vendor did not intend to assert own- 
 ership, but only to transfer such interest as he might have in the 
 chattel sold" (p). The latter part of Mr. Benjamin's rule may 
 be illustrated by the sale of a forfeited pledge by a pawnbroker, o j j )V 
 who must be considered as undertaking merely that the subject pawnbroker, 
 of sale is a pledge, and is irredeemable, and that he does not know 
 of any defect of title (q). See also the recent case of Raphael v. 
 Burt (qq), where there was held to be an implied warranty of 
 title on the sale of some American bonds which turned out to 
 have been stolen. 
 
 (m) L. R. 2 C. P. 625. . ed.), p. 631. 
 
 (n) Per Lord Campbell in Sims (q) See Chapman v. Speller. 
 
 v. Marryat, 17 Q. B. 291. 14 Q. B. 621. 
 
 (o) 17 C. B., N. S. 708. (qq) 1 C. & E. 325. 
 (p) Benj. Sale of P. P. (3rd
 
 1S6 
 
 IMPLIED WARRANTIES. 
 
 Implied Warranties. 
 
 [67.] 
 
 Caveat emptor. 
 
 Particular 
 purpose. 
 
 Bigge v. 
 Parkinson. 
 
 JONES v. JUST. 
 [L. R. 3Q. B. 197 (1868).] 
 
 Jones and Co., Liverpool merchants, agreed to buy 
 from Mr. Just, a London merchant, a number of bales 
 of Manilla hemp which were expected to arrive in some 
 ships from Singapore. The hemp did arrive, but, when 
 it was examined, it was found to be so much damaged 
 that it would not pass in the market as Manilla hemp ; 
 and Jones and Co., who had paid the price before the 
 ships arrived, had to sell it at 75 per cent, of the price 
 which similar hemp would have realised if undamaged. 
 This was an action by them against the seller, who was 
 admitted to have acted quite innocently in the matter, 
 to recover the difference; and it was held that he must 
 pay it, on the ground that in every contract to supply 
 goods of a specified description, which the buyer has 
 no opportunity of inspecting, the goods must not only 
 correspond to the specified description, but must also 
 be saleable or merchantable under that description. 
 
 The maxim caveat emptor generally applies as to the quality 
 of goods sold, and, unless there is an express warranty, there 
 is none. 
 
 But a warranty is implied in the following cases: — 
 
 (1.) When goods are sold by a trader for a particular purpose of 
 which he is well aware — e.g., copper for sheathing a ship, — so 
 that the buyer necessarily trusts to the judgment or skill of the 
 seller, they must be reasonably fit for the purpose (r). 
 
 A case often referred to is Bigge v. Parkinson (s), where a pro- 
 vision dealer had undertaken to supply a troop-ship with stores 
 for a voyage to Bombay, guaranteed to pass the survey of certain 
 officers, but with no warranty of their being fit for the purpose. It 
 
 (r) Jones v. Bright, 5 Bing. 
 533, and Gray v. Cox, 4 B. & 
 
 C. 108. 
 
 (s) 7 H. & N. 955.
 
 IMPLIED WARRANTIES 167 
 
 was held however (in spite of the guarantee), that such a war- 
 ranty must be implied. 
 
 But in the case of the sale of meat in a market, which the Food, 
 buyer inspects and selects himself, there is no implied warranty 
 of fitness for human food ((). The butcher, however, might be 
 liable in tort to the customer if the bad meat made him ill (w). 
 
 The implied warranty of this class covers latent undiscoverable 
 defects (%). 
 
 (2.) When the contract is to furnish manufactured goods, they Manufaclur- 
 must be of a merchantable quality (y). cd goods. 
 
 And this is so even when the sale is by sample. Grey shirtings Mody r. 
 were delivered according to sample, but it was then discovered S 80 • 
 that 15 per cent, of china clay had been introduced into the 
 fabric, rendering it unmerchantable. The presence of the china 
 clay could not have been detected by an ordinary examination 
 of the sample; and it was therefore held that an action could be 
 maintained for breach of an implied warranty of merchantable 
 quality («). 
 
 In the absence of usage, there is an implied contract by am ami- Johnson v. 
 facturer who sells goods that they are of his own make; so that he Ray 1 ton. 
 would not be justified in supplying equally excellent articles 
 made by some other manufacturer (a). 
 
 (3.) In the case of a sale by sample, there is an implied under- Sample. 
 taking that the sample is fairly taken from the bulk. 
 
 But no further warranty (unless it would have arisen if the sale 
 had not been by sample) is implied. In the well known case ot 
 Parkinson v. Lee {b) the defendant sold the plaintiff a quantity Parkinson ft, 
 of hops by sample. The bulk fairly answered to the sample, but Lee. 
 both sample and bulk had a latent defect which made the pur- 
 chase useless to the plaintiff. It was held that there was no im- 
 plied warranty that the hops were merchantable or good for any- 
 thing. "Here," said Lawrence, J., "was a commodity offered 
 for sale, which might or might not have a latent defect. This 
 was well known in the trade; and the plaintiff might, if he 
 pleased, have provided against the risk by requiring a special 
 warranty. Instead of which, a sample was fairly taken from the 
 bulk, and he exercised his own judgment upon it." 
 
 (4.) The custom of a particular trade may raise an implied war- Custom, 
 ranty (c). 
 
 (t) Emmerton v. Matthews, 7 (z) Mody v. Gregson, L. R. 4 
 
 H. & N. 586, and Smith v. Ba- Ex. 49, and see Heilbutt v. 
 
 ker, 40 L. T., N. S. Hickson, L. R. 7 C. P. 438. 
 
 («) Burnby v. Bollett, 16 M. (a) Johnson v. Raylton, 7 Q. 
 
 & W. 644. ' B. D. 438. 
 
 (a;) Randall v. Newson, 2 Q. (b) 2 East, 314. 
 
 B. D. 102. (c) Jones v. Bowden, 4 Taunt. 
 
 (y) Laing v. Fidgeon,6Taunt. 847. 
 108.
 
 168 
 
 IMPLIED WARRANTIES. 
 
 Sale by de- 
 scription. 
 
 Trade Murks. 
 
 Black friars 
 Bridge. 
 
 Longer voy- 
 age then ex- 
 pected. 
 
 (5.) Under the circumstances of the leading case, that is to say 
 where goods are sold by description, and the buyer has not seen 
 them, there is an implied warranty, not only that they answer 
 the description, but that they are merchantable. 
 
 But it is not an implied term in the contract that the thingsold 
 shall be fit for the purpose for which it is required (<7). 
 
 (6.) By the 19th and 20th sections of the Merchandise Marks 
 Act, 1862 (e), a warranty of genuineness is to be implied from a 
 trade-mark or description. 
 
 As to implied warranties on the letting of land or houses, see 
 Smith v. Marrable, p. 114. 
 
 One of two recent cases on implied warranty may just be men- 
 tioned in passing. 
 
 In 1804 the Corporation of London wanted to take down Black- 
 friars Bridge, and build a new one. Accordingly, they prepared 
 plans and a specification, and invited tenders. A Mr. Thorn con- 
 tracted to do the work, and set about it. But when he had got 
 some way, it turned out that part of the plan, which consisted in 
 the use of caissons could not be adopted, and finally Thorn found 
 it necessary to go to law with the corporation for the loss of time 
 and trouble occasioned by the failure of the caissons. It was 
 held, however, that there was no implied warranty that the bridge 
 could be built according to the plans and specification (/). 
 
 In another case, the plaintiff, a master mariner, had agreed 
 with the defendants for a lump sum to take a certain specified 
 steam-tug of theirs, towing six barges, from Hull to the Brazils, 
 he paying the crew and providing food for all on board for seven- 
 ty days. It was held that there w r as no implied undertaking by 
 the defendants that their steam-tug was reasonably efficient for 
 the purposes of the voyage, and that the master mariner had no 
 remedy against them though it turned out that the engines of the 
 vessel were so defective that the voyage occupied a great deal 
 more time than it ought to have done (</). See also the recent 
 case of Hall v. Billingham (gg), where it was held (under 37 & 
 .38 Vict. c. 51 s. 4) that in every case of a contract for the sale of 
 a chain cable, whether for use on a British ship or not, there is 
 an implied warranty that it has been properly tested and 
 stamped. 
 
 (d) Chanter r. Hopkins, 4 M. 
 ..I- \Y. 400. and Ollivant v. Bav- 
 ley, 5 Q. B. 288. 
 \e) 25 & 20 Vict. c. 88. 
 
 (/ ) Thorn v. London, 1 App. 
 Ca. 120. 
 
 (g) Robertson v. Amazon, &c, 
 Co., 7 Q. B. D. 598. 
 
 (gg) 34 W. R. 122.
 
 WARRANTIES AND REPRESENTATIONS. 109 
 
 Warranties and Representations . 
 
 BEHN p. BUTtNESS. [68.] 
 
 [3 B. & S. 751 (1863).] 
 
 This was an action by a ship-owner against a char- 
 terer for not loading. In the charter-party the plain- 
 tiff had described himself as " owner of the good ship 
 or vessel called the Martaban, of 420 tons or there- 
 abouts, noiv in the port of Amsterdam." Unfortunately 
 the good ship the Martaban was not just then " in the 
 port of Amsterdam;" and the question was whether the 
 words were a warranty or merely a representation. It 
 was held that they were a warranty, and therefore that 
 the plaintiff had not fulfilled his part of the contract. 
 
 In the judgment in the leading case representations are defined Definition of 
 as " statements or assertions made by the one party to the other, representa- 
 before or at the time of the contract, of some matter or circum- tlons - 
 stance relating to it." Now it is clear law (h) that an action of 
 deceit will lie when the plaintiff has been induced to enter into 
 a contract by representations of the defendant which were false 
 in fact and which were also false to the knowledge of the defend- 
 ant, or, at all events, were recklessl}' made by him. But when 
 wc come to consider the case of a representation false in fact, but 
 at the same time made innocently and in good faith, the matter be- 
 comes one of very considerable difficulty. As a general rule, it 
 may perhaps be laid down that such an untrue representation 
 will not affect the validity of the contract nor give rise to any 
 cause of action whatsoever, unless it is made a condition of the What 
 contract. If it is so made a condition, the contract, being condi- amounts to a 
 tional upon its truth, cannot, of course, be enforced by the party condition, 
 from whom the untrue statement proceeded. This observation ^ 'wf^' 1 " 1 
 may be well illustrated by considering the important case of Ban- 
 nerman r. White (i), an action by a hop-grower against a hop- 
 merchant for the price of hops sold to the latter. The Burton 
 brewers, rightly or wrongly, had got it into their heads that the 
 quality of their beer had deteriorated through the emploj-ment of 
 sulphur in the cultivation of hops, and had the year before sent 
 
 (h) Seeper Jessel. M.R., Smith 27, at p. 44. 
 v. Chad wick, L. R. 20 Ch. D. (i) 10 C. B., N. S. 844.
 
 170 
 
 WARRANTIES AND REPRESENTATIONS. 
 
 Representa- 
 tion amount- 
 ing to war- 
 ranty. 
 
 Relief on 
 equitable 
 grounds. 
 
 a circular round to all the growers, saying that they wouldn't 
 buy any more hops which had had sulphur applied to them. This 
 being so, at the very commencement of the negotiations between 
 the plaintiff and the defendant, the latter asked the former if any 
 sulphur had been used, adding that, if any had, he must decline 
 to consider any offer. The plaintiff replied that none had been 
 used, and so the defendant agreed to purchase the year's crop. 
 As a matter of fact, the plaintiff had used sulphur to about five 
 acres of the hops (the whole growth being 300 acres) having done 
 so, for the purpose of trying a new machine called a sulphurator ; 
 and had afterwards mixed the sulphured and unsulphured hops 
 all up together. It may be taken that there was no fraudulent 
 intention on the part of the plaintiff. The effect of the finding 
 of the jury was that the defendant required and the plaintiff gave 
 his undertaking that no sulphur had been used. "This under- 
 taking," said Erie, C.J., in delivering the decision of the court, 
 " was a preliminary stipulation, and if it had not been given, the 
 defendant would not have gone on with the treaty which re- 
 sulted in the sale. In this sense it teas the condition upon which 
 the defendant contracted." It was held, therefore, that, as the 
 plaintiff had not fulfilled the condition, he could not enforce the 
 sale. 
 
 But it may be, too, that a representation is of such a nature 
 and made under such circumstances as to amount to a warranty. 
 And this is a very different thing from a condition in the strict 
 legal meaning of the term, although no doubt some confusion has 
 arisen from a careless interchange of the two words. A icarranty, 
 though part of the contract, is really in itself a separate and dis- 
 tinct undertaking that a particular representation shall be true, 
 and, if in the end it proves to be untrue, the remedy is for breach 
 of this agreement of warranty, so that the original contract is not 
 thereby avoided as it would be on the non-performance of a con- 
 dition. 
 
 There exists, too, a large class of cases in which relief is given 
 on equitable grounds to persons induced to enter into agreements 
 on the faith of innocent misrepresentations. These are cases in 
 which one party to the contract has, from the nature of the trans- 
 action, special and peculiar means of knowledge (k) as to the 
 subject-matter from which the other party is excluded, e.g. (I), 
 agreements for the'sale of landed property (in), or contracts for 
 Marine Insurance. In many instances of this kind the mere 
 omission to state material facts is in itself sufficient to enable the 
 deceived party to release himself from his obligation. 
 
 (k) As to ease where plaintiff 
 had means of discovering that 
 the representation was untrue, 
 see Redgrave v. Hurd, L. R. 20 
 Ch. D. 1. 
 
 (I) Phillips v. Caldcleugh. L. 
 R. 4 Q. B. 159. 
 
 (m) Prouclfoot v. Montefiore, 
 L. R. 2 Q. B. 511.
 
 NECESSARIES FOR INFANTS. 171 
 
 Necessaries for Infants. 
 
 PETERS r. FLEMING. [69.] 
 
 [6M. &W. 43 (1840).] 
 
 Mr. Fleming was one of those fast undergraduates 
 whose efforts have contributed so liberally towards the 
 settlement of the law of "necessaries" for infants. 
 During his career at Cambridge, and while under age, 
 he became indebted to a tradesman of the town for 
 rings, pins, a watch, and various other articles, which 
 were supplied to him on tick. AVhen the young man 
 came of age, the tradesman brought an action against 
 him, and, — perhaps rather to his own surprise, — got 
 his money. "The true rule," said Parke, B., "I take 
 to be this, that all such articles as are pure/?/ orna- 
 mental are not necessary and are to be rejected, be- 
 cause they cannot be requisite for anyone; and for such 
 matters, therefore, an infant cannot be made responsible. 
 But, if they are not strictly of this description, then 
 the question arises, whether they were bought for the 
 necessary use of the party in order to support himself 
 properly in the degree, state and station of life in ichich 
 he moved; if they were, for such articles the infant 
 may be responsible. 
 
 RYDER v. WOMBWELL. [70.] 
 
 [L. R. 4 Ex. 32 (1868).] 
 
 Mr. Wombwell was the younger son of a deceased 
 Yorkshire baronet, and " moved in what is called the 
 highest society." During his minority he had £500 
 a year, and when he came of age would be entitled to
 
 172 NECESSARIES FOR INFANTS. 
 
 a lump sum of £20,000. He was a friend of the Mar- 
 quis of Hastings, and occasionally rode races for him. 
 While yet a minor, he ordered of Kyder and Co., the 
 jewellers, a silver gilt goblet of the value of £15 15s., 
 and a pair of studs of the value of £25. The studs 
 were for his own wearing, but the goblet was intended, 
 with an inscription, as a present to the Marquis. To 
 an action for the price of these articles, Wombwell set 
 up the defence of " infancy," to which the reply was 
 " necessaries." 
 
 At first the judges thought the studs were " necessa- 
 ries," though not the goblet; but it was finally re- 
 solved that neither the studs nor the goblet were neces- 
 saries. 
 
 A person under the age of twenty-one is an " infant," and the 
 law so far takes pity on his "imbecility and indiscretion" (n) 
 that his contracts will be binding on him only if they are neces- 
 sary and for his benefit. 
 
 When a tradesman brings an action against a young man for 
 the price of goods supplied to him, it is a common, if not a very 
 creditable, ground of defence that at the time when he ordered 
 them the defendant was an infant, and the goods not "neces- 
 sarics. " 
 Necessaries. Food, clothes, medicine, and the • like — such things as are 
 essential to life — are what the lay mind would understand by 
 "necessaries." But, in process of time, the word has acquired 
 a technical meaning which cannot be ascertained in a particular 
 instance without reference to the cases. Amongst things held to 
 be "necessary " may be mentioned a servant's livery (o), a vol- 
 unteer uniform (;;), horse exercise (q), a decent burial (r); While, 
 on the other hand, a valuable chronometer (s), cigars and to- 
 bacco (0, and dinners out of college (u), have been held not to 
 be. A great deal depends on the social position of the infant; 
 and, as civilization advances and luxuries increase, things be- 
 come admitted into the class of "necessaries" which, when 
 .simpler tastes prevailed, might have been dispensed with. The 
 question, whether " necessaries " or not, is one for the jury, sub- 
 ject to the control of the court. 
 
 (n) Zouch v. Parsons, 3 Burr. & W. 252. 
 1801. (s) Berolles v. Ramsay, Holt, 
 
 (o) Hands v. Slaney, 8 T. R. N. P. 77. 
 578. (t) Bryant v. Richardson, L. 
 
 (p) Coates v. Wilson, 5 Esp. R. 3 Ex. 93. 
 152. (u) Brooker v. Scott, 11 M. 
 
 (q) Hart v. Prater, 1 Jur. 623. & W. 67. 
 
 (r) Chappie v. Cooper, 13 M.
 
 NECESSARIES FOR INFANTS. ' 173 
 
 An infant is liable for "necessaries" supplied to his wife just 
 as much as if they were supplied to himself (.r). 
 
 Even, however, when the goods are "necessaries," the infant Already well 
 can get away from his con trad by showing that he was already supplied, 
 plentifully supplied with such things ; and it would seem to be 
 the law that the plaintiff's not knowing it isof noconsequence (//). 
 But the fact that the infant had a good allowance which he ought 
 to have spent in buying "necessaries," only did not, is no de- 
 fence (z). And it is an answer to the plea of infancy that the 
 defendant cheated the tradesman into the belief that he was of p raU( ] 
 age (a). 
 
 An infant landed proprietor may grant leases when it is clearly Leases. 
 
 to his advantage to do so ; and by the custom of gavelkind he 
 
 may at fifteen sell his estate. A fair contract for work to be done 
 
 by him is binding (6); but he cannot become a surety, or be 
 
 made liable for breach of warranty, or carry on a trade (c). Nor 
 
 need an infant repay money lent to him, even though lent for 
 
 the purpose of his buying necessaries with it ; for, as Parker, C. 
 
 J., shrewdly suggested in a case (cl) of the kind, " it may be bor- Rashness of 
 
 rowed for necessaries, but spent at a tavern, and therefore the lending 
 
 law will not trust him but at the peril of the lender who must P™. ne ^ 
 
 lnlants. 
 lay it out for him." An infant who acquires railway shares is 
 
 in the same situation as an infant acquiring real estate, and in 
 
 an action for payment of calls the defence of infancy will not be 
 
 sufficient unless it shows a repudiation of the shares (c). 
 
 Although an infant (except in the cases stated above) cannot other nartv 
 contract so as to bind himself, yet he binds the other party ; infan- may be 
 cy being "a personal privilege of which no one can take advan- bound, 
 tage but the infant himself." Thus, if a boy of seventeen were 
 to become infatuated with a widow of forty and agree to marry 
 her, his promise to her would not be actionable, but her's to him 
 would be (/). 
 
 The " Infants' Relief Act " (g), provides that "no action shall TSTo ratifica- 
 be brought whereby to charge any person upon any promise made tion will re- 
 after full age to pay any debt contracted during infancy, or upon Vlve promise. 
 
 (,r) Turners. Trisby,l Str. 168. fourteen years of age, who had 
 
 (?/) Bainbridge v. Pickering, fraudulently converted to his 
 
 2 W. Bl. 1325, and see Ford v. own use goods which had been 
 
 Fothergill, Peake, 229, and delivered to him by the owner 
 
 Barnes v. Toye, 13 Q. B. D. 410. under a hiring agreement, could 
 
 (z) Burghart v. Hall, 4 M. & be convicted of larceny as a 
 
 W. 727. bailee under 24 & 25 Vict. c. 
 
 (a) Rose. N. P. (15th ed.) p. 96, s. 3. 
 598. (c) See R. r. Wilson, 5 Q. B. 
 
 (ft) Wood r. Fenwick, 10 M. D. 28. 
 & W. 195; but see R. v. Lord, (rf) Earler. Peale, 1 Salk, 386. 
 12 Q. B. 757, and Meakin v. (e) Mitchell's case, L. R. 9 
 
 Morris, 53 L. J. M. C. 72. In Eq. 363. 
 
 R. v. McDonald, 15 Q. B. D. 323, (/) Holt v. Ward, 2 Str. 939. 
 it was held that an infant over \g) 37 & 38 Vict. c. 62, s. 2. 
 
 13 COMMON LAW.
 
 174 * NECESSARIES FOR INFANTS. 
 
 any ratification made after full age of any promise or contract 
 made during infancy, whether there shall or shall not be any new con- 
 sideration. One or two breach of promise cases have called for 
 Courtship 1 ' l( ' construction of this section ; and from them it would appear 
 and marriage that, before the young lady can get damages from the defendant, 
 she must show distinctly that he committed himself to afresh 
 promise alter he came of age; e.g. (as in Ditcham r. Worrall (/*)), 
 by asking her to name the day, or (as in Xorthcote v. Doughty (i) ) 
 by saying, "Now I may and will marry you as soon as lean." The 
 mere continuance of amatory conduct will not do, because no 
 new promise can he implied from such attentions, and the Act 
 of Parliament prevents their being looked at as a ratification (k). 
 By the first section of the Act all contracts by infants for the re- 
 payment of money lent, or for goods (not necessaries) supplied, 
 and all accounts stated with infants are declared absolutely void. 
 Bargains * Closely connected with the present subject is the law relating 
 
 with expect- to bargains with expectant heirs. Such a bargain will be set aside 
 unless the purchaser can show that a full consideration was paid, 
 or that the bargain was approved of by the person to whose es- 
 tate the expectant heir hoped to succeed. But the heir may, af- 
 ter being relieved from his necessities, and knowing quite what 
 he is about, ratify the transaction; as was done by the heir ex- 
 pectant in Chesterfield v. Janseen (I), the leading case on the sub- 
 ject. This relief is not now given to remaindermen or reversion- 
 ers who sell their interests, merely on the ground of under- 
 value (m). But in the recent case of Nevill v. Snelling (n) it was 
 held that the rule against catching bargains is not restricted to the 
 case of expectant heirs, but extends to all cases in which uncon- 
 scientious and unfair advantage has been taken. 
 
 ant heirs 
 
 Contracts of Lunatics. 
 
 [71.] BAXTER v. PORTSMOUTH. 
 
 [5 B. & C. 140 (1826)J 
 
 On various occasions between 1818 and 1823 the Earl 
 of Portsmouth hired carriages and horses from the plain- 
 tiff, and thereby incurred the bill for which this action 
 
 (h) 5 C. P. D. 410. (m) 31 Vict. c. 4, s. 1 ; but see 
 
 (») 4 C. P. D. 385. Avlsford v. Morris, L. R. 8 Ch. 
 
 (Jfc) Coxhead r. Mullis. 3 C. App. 484; and O'Rorke v. Bol- 
 
 P. D. 439. ingbroke, 2 App. Ca. 814. 
 
 (0 2 Ves. 125. (») 43 L. T., N. S. 244.
 
 CONTRACTS OF LUNATICS. 175 
 
 was brought. It was proved that the plaintiff had no 
 reason to suppose his lordship to be of unsound mind; 
 and that the carriages, &c, were constantly used by him, 
 and were suitable to his rank and station. This being 
 so, the plaintiff's claim was not defeated by its having 
 been found in 1823 by a commission that the Earl "then 
 was, and from the 1st of January, 1809, continually had 
 been of unsound mind, not sufficient for the govern- 
 ment of himself." 
 
 Two propositions seem clear: — 
 
 (1.) A lunatic is never liable on an executory contract, even for Executory 
 necessaries. But the better opinion is that such a contract is not contracts. 
 void but voidable, so that, ii' the man gets better, he may con- 
 firm it (o). 
 
 (2.) A lunatic is sometimes liable on executed contracts. He is Executed 
 liable on executed contracts for nece, varies for his wife as well as contracts. 
 for himself (p), if no advantage has been taken of him, even 
 though the person supplying them was aware of his condition. 
 But he is also liable on all fair and bond fide executed contracts 
 in the ordinary course of life {e.g., for the sale of an annuity) 
 when the other contracting party believed himself to be dealing 
 with a sane man and the transaction has gone so far that the 
 status quo ante cannot be restored (q). 
 
 Mere delusions with regard to the subject-matter of it will not Delusions, 
 in themselves be sufficient reason for setting a contract aside. 
 Thus, it has been held that a lease of a farm may be valid though 
 the lessor laboured under the fancy that it was impregnated with 
 sulphur (r). "Although a man," said Jessel, M. R., "may be- 
 lieve a farm to be impregnated with sulphur and not fit for himself 
 to live in, he may still be a shrewd man of business, and may 
 even believe that the other side may not know of the impregna- 
 tion of the farm with the sulphur, and that in consequence he 
 may get a higher price for it than if it was known that it was so 
 impregnated. He may have been perfectly right in his conclu- 
 sion upon that subject, and the jury may have thought that it 
 was so." 
 
 Persons drunk are in the same position as lunatics with regard Drink, 
 to the capacity of contracting. 
 
 A person is not bound by a contract which he has entered into j) uress 
 tinder duress, and he may recover what he had paid under duress. 
 
 (o) Matthews v. Baxter, L. R. J., In re Weaver, sup., at p. 620. 
 8 Ex. 132, and see In re Weaver, (5) Molton v. Camroux, 4 Ex. 
 
 21 Ch. Div. 615. 17. 
 
 (p) Read v. Legard, 6 Exch. (r) Jenkins v. Morris, 14 Ch. 
 
 Rep. 636. But see per Brett, L. Div. 674.
 
 170 CONTRACTS OF LUNATICS. 
 
 It would appear that it is not now necessary for the avoidance 
 of a transaction on this ground that the duress should he of a 
 physical kind, or addressed immediately to the person professing 
 t<> contract. "I think it must be regarded as the law." said Den- 
 man, J., in a recent case (.s), "that if a man asserts to the father 
 of a debtor that his son is liable to a criminal prosecution, and 
 the father is led by reason of that assertion to suppose that the 
 fact is so. and by reason of that belief is led to give a promis- 
 sory note, or to bind himself for the payment of a composition 
 by the son, then in that case the transaction is not a fair one. It 
 is not to be looked at as a voluntary act, but as a case of extortion,, 
 whether the facts are in accord with the assertion or not." 
 
 [72.] 
 
 Contracts of Corporations and Appropriation 
 of Payments. 
 
 ARNOLD r. MAYOR OF POOLE. 
 [4 M. & Gr. 860 (1842).] 
 
 Arnold was a solictor, and did some work for the 
 Poole corporation. But though the corporation had 
 passed a resolution directing the work to be done, and 
 though they knew perfectly well of its progress, yet 
 wheD the time came to pay they absolutely declined to 
 do so, successfully sheltering themselves under the de- 
 fence that the contracts of a corporation are not bind- 
 ing unless made under its corporate seal. 
 
 [73.] CLARKE v. THE CUCKFIELD UNION. 
 
 [21 L. J., Q. B., 349 (1852).] 
 
 At a regular constituted meeting of the Board of 
 Guardians, an order was given to Mr. Clarke to put up 
 
 (s) Seear v. Cohen, 45 L. T., Bayley, 14 L. T., N. S. 802. 
 N. S. 589; and see Williams v.
 
 CONTRACTS OF CORPORATIONS. 177 
 
 some water-closets in the workhouse, and this order Mr. 
 Clarke forthwith proceeded to execute. When, however, 
 the work was finished, the guardians refused to pay for 
 it, defending themselves on the technical ground that 
 there was no contract under seal. But it was held that 
 sealing was unnecessary, as the purposes for which the ' 
 guardians were incorporated obliged them to provide 
 water-closets; and, besides, the contract was an executed 
 one, and it would be the height of injustice that the 
 corporation should keep the benefit of the contract 
 while it impunged its validity. 
 
 The contract of a corporation aggregate requires a seal. To Corporation 
 this rule, however, there are exceptions lor the sake of conveni- may some- 
 ence. Matters of trifling importance, daily occurrence, or urgent " mes f ' on " 
 necessity, may be contracted for without seal (t). An inferior i 
 servant, for instance, may be eugaged by parol; and in a recent 
 case it was held that the Hull corporation might make agree- 
 ments for the admission of ships into their docks without any 
 sealing being necessary (u). Moreover, when a company is in- Trading com- 
 corporated for trading purposes, it may make all such contracts as pany. 
 are of ordinary occurrence in that trade, irrespective of the mag- 
 nitude of the particular transaction, without seal (x). But it has 
 been held that a copper company cannot sue on a contract not un- 
 der seal to buy iron rails from them (y). 
 
 Contracts on behalf of a joint stock company registered under 
 25 & 26 Vict. c. 89 (the Companies' Act, 1862), may now, by 
 virtue of 30 & 31 Vict. c. 131, s. 37, be generally made without 
 seal. 
 
 Clarke v. Cuckfield was followed in Nicholson v. The Bradfield 
 Union (z), which was an action for the price of coals supplied to Coals for 
 guardians for the use of their workhouse. " The goods in the workhouse, 
 present case," said Blackburn, J., " have actually been supplied 
 to and accepted by the corporation. They were such as must 
 necessarily be from time to time supplied for the very purpose 
 for which the body was incorporated, and they were supplied 
 under a contract, in fact, made by the managing body of the cor- 
 poration. If the defendants had been an unincorporated body, 
 nothing would have remained but the duty to pay for them. We 
 
 (/) Ludlow v. Charlton, 6 M. (x) South of Ireland Colliery 
 
 & W. 815; and Church v. Imp. Co. v. Waddle, L. R. 4 C.P. 617. 
 
 Gas Co., 6 A. & E. 846. (y) Copper Miners Co. v. Fox, 
 
 (u) Wells v. Kingston-upon- 16 Q. B. 229. 
 
 Hull, L. K. 10 C. P. 402. (z) L. R. 1 Q. B. 620.
 
 ITS 
 
 CONTRACTS OF CORPORATIONS. 
 
 think that the body corporate cannot under such circumstances 
 escape from fulfilling that duty merely because the contract was 
 not under seal." 
 
 So it would serin that when a corporation has entirely performed 
 its part of a simple contract, it may sue the other party for non- 
 performance of his part. Tims, a corporation, it has been held, 
 can sue a tenant who has occupied their lands without deed lor 
 use and occupation (a). 
 |r„ n t ( . But when a statute constituting a corporation provides,that its 
 
 Wimbledon contracts shall he made with scaling, a contract is void unless so 
 Local Board, made, and, though work has been done, it need not be paid for. 
 Under section 174, of the Public Health Act, 1875(6), ""every 
 contract made by an urban authority whereof the value or amount 
 exceeds £50 shall be in writing, and sealed with the common 
 seal of such authority."* The Wimbledon Local Board enjoysthe 
 distinction of having provided the first case on the construction 
 of this section (c). They verbally directed their surveyor to em- 
 ploy a Mr. Hunt to prepare plans for new offices. When the 
 plans were finished, they were submitted to the Board and ap- 
 proved by them; but the proposed offices were never built. The 
 value of the plans was about ,£90, and Hunt tried in an action 
 to make the local Board pay that amount to him. In this at- 
 tempt, however, he failed. "Even independently of the statute, " 
 said Brett, L.J., ''I am of opinion that the plaintiff cannot re- 
 cover. But I am further of opinion that the statute in this case 
 is conclusive; and it seems to me that the statute is clearly more 
 than directory. It is what has been called mandatory. It pre- 
 vents certain contracts from being valid in any way, and the real 
 meaning of the section seems to be this : the Legislature, know- 
 ing of the exceptions which existed at the time the statute was 
 passed with regard to small contracts of frequent occurrence 
 which are necessary for the carrying on of the business of the 
 corporation, intended to get rid of any discussion as to what were, 
 small matters, and to say that contracts which the board Avould 
 not otherwise be authorised to make might be made for amounts 
 less than £50; — that is to say, that if they were necessary, and 
 under £50, they should be brought within the recognised excep- 
 tion as to small matters, and that, if they were over £50, the mere 
 fact of their being over £50 would prevent their coming within 
 the exception." 
 Young r. Hunt r. Wimbledon Local Board was followed in the case of 
 
 Leamington. Young t\ The Mayor of Leamington (d), where it was held that 
 
 (a) Stafford v. Till, 4 Bing. 
 7o; and see Fishmongers' Co.r. 
 Robertson, 5 M. & G. 192; and 
 Kidderminster v. Hardwick, L. 
 R. 9 Ex. 13. 
 
 (6) 38 & 30 Yict. c. 55. 
 
 (c) Hunt v. Wimbledon Local 
 Board, 4 C. P. D. 48. 
 
 (d) 8 App. Ca. 517, and see 
 Phelps v. Upton Knodsbury 
 Highway Board, 49 J. P. 408.
 
 CONTRACTS OF CORPORATIONS. 179 
 
 a municipal corporation, acting as an urban sanitary authority, 
 were not bound to pay for works executed for them, and of which 
 they had obtained the full benefit, simply because there was no 
 contract under seal as required by sec. 174. But in another re- 
 cent case (e) in which a doctor had agreed to attend a number of Scarlet fever 
 scarlet fever patients in an encampment outside the town of at Grantham. 
 Grantham at the rate of 5s. 3d. per tent per day, and had at tended 
 till the amount due to him was nearly £100, it has been held that 
 the section applies only to a contract where, at the time of entering into 
 it, the. parties contemplate (he "value or amount" as exceeding £50. 
 "In Hunt v. Wimbledon Local Board," said Lush, L. J., "It 
 must be taken that it was known by all parties that the plans 
 would cost more than £50. In the present case it was not known, 
 at the time when the contract was entered into, how long it would 
 be necessary to employ the plaintiff as a medical man, or how 
 much his charges might amount to. His employment depended 
 upon the continuance of the outbreak of fever." 
 
 In Mellis v. Shirley Local Board (14 Q. B. D. 911), the plain- The Shirley 
 tiffs were employed as engineers to construct works for draining case, 
 the defendants' district, and the contract entered into certainly 
 fell within section 174. After doing work exceeding £50 in value 
 the plaintiffs induced the defendants to affix their seal to the 
 contract which had till then not been done. Mr. Justice Cave 
 held that part of the work being unperformed when the seal was 
 affixed, and consideration being present, the plaintiffs might sue 
 and recover. The Court of Appeal (34 W. E. 187), in dealing 
 with another point raised in this case, reversed the decision of 
 Cave, J., but did not express any opinion upon his construction 
 of section 174. 
 
 In Scott v. Clifton School Board (/), the plaintiff, who had been •phc Clifton 
 appointed architect of the board, was held entitled under the School Board 
 provisions of 33 & 34 Vict. c. 75 (the Elementary Education Act, case. 
 1870), to recover payment for services notwithstanding that the 
 appointment and orders were not under seal. "The plaintiff," 
 said Mathew, J., "was duly appointed architect to the board un- 
 der a minute signed by the chairman of the board, and commu- 
 nicated to the plaintiff by the clerk of the board, and the subse- 
 quent orders for the execution of the plans were given by minutes 
 of the board properly signed and communicated in a similar man- 
 ner. It was contended for the defendants that an architect was 
 not such an officer of the board as was contemplated by the reg- 
 ulation, inasmuch as it could not be supposed that his services 
 were intended to be more than temporary. I cannot adopt this 
 construction. By the terms of the minute the plaintiff was ap- 
 tion of the schools in the Clifton district his duties might not 
 pointed the architect of the board, and although after the erec- 
 
 (e) Eaton v. Basker, 7 Q. B. Gaskill, 31 W. R. 135. 
 D. 529, and see Att.-Gen. v. (/) 14 Q. B. D. 500.
 
 180 
 
 CONTRACTS OF CORPORATIONS. 
 
 Appropria- 
 tion of pay- 
 ments. 
 
 bo onerous, there was no reason to suppose that it was intended 
 t hut he should not continue to act whenever his services were 
 necessary. Further, the regulation is intended to he one of gen- 
 eral application, and in large towns were there were many schools 
 thru- might well be the necessity for the appointment of an archi- 
 tect as a permanent official of the board." 
 
 i Arnold \. Poole maybe usefully remembered as an authority 
 on the subject of appropriation of payments. 
 
 (1.) When a man owes another a number of different debts, and 
 makes a payment, he has the right to apply it to any of the debts 
 he pleases. The appropriation may be implied as well as express; 
 and the debtor will be presumed to have intended to make his 
 payment in the manner most beneficial to himself (g). 
 
 (2.) If the debtor fails to specify the particular debt he is pay- 
 ing, the creditor may appropriate the payment to any debt he 
 pleases, even to one for which (because, for instance, barred by 
 the Statute of Limitations, or, as in Arnold's case, due in vir- 
 tue of a contract which ought to have been under seal and is 
 not) he could not successfully maintain an action (/*). The ap- 
 propriation need not be at the time of payment: any time before 
 trial will do; and the creditor will not be estopped even by an en- 
 try in his own books, if he has not given the debtor notiae of it ( i). 
 
 (3.) If appropriation is mail n< ither by debtor nor creditor, the 
 law generally appropriates the payment to the earliest debt, com- 
 mencing with the liquidation of any interest that may be due (k). 
 But if there are two debt's, one lawful and the other not, the 
 money will go to the settlement of the lawful one (?). 
 
 Life Insurance. 
 
 [74.] 
 
 HEBDON v. WEST. 
 [3B. &S. 549 (1863).] 
 
 This was an action against an insurance society. The 
 plaintiff had been for many years a clerk in a bank at 
 
 (g) Shaw r. Picton, 4 B. & C. 
 715: /// rt Matthew, 12 Q. B. D. 
 506. 
 
 (/() Phil pott v. Jones, 2 A. & 
 E. 41; Mills v. Fowkes. 5 Bing. 
 N. C. 455; and Nash v. Hodgson, 
 6 D. M. & (i. 474 : but see Lamp- 
 rell v. Billericay Union, 3 Ex. 
 283. 
 
 (i) Simpson v. Ingham, 2 B. 
 & C. 65. 
 
 {k) Clayton's case, 1 Mer. 606, 
 but see London and County 
 Banking Co. v. Terrv, 25 Ch. 
 Div. 692. 
 
 (/) Wright r. Laing, 3 B & C. 
 165.
 
 LIFE INSURANCE. 181 
 
 Preston, and had proved very useful to his employers, 
 of whom a gentleman named Pedder was the senior 
 and managing partner. Pedder was much pleased 
 with the man, and promised him two things — one, that 
 be would not, during his life, enforce payment of a 
 debt of £4000 or £5000 which Hebdon owed the bank, 
 and the other, that he would pay him an increased 
 salary of £600 a year during the next seven years. 
 Careful man that he was, Hebdon obtained Pedder's 
 permission to insure the latter's life in respect of these 
 promises, and the chief question' now was whether the 
 insured had such a pecuniary interest in Pedder's life as 
 to satisfy 14 Geo. III. c. 48. It was held that in re- 
 spect of the £600 a year salary he had, but not in re- 
 spect of the other promise. It was held also that a 
 person cannot recover from an insurance company 
 more than the amount of his insurable interest in the 
 life of the person insured. 
 
 DALBY v. INDIA AND LONDON LIFE [75.] 
 
 INSURANCE CO. 
 
 [15 C. B. 3G5 (1854).] 
 
 The effect of this case is to overrule Godsall v. Bol- 
 dero (m), and to decide that a contract of life insur- 
 ance is not, like that of fire or marine insurance, a con- 
 tract of indemnity merely, but entitles the assured to 
 receive the exact sum for which he has insured, no 
 matter how much in excess of his real loss it may be. 
 
 14 Geo. III. c. 48, s. 1, provides that no insurance shall be Necessity ior 
 made by any person on the life of another, unless the person for " interest." 
 whose sake the policy is made has an interest in that life. 
 
 What then is an " interest?" 
 
 In the first place, a man is presumed to have an interest in his -yy^o ] ]ag 
 own life. But, on the other hand, if it can be shown that he is " interest." 
 
 (m) 9 East, 72. See some interesting remarks of Lord Black- 
 burn's on this case in Burnand v. Kodocanachi, 7 App. Ca. 340.
 
 182 
 
 LIFE INSURANCE. 
 
 ( Ireditor. 
 
 < 'cstui que 
 trust. 
 
 1 1 usband and 
 
 wile. 
 
 Father. 
 
 Name. 
 
 Time at 
 
 which inter- 
 est must 
 exist. 
 
 Assignment 
 of life policy. 
 
 insuring his life with another person's money, and for that 
 other's benefit, the policy will he void, for it is then nothing 
 better than an attempt to evade the statute (»)• A creditor may 
 insure his debtor's life, and, even though the debt is afterwards 
 paid, may recover the money from the insurance office (o). A 
 cestui que trust may insure the life of his trustee (})), and a wife 
 her husband's (</). A husband is not presumed to have such an 
 interest in his wife's life. The "Married "Women's Property 
 Act, 1882" (/■), gives power to a married woman to effect a policy 
 tin her own or her husband's life for her separate use, and pro- 
 vides that, if a husband insures his life in a policy expressed on 
 the face of it to be for the benefit of his family, it shall create a 
 trust for them. But, generally, the interest required by the 
 statute is a pecuniary interest; and therefore an insurance by a 
 lather in his own name on the life of his son, he having no pecu- 
 niary interest in the continuance of it, is void (s). 
 
 The name of the party interested must be inserted in the jxd- 
 
 icy (/)• 
 
 The time at which the required interest must exist is the time of 
 (In < ntt ring into the contract. It may have only ceased at the time 
 of the death, but the insurance office will nevertheless be bound 
 to pay the money, for, as already stated, life insurance is not a 
 mere contract of indemnity. But, as we have also seen already, a 
 man cannot recover more than the amount of his insurable in- 
 terest at the time of the contract. He could not, for instance, 
 insure with half a dozen different offices and recover the money 
 from all of them. This is the effect of the construction placed by 
 Ihbdon v. West on sect. ?> of 14 Geo. Ill c. 48. 
 
 A life policy may be assigned, either by indorsement or by a 
 separate instrument, and the assignee may sue in his own name 
 without showing any interest of his own; but a written notice 
 of the assignment must be given to the insurance company (u). 
 In the recent case of Newman v. Newman (x) it was held that 
 the Act which requires this notice is intended to apply only 
 as between the insurance office and the persons interested in the 
 policy, and does not affect the rights of those persons inter se; so 
 that where a first incumbrancer on a policy had not given such 
 notice as prescribed by the Act, and a second incumbrancer with 
 
 (n) AVainwright r. Bland, 1 
 M. & W. 32, and Shilling v. 
 Accidental Death Ins. Co. 2 II. 
 & N. 42. 
 
 (o) Anderson v. Edie, 2 Park 
 Ins. 914. 
 
 {)>) Collett r. Morrison, 9 
 Hare, 162. 
 
 (q) Peed v. Pov. Exch. Co., 
 Peake Add. Ca. 70. 
 
 0) 45 & 46 Vict. c. 75, s. 11. 
 re-enacting ISIi & 34 Yict. c. 93, 
 s. 10, and see as to this In re 
 Soutar's Policy Trust, 26 Ch. 
 D. 236. 
 
 (s) Hal ford v. Kymer, 10 B. 
 & C. 724. 
 
 (t) 14 Geo. III. c. 48, s 2. 
 
 («) 30 & 31 Vict. c. 144. 
 
 (x) 28 Ch. D. 674.
 
 LIFE INSURANCE. "J gy 
 
 notice of the prior change had given the statutory notice, it was 
 held that the second incumbrancer did not thereby obtain pri- 
 ority. 
 
 A person insuring his life has usually to answer a number of Conditions of 
 questions as to the state of his health, the illness he has had, life' policy. 
 &c. Jf it is made a condition of the policy that those questions 
 shall be answered truly, the policy will become void even for 
 immaterial and untentional errors (y). In that case the truth of 
 the declarations is the basis of the policy. If there is no such 
 condition, the question is Avhether the concealment or misrepre- 
 sentation was of a material fact (z). See Grogan's case,. 53 L. T., 
 N. S., 761. 
 
 People who insure their lives should be a great deal more 
 careful than they are to look at the conditions of a policy before 
 signing it. Most people, it is believed, would enter into such a 
 contract without noticing that they were never to play a game at 
 lawn-tennis, or run over to Paris for a few days, or join the vol- 
 unteers, or the Salvation Army, without the leave of the office. 
 A common condition in a policy is that it shall become void in 
 the event of the insured committing suicide. As such a cond- 
 tion (according to the more accepted opinion) covers suicide 
 while in a state of insanity (a), and as insanity is a disease from 
 which even the most gifted are not exempt any more than they 
 are from colds or fevers, a wise man will draw his pen through 
 it. 
 
 This branch of the subject is well illustrated by the recent 
 cases of Winspear v. Accident Insurance Co. (b), and Lawrence 
 r. Accidental Insurance Co. (c). In the former case, a man had "vVinsnear's 
 effected an insurance against death by accidental injury, but the case. 
 policy contained a proviso that the insurance should not extend 
 "to any injury mused by or arising from natural disease or weakness 
 or exhaustion consequent on disease.'" During the time this policy 
 was in force, the insured, whilst crossing the river at Edgbaston, 
 was seized with an epileptic tit, and fell into the water and was 
 drowned. It was held that the executrix could recover on the 
 policy, in spite of the proviso. In the other case, a man who , 
 
 had effected a policy with much the same kind of proviso was Lawrence s 
 taken ill on the platform at Waterloo and fell in a fit on to the 
 line, where an engine passed ovei and killed him. On the au- 
 thority of Winspear's case, it was held that the insurance com- 
 pany were not protected by their proviso. '"We must look," 
 
 (y) Anderson v. Fitzgerald, 4 great names of Pollock, Wight- 
 
 H. L. C. 507, and Thomson v. man, Cresswell, Tindall, Ers- 
 
 Weems, 9 App. Cas. 671. kine, Alexander, Tenterden, 
 
 (z) London Assurance Co. v. and St. Leonards might be 
 
 Mansel, L. R. 11 Ch. D. 363. cited in support of the contrary 
 
 (a) Clift v. Schwabe, 3 C. B. view which, it is submitted, is 
 
 437, and see Borradaile v. Hun- far more consistent with coni- 
 
 ter, 5 M. & G. 639. It may be mon sense, 
 
 doubted, however, whether (b) 6 Q. B. D. 42. 
 
 such is really the law. The (c) 7 Q. B. D. 216. 
 
 case.
 
 184 
 
 LIFE INSURANCE. 
 
 Premiums 
 not paid. 
 
 Leslie v. 
 French. 
 
 said Watkin Williams, J., ''at only the immediate and proxi- 
 mate cause of death, and it seems to me to be impracticable to 
 go back to cause upon cause, which would lead us back ulti- 
 mately to the birth of the person, for, if he had never been born, 
 the accident would not have happened." 
 
 Independently of conditions, a policy is vitiated by felonious 
 suicide, being killed in a duel, or being executed (d); as also by 
 fraudulent misrepresentation or concealment of material facts at 
 the time of effecting the policy. 
 
 If the premium is not paid in the stipulated manner, the policy 
 will become void. By receiving premiums, however, with full 
 knowledge of the breach, the insurers will be deemed to have 
 waived the forfeiture (e). 
 
 In Leslie V. French (/) it was held that when a person, not- 
 the sole beneficial owner, pays the premiums to keep up a policy 
 of life insurance, he is entitled to a lien on the policy or its pro- 
 ceeds in the following cases: — 
 
 (1.) By contract with the beneficial owner. 
 
 (2.) By reason of the right of trustees to an indemnity out of 
 their trust property for money expended by them in its preserva- 
 tion. 
 
 (3.) By subrogation to their right of some person who at the 
 request of trustees has advanced money for the preservation of 
 the property; and 
 
 (4.) By reason of the right of a mortgagee to add to his charge 
 any money paid by him to preserve the property. 
 
 In no other cases can a lien on a policy for premiums paid be 
 • acquired either by a stranger or by a part owner of the policy. 
 
 Fire Insurance. 
 
 [76.] 
 
 DARRELL v. TIBBITTS. 
 [5 Q. B. I). 560 (1880).] 
 
 A steam roller of the Brighton Corporation's was so 
 heavy that it broke the gas pipes in a street, and caused 
 an explosion in one of the houses. The tenants of the 
 
 {(J) Amicable Society v. Bol- 
 land, 4 Bligh. 194. 
 
 (e) Wing v. Harvev, 5 De G. 
 M. & G. 265. See also the re- 
 cent case of Canning v. Farqu- 
 har, 34 W. R. 423 L. J. N., 
 March 20th, 1880, where a man 
 
 had died after the acceptance of 
 his proposal, but before tender 
 of the premium, and it was held 
 that the assurers need not grant 
 a policv. 
 
 ( f) 23 Ch. D. 552. and see In 
 re thorp, 2 Sm. & Giff. 578, n.
 
 FIRE INSURANCE. 185 
 
 house got compensation from the Corporation for dam- 
 age so done and repaired the premises, as they were 
 bound to do by the terms of their lease. But it hap- 
 pened that the landlord had insured the houso with the 
 plaintiffs by a policy against tire covering injury by gas 
 explosion, and the plaintiffs, unaware that by the terms 
 of the lease the lessees were bound to make good inju- 
 ries done by an explosion of gas, paid the policy money. 
 But when they heard that the tenants had put the house 
 all right again, they claimed a return of their money ; 
 and they were held to be entitled to it, because a policy 
 of fire insurance is a contract of indemnity. As was 
 remarked by Brett, L.J., if the plaintiffs could not re- 
 cover the money back, "the whole doctrine of indem- 
 nity would be done away with; the landlord would be 
 not merely indemnified^ he would be paid twice over." 
 
 The person who effects an insurance against fire must have an Necessity for 
 interest in the property insured, and he cannot recover beyond nis " interest." 
 interest. It is his duty, when effecting the insurance, to com- ^ommunica- 
 municate to the insurers, all material facts (g) ; and it is an im- fgrial f. icts 
 plied condition that his description of the property is accurate (g). Alteration of 
 It is also an implied condition when a house is insured, that it premises. 
 shall not be altered so as to increase the risk (It). When a build- { Ire ^ 1U 
 ing in the metropolitan district is burnt down, any person inter- 
 ested may require the insurance money to be laid out in repair- 
 ing or rebuilding the structure (/). 
 
 In the recent case of Castellian v. Preston (k), a vendor had Castellaiu v. 
 contracted with a purchaser for the sale, at a specified sum, of a Preston, 
 house at Liverpool, which had been insured by the vendor with 
 an insurance company against fire. The' contract contained no 
 reference to the insurance. After the date of the contract, but 
 before the date fixed for completion, the house was damaged by 
 fire, and the vendor received the insurance money from the com- 
 pany. The purchase was afterwards completed, and the pur- 
 chase money agreed upon, without any abatement on account of 
 the damage by fire, was paid to the vendor. In an action by the 
 
 (g) Bufe v. Turner,. 6 Taunt. (?) 14 Geo. III., c. 78, s. 83 ; 
 
 338 ; and see Lindenau v. Des- and see recent case of Anderson 
 
 borough, 8 B. & C. 586. v. Commercial Union Assurance 
 
 (h) Sillem v. Thornton, 3 E. Co., 55 L. J., Q. B. D. 146. 
 & B. 882. (k) 11 Q. B. D. 380.
 
 186 
 
 FIRE INSURANCE. 
 
 Midland 
 Insurance 
 Company v. 
 Smith. 
 
 company against the vendor, it was held that the company were 
 entitled to recover a sum equal to the insurance money from the 
 vendor for their own benefit. "Darrell v. Tibbitts,^ said Brett. 
 L.J., ''seems to me to he entirely in favour of the plaintiff in 
 this case. I shall not retract from the very terms which I nsed 
 in that case. It seems to me that in Darrell v. Tibbitts the in- 
 surers were not subrogated to a right of action or to a remedy. 
 They were not subrogated to a right to enforce the remedy, but 
 what they were subrogated into was the right to receive the ad- 
 vantage of the remedy which had been applied, whether it had 
 been enforced or voluntarily administered by the person who 
 
 was bound to administer it The contract in the 
 
 present case, as it seems to me, does enable the assured to be put 
 by the third party into as good a position as if the fire had not 
 happened, and that result arises from the contract alone. There- 
 fore, according to the true principles of insurance law, and in or- 
 der to carry out the fundamental doctrine, namely that the as- 
 sured can recover a full indemnity, but shall never recover more, 
 except perhaps in the case of the serving and laboring classes un- 
 der certain circumstances, it is necessary that the plaintiff in this 
 case should succeed. The case of Darrell v. Tibbitts has cut away 
 every technicality which would prevent a sound decision. The 
 doctrine of subrogation must be carried out to the full extent, and 
 carried out in this case by enabling the plaintiff to recover." 
 " On the principle of Darrell v. Tibbitts, " said Cotton, L. J., " when 
 the benefits afterwards accrued by the completion of the pur- 
 chase the insurance company were entitled to demand that the 
 money paid by them should be brought into account. Therefore 
 the conclusion at which I have arrived is that, if the purchase 
 money has been paid in full, the insurance company will get back 
 that which they have paid, on the ground that the subsequent 
 payment of the price which had been before agreed upon, and the 
 contract for payment of which was existing at the time, must be 
 brought into account by the assured, because it diminishes the 
 loss against which the insurance office merely undertook to in- 
 demnify them." " The answer to the question raised before us," 
 said Bowen, L.J., appears to me to follow as a deduction from 
 the two propositions, first, that a fire insurance is a contract of 
 indemnity, and secondly, that when there is a contract of indem- 
 nity no more can be recovered by the assured than the amount 
 of his loss." 
 
 Another recent case of much interest is Midland Insurance Co, 
 v. Smith (I), where an insurance company granted a fire policy 
 to a man named Smith, and during the currency of the policy, 
 Mrs. Smith feloniously burnt the property insured. It would 
 appear from this case that a felonious burning by the wife of the 
 assured, without his privity, is covered by the ordinary fire policy. 
 
 (I) 6 Q. B. D. 561.
 
 CONCEALMENT FROM MARINE INSURERS. 1 87 
 
 It is a common covenant in a lease that 1lie lessee will keen. Forfeiture for 
 the premises insured. Such a covenant runs with the land. If not insuring. 
 it is broken, relief against the forfeiture will generally be granted 
 the first time of breaking, where no loss by fire has happened, 
 and there is an insurance on foot at the time of the application 
 for relief (in). 
 
 By the Metropolitan Fire Brigade Act, 1865 (»), s. 1:2, any Damage done 
 damage occasioned by the Metropolitan Fire Brigade "in the due by Fire 
 execution of their duties shall be deemed to be damage by tire Brigade. 
 within the meaning of any policy of insurance against fire." 
 
 Concealment from Marine Insurers. 
 
 » 
 
 CARTER v. BOEHM. [77] 
 
 [1 W. Bl. 594 (1763).] 
 
 The governor of Fort Marlborough, in the island of 
 Sumatra in the East Indies, came to the conclusion that 
 there was considerable danger of his fort being cap- 
 tured. He therefore wrote to his brother in England, 
 and asked him to get the fort insured for a year. The 
 brother accordingly went to Boehm and Co., who in- 
 sured Fort Marlborough against capture by "a for- 
 eign enemy " between October 16th, 1759, and Octo- 
 ber 16th, 1760. In April, 1760, the fort was captured 
 by the French, and this action was brought to recover 
 the insurance money. The insurers declined to pay, 
 on the ground that certain material facts contained in 
 two letters which the governor had written to his brother 
 in September, 1759, had been concealed from them. In 
 those letters the governor spoke of the weakness of his 
 fort, and the probability of the French attacking it. It 
 appeared, however, that the fort was little more than a 
 
 (m) See 22 & 23 Vict. c. 35, Mapleson, 9 Q. B. D. 672. 
 ss. 4 and 6, and see 44 & 45 (n) 28 & 29 Vict. c. 90. 
 Vict. c. 41, s. 14; and Quilterv.
 
 1S8 
 
 CONCEALMENT PROM MARINE INSURERS. 
 
 factory, being merely intended for defence against the 
 natives, so that its iveakness was an immaterial fact as 
 regarded the French, while the probability of their at- 
 tacking it was a question which a person in England 
 was in a better position to determine than the governor 
 himself. Boehm and Co., therefore, were ordered to 
 pay. 
 
 What must 
 be told. 
 
 The con- 
 verted 
 cruiser. 
 
 What need 
 not be told. 
 
 The slip. 
 
 On the principle that the minds of the contracting parties are 
 not ad iilim, the concealment, whether wilful or accidental, of a 
 material fact vitiates a policy of marine insurance. Everything 
 that can increase the risk insured must be communicated (o), 
 and it makes no matter that the fact was once actually known to 
 the underwriter if it was not present to his mind at the time of 
 effecting the insurance. A man once insured a merchant ship 
 with an insurance office without telling them that she was iden- 
 tical with a once well known and formidable Confederate cruiser. 
 It was astonishing that they did not remember it. But the ship- 
 owner's omission to tell them was held to be fatal to his success 
 on the policy (p). The rule on the subject has been stated in a 
 later case to be that, while it would be too much to put on the 
 assured the duty of disclosing everything which might influence 
 the mind of an underwriter, " all should be disclosed which would 
 affect the judgment of a rational underwriter governing himself by the 
 principles and calculations on which iindcncriters do in practice 
 act " (q). So the non-disclosure of the charterers' power to can- 
 cel the charter, whereby the shipowners might lose the freight, 
 has been held to be an answer to an action on a policy (r). But, 
 on the other hand, the party effecting the policy is not bound to 
 disclose mere rumours, even if they have appeared in the news- 
 papers, nor such things as it is the business of the underwriters 
 to find out for themselves, such as the usage of trade, the dangers 
 of particular seas and rivers, or the probabilities of hostilities («). 
 Nor need the insured communicate matter which forms an in- 
 gredient in a warranty, e.g., that of seaworthiness (t). 
 
 By mercantile usage the slip, though not admissible in evidence 
 as a contract («), is treated as the contract for insurance. There- 
 
 Co) Striblev v. Imp. Mar. Ins. 
 Co., 1 Q. B. D. 507. 
 
 {p) Bates v. Hewitt, L. E. 2 
 Q. B. 595. 
 
 (q) Ionides r. Pender, L. R. 9 
 Q. B. 531, and see Rivaz v. Ge- 
 russi, 6 Q. B. D. 222, and Tate 
 & Sons v. Hyslop, 15 Q. B. D. 
 368. 
 
 (r) Mercantile Steamship Co. 
 
 v. Tyser, 7 Q. B. D. 73. 
 
 (s) Gandv r. Adelaide Co., L. 
 R. 6 Q. B. 746; but see Hanow- 
 er v. Hutchinson, L. R., 5 Q. 
 B. 584. 
 
 (7) Haywood v. Rodgers, 4 
 East. 590. and Knight v. Cotes- 
 worth, 1 C. & E. 48. 
 
 («) 30 & 31 Vict. c. 23, s. 7.
 
 ABANDONMENT TO UNDERWRITERS. 189 
 
 fore facts which have come to the knowlege of the assured after 
 the slij) is signed, but before the policy is completed, need not be com- 
 municated (a;). Whether any particular fact was "material" or 
 not, is a question for the jury. The point is not free from doubt, 
 but probably on such an enquiry skilled witnesses, having no interest Opinion of 
 in the matter litigated, can be called to say that, if they had been expert, 
 the underwriters, they would or would not have been materially 
 influenced by this or that fact (y). 
 
 Abandonment to Underwriters. 
 
 ROUX v. SALVADOR. [78] 
 
 [3BING. N. C. 286 (1836).] 
 
 In consequence of a leak in the ship that was carry- 
 ing them, a cargo of hides began to putrefy, and it be- 
 came obvious that, as hides, they would never reach the 
 journey's end. Under these circumstances they were 
 sold at an intermediate port, and fetched less than a 
 fourth of their value. Happily for the owner, they 
 were insured; and it was held that he could claim for 
 a total loss without an abandonment. 
 
 A total loss may be actual or constructive. It is actual when no a f na i f f. i 
 part of the subject-matter of the insurance exists in such a state i 0SS- 
 as to serve any useful purpose. There is, of course, an actual 
 total loss when the insured ship is consumed by fire, or destroyed 
 by perils of the sea. But there is also an actual total loss if it is 
 reduced to a mere wreck or congeries of planks (z), or if an in- 
 sured cargo is so damaged as to exist only in the shape of a nui- 
 sance (a). A constructive total loss arises whenever the nature of Constructive 
 the loss is such as to give reasonable ground to the assured for total loss. 
 
 (z) Cory?' Patton, L. R. 9Q. (s) Cambridge?'. Anderton, 2 
 
 B. 577, and see Morrison ?\Univ. B. & C. 691, and Levy & Co. v. 
 
 Mar. Ins. Co., L. R. 8 Ex. 197. The Merchant Marine Insur- 
 
 (y) Berthon v. Loughman, 2 ance Co.. 1 C. & E. 474. 
 
 Stark. 258, and Rickards •?>. (a) Dyson v. Rowcroft, 3 B. 
 
 Murdock, 10 B. & C. 527; but & P. 75. 
 see Campbell v. Rickards, 5 B. 
 & Ad. 840. 
 
 14 COMMON LAW.
 
 190 ABANDONMENT TO UNDERWRITERS. 
 
 relinquishing the voyage altogether. The attitude he takes up 
 Abandon- towards the underwriters is of this kind, — " It is true my goods 
 ment. still exist; hut look at their condition. It is really not worth my 
 
 while to have them forwarded to their destination. My enter- 
 prise is practically a failure. I will have the policy money, and 
 you can have these damaged goods to make what you can out of 
 them." This is called abandonment, and is required by law as a 
 condition of the assured's claiming for a constructive total loss. 
 It is only fair, because otherwise he would be reaping an undue 
 benefit from what is merely a contract of indemnity. Notice of 
 abandonment must be given within a reasonable time after the 
 assured has received intelligence of the loss (ft). An abandon- 
 ment may be made orally (c); but it must be certain (d), uncon- 
 ditional (e), and of the whole thing insured (/). On the other 
 hand, if the underwriter means to dispute the matter, he must 
 say so within a reasonable time after receiving notice of abandon- 
 ment (</). In the recent case of Forwood v. The North Wales, 
 &c, Co. (ft), it was. held that a constructive total loss was cov- 
 ered by a policy and by-laws confining the insurance to "absolute 
 damage caused by the perils insured against." 
 
 In the case of a policy of re-insurance, if a constructive total 
 loss has happened, no notice of abandonment is necessary (»)• 
 
 Return of Premium. 
 
 [79.] TYRIE r. FLETCHER. 
 
 [2 Cowp. 666 (1777).] 
 
 This was an action against an underwriter for a return 
 of part of the premium paid for the insurance of a ship 
 called the "Isabella." The ship was insured " at and 
 from London to any port or place where or whatsoever 
 for twelve months from the lQth of August 1776 to the 
 19M of August 1777, both days inclusive, at £9 per cent. 
 
 (ft) Mitchell v. Edie, 1 T. R. ( f) Park. 229. 
 
 608. (g) Hudson v. Harrison, 3 B. 
 
 (c) Read v. Bonham, 2 B. & & B. 97. 
 
 B. 149. (ft) 9 Q. B. D. 732. 
 
 (d) Parmeter v. Todhunter, 1 (i) Uzielli v. Boston Marine 
 Camp. 541. Insurance Co., 15 Q. B. D. 11. 
 
 (e) McMasters v. Shoolbred.l 
 Esp. 239.
 
 RETURN OF PREMIUM. 191 
 
 warranted free from captures and seizures by the Amer- 
 icans and the consequences thereof . The "Isabella" was 
 captured by an American privateer about two months 
 after she had sailed from London. It was held that the 
 risk was entire and had commenced; therefore there 
 could be no return of premium. 
 
 When a plaintiff fails to establish his right to recover on a 
 policy of marine insurance, the question arises whether he is en- 
 titled .to a return of premium. 
 
 Two rules are clear: — 
 
 (1.) WJierethe risk has not been run, 1 he premium will be returned. Rj s fc never 
 Thus, if the insured ship never sailed, or if the insured goods commenced, 
 were never put on board, there must be a return (k). So when 
 only part of the goods embraced by the policy is put on board, a 
 proportionate part of the premium must be returned (/). So too 
 the premium may be recovered where the policy is rendered void 
 ab initio through non-compliance with a warranty (m). 
 
 (2.) ]\7iere the risk has once commenced, there can be no return of p>i s k once 
 premium. The well known case of Stevenson v. Snow (n) is not commenced, 
 really an exception to this rule. There the insurance was from Stevenson v. 
 London to Halifax, warranted to depart with convoy from Ports- 
 mouth. But when the ship got to Portsmouth, the convoy had 
 gone. It was held that there must be a part return of the pre- 
 mium for the risk never incurred, viz., that of the voyage from 
 Portsmouth to Halifax. " There are two parts,''' 1 said Lord Mans- 
 field, "in this contract; and the premium may be divided into two dis- 
 tinct parts, relative, as it were, to two voyages." 
 
 If the assured has been guilty of fraud (e.g. if he knew the Fraud and 
 ship was lost when he insured her) he cannot claim a return of illegality. 
 the premium, even though the risk never commenced (o). 
 
 So, where a policy is illegal, and the voyage has been performed, 
 there can be ho return, because in pari delicto potior est conditio 
 possidentis (p). But Avhile the illegal contract remains executory, 
 there is a locus pcenitentix, and the assured may recover his pre- 
 mium on formally renouncing and retiring from the whole trans- 
 action (</). 
 
 Though not a case of marine insurance, the case of Ferns v. Ferns v. 
 Carr (r), may be briefly referred to here. A Mr. Ferns was in Carr. 
 
 (A) Martin v. Sitwell, 1 Show. (o) Wilson v. Duckett, 3 Burr. 
 
 151. 1361. 
 
 (/) Eyre. r. Glover, 16 East, (p) Lowry v. Bourdien, Doug. 
 
 218, and see Horneyer v. Lush- 468. 
 
 ington, 15 East, 46. (q) See Palyart v. Leckie, 6 
 
 (m) Penson v Lee, 2 Bos. & P. M. & S. 290. 
 
 330. (r) 28 Ch. D. 409. 
 
 (n) 3 Burr. 1237.
 
 192 RETURN OF PREMIUM. 
 
 November. 1880, bound as an articled clerk for five years to a 
 solicitor named Carr, and a premium of £150 was paid. In De- 
 cember, 1883, Carr died, leaving no partner to continue Ferns's 
 legal education during tbe remaining two years of the articles. 
 In an action by Ferns, pater, against Carr's executors, it was held 
 that the estate was not liable for the return of any part of the 
 premium. 
 
 Deviation. 
 
 [80.1 SCAEAMANGA v. STAMP. 
 
 [5 C. P. D. 295 (1880).] 
 
 The defendant's steamship " Olympias " was char- 
 tered by the plaiDtiff to carry a cargo of wheat from 
 Cronstadt to Gibralter. When nine days out, she sighted 
 another steamship, the "Arion," in distress, her ma- 
 chinery having completely broken down. The weather 
 was fine and the sea smooth, so that the crew might 
 easily have been taken off and saved; but the master 
 of the "Arion," anxious to save his ship and cargo as 
 well as the lives of his crew, agreed to pay the "Olym- 
 pias" £1000 to tow the ship into the Texel. Accord- 
 ingly the " Olympias " took the "Arion " in tow, and, in 
 so deviating from the ordinary course of her voyage, 
 got ashore on the Terschelling Sands, and with her 
 cargo was ultimately lost. 
 
 It was held that, as it was not reasonably necessary 
 to take the "Arion" to the Texel in order to save the 
 lives of those on board her, this deviation was unjusti- 
 fiable, and therefore the plaintiff was entitled to recover 
 the value of his cargo. 
 
 Deviation to Those in peril on the sea derive a substantial benefit from thi.s 
 save life is case, which may be said to have distinctly decided that a deria- 
 justifiable. lion for (he purpose of sating life is justifiable, though a deviation 
 merely for the sake of saving property is not.
 
 DEVIATION. 193 
 
 By deviation is meant a ship's intentional departing from the Necessity 
 regular course of her journey, and (in the ahsence of agreement) justilies de- 
 it can only be justified by overwhelming necessity, e.g., to get pro- viation. 
 visions, to avoid capture, to repair damage, or, according to the 
 leading case, to save life (s). The reason of the rule is that the 
 assured has no right to substitute a different risk (t). 
 
 When a ship deviates unnecessarily, its owners are responsible Consequences 
 for all loss, no matter how arising, that occurs during the devia- °* improper 
 tion («). But a deviation does not discharge the insurers from 
 liability for previous loss (x). 
 
 Mere intention to deviate will not vitiate a policy (y). 
 
 Another implied warranty the breach of which will prevent the Seaworthi- 
 insured from recovering on a voyage-policy is that of scaworthi- ness. 
 ness. What is warranted is not that the ship will contin'ue, but 
 that it is at the time of the effecting of the policy, seaworthy (z). 
 The presumption is that a ship is seaworthy, but, if she goes 
 wrong very shortly after sailing, the assured will be called on to 
 show that it was from causes subsequent to the commencement 
 of the voyage (a). A ship is not seaworthy if there is not a com- 
 petent crew (b). Seaworthiness, however, is a term of relative Decrees of 
 import; and "where the nature of the adventure, and the size seaworthi- 
 and class of vessel to be employed, are known to both parties, Q ess. 
 the implied warranty of the shipowner cannot be carried further 
 than that he shall do his utmost to make the particular vessel as 
 fit for the voyage as she can possibly be made " (c). There is no 
 warranty of seaworthiness implied in a lime-policy (d). 
 
 In the recent salvage case of "The Glenfruin " (dd), Butt, J., 
 said, " I have always understood the result of the cases from Lyon 
 v. Mells, 5 East, 428, to Kopitoff v. Wilson, 1 Q. B. D. 377, to be 
 that under his implied warranty of seaworthiness the shipowner 
 contracts not merely that he will do his best to make the ship 
 reasonably fit, but that she shall really be reasonably fit for the 
 voyage. Had those cases left any doubt in my mind it would 
 have been set at rest by the observations of some of the peers in the 
 case of Steel v. State Line Steamship Co., 3 App. Ca. 72." 
 
 (.s) See Urquhart v. Barnard, (a) Watson v. Clark, 1 Dow. 
 
 1 Taunt. 456. 344. 
 
 (t) See African Merchants Co. (b) Clifford v. Hunter, M. & 
 
 v. an Insurance Co., L. R. 8 Ex. M. 103. 
 154. (c) Add. Contr. (7th ed.) 
 
 (u) Davis v. Garrett, 6 Bing. 881 ; and see Burges v. Wick- 
 
 710. ham, 33 L. J. Q. B. 17, and 
 
 (.c) Green v. Young, 2 Ld. Clapham v. Langton, 34 L. J. 
 
 Raym. 840. Q. B. 46. 
 
 (y) Kewlev v. Ryan, 2 H. Bl. (d) Gibson v. Small, 4 H. L. 
 
 343, and Hare v. Travis, 7 B. & Ca. 353, and Dudgeon v. Pem- 
 
 C. 14. broke, 2 App. Ca. 284. 
 
 (z) Dixon v. Sadler, 5 M. & (dd) 10 P. D. 108. 
 W. 414.
 
 194 AVERAGE. 
 
 Average. 
 
 [81.] WHITECROSS WIRE CO. v. SAVILL. 
 
 [8. Q. B. D. 654 (1882).] 
 
 The defendants were the owners of a ship called the 
 "Himalaya," which in October, 1876, sailed from Lon- 
 don for New Zealand with (amongst other things) some 
 fencing wire of the plaintiffs' on board. "Whilst lying 
 at her port of destination, and before she had discharged 
 all her cargo, a fire broke out in the hold, and ship and 
 cargo were in imminent danger of destruction. Rising 
 to the occasion, the master had a quantity of water 
 poured into the hold upon the wire, and so the fire was 
 put out and the ship saved. 
 
 This was an action to recover a contribution by way 
 of general average for the damage thus deliberately in- 
 flicted on the wire, and it was held that the claim was 
 well founded. 
 
 • 
 Pri inlecf "When the stormy winds do blow, it is sometimes essential to 
 general aver- the safety of the ship and the success of the adventure to throw 
 age. things overboard ; — in technical language to jettison them. The 
 
 sacrifice being for everybody's benefit, it would obviously be un- 
 just that the whole loss should fall on the unfortunate owner 
 whose goods were selected. The loss, therefore, is rateably ad- 
 justed between all the owners ; and this adjustment is called 
 general average (e). 
 () lv mer- Only merchandise, however, is liable to contribution ; therefore 
 
 chandise not passengers' wearing apparel, nor provisions, nor convicts (/). 
 
 liable. Moreover, it is essential to the liability to pay a general aver- 
 
 shin neces- a ° e contribution that the ship should have been saved, and that 
 sary. the sacrifice should have materially conduced thereto ; or, as Lord 
 
 Tenterden has well put it, that the jettison should be " the effect 
 
 ((?) For an exhaustive history Dock Co., 44 L. T., N. S. 426. 
 of the law of general average, (/) Brown v. Stapyleton, 4 
 
 see the judgment of Watkin Bing. 119. 
 Williams, J. in Pirie v. Middle
 
 AVERAGE. 195 
 
 of danger and the cause of safety." The part of the cargo thrown 
 overboard must also have been properly laden, e.g., (unless war- 
 ranted by usage) not on deck (g). . 
 
 Masts and sails destroyed in consequence of having to carry an Masts and 
 unusual press of sail {e.g., as in Covington v. Roberts (h), to es- sails. 
 cape from a French privateer) are not subjects of general aver- 
 age; but if they have been deliberately cut away for the sake of 
 saving the ship, they are (i). Incidental expenses may also be Incidental 
 claimed. For instance, when a ship goes into port in conse- expenses, 
 quence of an injury to her which is itself the subject of general 
 average, the expenses of warehousing and reloading goods neces- 
 sarily unloaded for the purpose of repairing the injury, and ex- 
 penses incurred for pilotage and other charges on the vessel leav- 
 ing the port, are also the subject of general average (k). 
 
 The law on this subject was exhaustively considered in the re- 
 cent case of Svendsen v. Wallace (I) before the House of Lords. 
 A ship on a voyage (from Rangoon to Liverpool) having sprung 
 a dangerous leak, the captain, acting justifiably for the safety of 
 the whole adventure, put into a port of refuge to repair. In port 
 the cargo was reasonably, and with a view to the common safety 
 of ship, cargo, and freight, landed in order to repair the ship. 
 The ship was repaired, the cargo reloaded, and the voyage com- 
 pleted. In an action by the shipowners against the cargo own- 
 ers, it was held that the latter were not chargeable with a gen- 
 eral average contribution in respect of the expenses of re-shipping 
 the cargo. 
 
 It is to be observed that a person who has been compelled to Remedy over 
 pay a general average contribution will generally have his remedy 
 over against the underwriters, so that they are often really 
 the interested parties in questions of general average. 
 
 Particular average is " is a very incorrect expression used to de^ Particular 
 note every kind of partial loss or damage happening either to the average, 
 ship or cargo from any cause whatever" (m). Such a loss rests 
 where it falls. The ordinary form of policy on goods contains 
 the following "memorandum" intended to protect the under- 
 writer from liability for partial losses which might be claimed in 
 respect of certain perishable commodities: — 
 
 " N.B. Corn, fish, salt, fruit, flour, and seed are warranted free The memo- 
 from average, unless general, or the ship he stranded. Sugar, tobacco, randum. 
 
 (g) Gould v. Oliver, 4 Bing. 3 M. & S. 482, and Power v. 
 
 N. C. 134 ; and see Wright v. Whitmore, 4 M. & S. 141. See, 
 
 Marwood, 7 Q. B. D. 62. too, Anderson v. Ocean Steam- 
 
 (h) 2 N. R. 378. ship Co., 10 App. Ca. 107. 
 
 (i) Birkley v. Presgrave, 1 (I) 10 App. Ca. 404. 
 
 East, 220. (jm) Abbott on Shipping (12th 
 
 (k) Atwood v. Sellar, 5 Q. B. ed), p. 497. 
 D. 286, Plummer v. Wildman,
 
 190 
 
 AVERAGE. 
 
 hemp, flax, hides, and skins are warranted free from average under 
 five pounds per cent, and all other-goods, also the ship and freight are 
 warranted free from average under three pounds per cent., unless 
 general, or the ship be stranded." 
 What is a The underwriter, then, agrees to be liable if the ship is "strand- 
 
 • 'stranding." e d.» There has been much litigation on the question, What is 
 a "stranding " ? The leading case on the point is.Wells v. Hop- 
 wood (n), where Lord Tenterden said that a vessel's taking the 
 ground "under any extraordinary circumstances of time or place, 
 by reason of some unusual or accidental occurrence," will con- 
 stitute a stranding. But it will not be a stranding if she takes 
 the ground in the ordinary course of navigation (o). Thus, in the 
 Letchford v. recent case of Letchford v. Oldham ( p), where it appeared that 
 ' Mdhain. the paddles of steamers leaving a harbour at low tide had caused 
 
 an elevation and a hole, into which the vessel had pitched, it 
 was held that there was no stranding. The striking on a rock is 
 not a stranding, unless the vessel thereby becomes stationary (q). 
 If there is a stranding, the policy applies, though the loss was 
 not really caused by it (r). 
 
 Partner ship Liability. 
 
 [82.] 
 
 WAUGH v. CARVER. 
 
 [2 H. Bl. 235 (1794).] 
 
 In February, 1790, Erasmus Carver and "William Car- 
 ver, ship-agents, of Southampton, of the one part, and 
 Archibald Giesler, ship-agent, of Plymouth, of the other 
 part, entered into a rather wide-awake agreement for 
 their mutual benefit. By the terms of this agreement 
 Giesler was to remove from Plymouth and settle at 
 Cowes. There he was to establish a house on his own ac- 
 count, which the Carvers were to puff. Giesler, on the 
 
 (n) 3 B. & Ad. 20. 
 
 (o) Kingsford v. Marshall. 8 
 Bins;. 448, and Hearne v. Ed- 
 munds, 1 B. & B. 388. 
 
 ( p) 5 Q. B. D. 538. 
 
 (q) MacDongle v. R. Exch. 
 Ass. Co., 4 Camp. 283. 
 
 (r) Per Lord Tenterden, in 
 Wells v. Hopwood, sup.
 
 PARTNERSHIP LIABILITY. 197 
 
 other hand, was to endeavour to persuade all the ship- 
 masters putting into Portsmouth to employ the Carvers. 
 Arrangements were made for sharing in certain propor- 
 tions the profits of their respective commissions, and 
 the discount on the bills of tradesmen employed by 
 them in repairing the ships consigned to them. It was 
 also expressly provided that neither of the parties to 
 the agreement should be answerable for the acts or losses 
 of the other, but each for his own. Accordingly Gies- 
 ler left Plymoth and came to Cowes, and in the course 
 of carrying on his business there he incurred a certain 
 debt to the plaintiff in this action, who now sought to 
 make the Carvers liable on the ground that the agree- 
 ment made them partners with Giesler and responsible 
 for his debts. 
 
 It was held, in spite of the clause providing that each 
 should be responsible for his own losses, that the agree- 
 ment did make the Carvers partners, for — 
 
 (1.) He who takes the profits of a partnership must 
 of necessity be made liable Tor the losses. 
 
 (The student, however, must look at the note before 
 entirely accepting this proposition.) 
 
 (2. ) He who lends his name to a partnership becomes, 
 as against all the rest of the world, a partner. 
 
 COX v. HICKMAN. [83.] 
 
 [8 H. L. C. 268 (I860).] 
 
 Messrs. Smith & Co., iron-merchants, becoming in- 
 solvent, a deed of arrangement was executed between 
 them and their creditors. By this deed Smith & Co. 
 assigned all their property to five trustees to carry on 
 the business under the name of the Stanton Iron Com- 
 pany. The trustees were to manage the works as they 
 thought fit, and to execute all contracts and instruments
 
 198 PARTNERSHIP LIABILITY. 
 
 in carrying on the business. Amongst the creditors 
 were the defendants. They subscribed and executed the 
 deed, and were both named as trustees. One of them 
 never acted at all; the other acted for six weeks and then 
 resigned. The other trustees, however, did act, and did 
 the best they could for the business. The plaintiff sup- 
 plied the company with a quantity of iron ore, and one 
 of the trustees accepted bills of exchange in the name 
 of the company for the price of it. 
 
 The question was whether the trustees were agents 
 for the defendants to accept the bills, and it was held 
 that they were not; on the ground that the persons for 
 whose benefit the business was carried on were not the 
 creditors, but Messrs. Smith & Co. The real test of 
 partnership liability, the judges said, was not partici- 
 pation in the profits, but whether the trade was carried 
 on by persons acting as the agents of the persons sought 
 to be made liable. 
 
 Persons may be partners as regards the world at large, although 
 they are not partners as between themselves; they may have all 
 Holding out. the kicks and none of the halfpence. If a man holds himself out 
 as a partner, he is liable to a person who for that reason gives 
 credit to the firm (s). The law does not prescribe any particular 
 acts which shall constitute a ^holding out"; but evidence may 
 be given of anything the defendant has done which would natur- 
 ally induce others to believe he was a partner, such acts having 
 the effect of an estoppel. A person who lends his name to a busi- 
 ness in this way, without having any real interest in it, is called 
 
 _ a nominal partner. A dormant partner, on the other hand, is one , 
 
 Dormant , , , ; *_ ' ' 
 
 partners wno c * oes no ^ appear to the world to be a partner, but who shares 
 
 the profits. 
 
 Effect of -^ "* as f°r a l° n g time thought that if it could be proved that 
 
 sharing the defendant shared the profits, he was thereby proved to be a 
 
 profits. partner. The effect of Cox v. Hickman is to destroy this doctrine; 
 
 and the law now is that, though community in the profits is 
 strong evidence of partnership, it is not conclusive. There must 
 always be an examination into the intention of the contracting 
 parties (t). 
 
 (s) Dickenson v. Valpy, 10 B. (I) See Walker v. Hirech, 27 
 & C. 140. Ch. D. 460.
 
 PARTNERSHIP LIABILITY. 109 
 
 Moreover, by an Act passed in 1865, and called Bovill's Act Partnership 
 (u), it is provided that the following agreements shall never of Law Amend- 
 themselves, be sufficient to make the contracting parties partners: — uient Act. 
 
 (1.) Lending money by written contract to a trader (a) on the Lending 
 terms of receiving interest varying according to the success of money to 
 the concern. If, however, the trader fails, the lender must wait trader, 
 till the claims of all the regular creditors have been satisfied (y). 
 
 (2.) Paying servants or agents by a share of the profits. Servants. 
 
 The section (which distinctly says '"nor give him the rights of 
 a partner") is generally an effective answer to the defence of 
 partnership so often set up before chairmen of Quarter Sessions 
 in embezzlement cases. 
 
 (3.) Widow o)' child of deceased partner receiving portion of Widow, 
 profits by way of annuity. 
 
 (4). Receiving portion of profits for sale of goodwill. g a ] e f .rood- 
 
 It must be observed, however, that the principle of Cox v. will. 
 Hickman, (which is of earlier date than the statute) would have 
 applied to all these four cases. The only effect, it has been said, 
 of the Act is to make the law to be that sharing in the profits, Bovill's Act 
 while it is always insufficient evidence to establish partnership lia- very little 
 bility, is, as to the protected classes, no evidence at all (z). usc - 
 
 Partnership is a branch of the law of agency («) ; and there- 
 fore the proper test to apply to the liability of a partner who is 
 not an actual party to a particular contract is icJiether the partner 
 who contracted did so as his agent. On this point Sandilands v. Sandilands «. 
 Marsh (b), (where it was held that a navy agent, who does not Marsh, 
 usually deal in annuities, bound his firm by guaranteeing the 
 payment of an annuity which he had purchased for a customer), 
 is a leading authority. When questions of this kind arise, refer- 
 ence should always be had to the nature and purposes of the part- 
 nership. A member of a mercantile firm, for instance, would gen- 
 erally bind the firm by accepting a bill of exchange (c); not so, 
 a member of a firm of solicitors (d). A trading firm is bound, it 
 has been held, by one of its members releasing a debt due to it, 
 or by the sale or insurance of the partnership goods by one of its 
 members (e); but a partner cannot bind his colleagues by a 
 submission to arbitration (/). Moreover, if the plaintiff was aware 
 
 («) 28 & 29 Vict. c. 86. (e) Kirk v. Blurton, 9 M. & 
 
 (x) See ex parte Delhasse, 7 W. 284, and Forbes v. Marshall, 
 
 Ch. Div. 511. 11 Ex. 166. 
 
 (y) Sec. 5. (d) Hedley v. Bainbridge, 3 
 
 (z) PerKellv, C. B., in Holme Q. B. 316, and see Garland v. 
 
 v. Hammond, L. R. 7 Ex. 218; Jacomb, L. R. 8 Ex. 211. 
 
 see also Pooley v. Driver, 5 Ch. (?) Stead v. Salt, 3 Bing.101, 
 
 I>iv. 45.-V and Hooper v. Lusby, 4 Camp. 
 
 (a) Yorkshire Banking Co. v. 66. 
 
 Beatson, 5 C. P. D. 109. (f) Adams v. Bankart. 1 C. 
 
 {b) 2 B. & Aid.; see also M. *& R. 681, and Duncan v. 
 
 Cleather v. Twisden, 28 Ch. D. Lowndes, 3 Camp. 481. 
 
 340.
 
 200 
 
 PARTNERSHIP LIABILITY. 
 
 Liability of 
 shareholders 
 
 Incoming 
 partner. 
 
 Retiring 
 partner. 
 
 Dissolution 
 of partner- 
 ship Law. 
 
 of the want of authority, even in cases where one partner might 
 naturally be expected to have authority to contract for the 
 others, he cannot recover (g). A partner is liable on partnership 
 contracts, not only to the extent of the capital he has embarked 
 in the concern, but to the whole extent of his means, unless it is 
 a partnership in a company with limited liability. As to the 
 liability of persons who have become subscribers to a company pro- 
 jeeted but not finally established, the cases of Reynell v. Lewis, 15 
 M. & W. 517, Bailey v. Macaulay, 13 Q. B. 815, Kelner v. Baxter, 
 L. R. 2 C. P. 174, and Fox v. Clifton, 6 Bing. 776, may be con- 
 sulted. Mines within the stannaries of Devon and Cornwall are ■ 
 often worked by unincorporated partnerships with transferable 
 shares on what is termed the '"cost-book" principle, aud the share- 
 holders in such a company are liable on all usual contracts for 
 goods supplied (h). 
 
 An incoming partner is not liable upon contracts made before 
 his entering the partnership (Beal v. Mouls, 10 Q. B. 976; Vere 
 v. Ashby, 10 B. & C. 288; see too Cripps v. Tappin, 1 C. & E.13). 
 
 When a person who has held himself out as a partner retires 
 from the firm, he, of course, continues liable on contracts entered 
 into before his retirement. As to contracts entered into by the 
 firm after his retirement, the rule is this : — If he has advertised 
 his retirement in the Gazette, he is not liable to persons who did 
 not deal with the firm when he was a member of it. But to prevent 
 his being liable to persons who did deal with the firm when he 
 was a member of it, advertisement in the Gazette is not sufficient ; 
 the old customers, unless aware of the retirement, being entitled 
 to express notice (i). If, however, a creditor who knows that a 
 reconstruction of the firm has taken place, elects to accept the 
 new firm as his debtors, and goes on dealing with it just as before, 
 the retiring partner is released and cannot be afterwards 
 charged (k). A dormant partner except as regards persons who 
 knew him to be a partner, need not give anybody any notice of 
 his retirement (/). 
 
 There are various ways in which a partnership may be dis- 
 solved : — 
 
 (1.) By operation of law ; 
 
 E.g., through death (in), bankruptcy (n), or conviction for 
 felony. 
 
 (2.) By agreement ; 
 
 (g) Gallway e. Mathew, 10 
 East, 264. 
 
 (h) Hawker v. Bourne, 8 M. 
 & W. 703; Ralph r. Harvey, 1 
 Q. B. 845; and see Harrisons. 
 Heathorn, 6 M. & G. 81. 
 
 (t) Farrar v. Deflinne, 1 C. & 
 K. 580. 
 
 (fc) Hart i>. Alexander, 2 M. 
 
 &W. 484; Bilborough ?•. Holmes, 
 5Ch. Div.; and Scarf n.Jardine, 
 7H. L. (E.) 345. 
 
 (/) Carter v. Whalley, 1 B. 
 & Ad. 11. 
 
 (m) Backhouse v. Charlton, 8 
 Ch. D. 444. 
 
 (n) Crawshay v. Collins, 15 
 Ves. 228.
 
 CONTRACT OF SALE. 201 
 
 E.fj., by the time fixed for the duration of the partnership Agreement 
 expiring (o). 
 
 (:;. ) By decree of a court of equity ; Decree. 
 
 E.g., where the partnership was induced by fraud (]>), or where 
 one of the partners neglects his business (q), or becomes perma- 
 nently insane (r), or is always cpuarrelling with the other part- 
 ners (s). 
 
 Contract of Sale. 
 
 TARLING v. BAXTER. . [84.] 
 
 [6 B. & C. 360 (1827).] 
 
 On January 4th, 1825, it was in writing agreed be- 
 tween Mr. Baxter and Mr. Tarling that the former should 
 sell to the latter a stack of hay then standing in Canon- 
 bury Field, Islington, at the price of £115. Payment 
 was to be made on February 4th, but the stack was to 
 be allowed to remain where it was till May Day. It 
 was not to be cut till paid for. This was held to be an 
 immediate not a prospective sale, so that when on Jan- 
 uary 20th the stack was accidentally burnt down, the 
 loss fell on Tarling the buyer. " The rule of law," said 
 Bayley, J., " is that where there is an immediate sale 
 nothing remains to be done by the vendor as between 
 him and the vendee, the property in the thing sold vests 
 in the vendee, and then all the consequences resulting 
 from the vesting of the property follow, one of which 
 is that if it be destroyed, the loss falls on the vendee." 
 
 (o) Featherstonhaugh v. Feu- 9 Hare, 556. 
 wick, 17 Ves. 298. (r) Rowlands v Evans, 30 
 
 ( ») Rawlins v. Wickham, 1 Beav. 302. 
 Giff. 355. (s) Watney v. Wells, 30 Beav. 
 
 (q) Harrison r. Tennant, 21 56, and Leary v. Shout, 33 Beav. 
 
 Beav. 482, and Smith v. Mules. 582.
 
 202 CONTRACT OF SALE. 
 
 [85.J ACRAMAN v. MORRICE. 
 
 [8 C. B. 449 (1849).] 
 
 Morrice, a timber merchant, agreed to buy from one 
 Swift the trunks of certain oak-trees belonging to Swift 
 and lying at his premises at Hadnock, in Monmouth- 
 shire. He marked out the timber he wanted and paid 
 for it, and it only remained for Swift to sever the parts 
 not tvanted and send off the rest to the purchaser. Un- 
 fortunately just then Swift became bankrupt. On hear- 
 ing of his bankruptcy Morrice rose to the occasion. He 
 sent his men to Hadnock, and had all the timber he had 
 paid for carried off. Swift's assignees, however, of 
 whom Mr. Acraman was the leading spirit, objected to 
 this proceeding, as they considered that the property 
 in the timber had not passed to Morrice, Swift not hav- 
 ing severed the boughs. This contention prevailed, 
 "Wilde, C.J., saying — "Upon a contract for the sale of 
 goods, so long as anything remains to be done to them 
 by - the seller, the property does not pass, and the seller 
 has a right to retain them. In the present case several 
 things remained to be done. The buyer, having se- 
 lected and marked the particular parts of the trees 
 which he wished to purchase, it became the seller's 
 duty to sever those parts from the rest, and to convey 
 them to Chepstow, and there deliver them at the pur- 
 chaser's wharf. . . . The property clearly had not 
 passed to the\defendant, and he was guilty of a tres- 
 pass and a conversion in possessing himself of it in the 
 way he did." 
 
 "When the subject-matter of a sale is clear and ascertained at 
 
 the time of the contract and the price is fixed, the property in 
 
 tlje thing sold with all the risks passes at once to the purchaser. 
 
 To this rule, which Tarling v. Baxter illustrates. Acramanv. Mor- 
 Something ,. .,, .. ,, , , ,, . 
 
 . s rice supplies us with an exception, viz., that u-hen somethinq re- 
 remaining. 1F l ' ' * 
 
 to be done by ma ' ns t° be done by the seller, the property does not pass. Thus, when 
 
 seller. goods, part of an entire bulk, are sold the property in such goods
 
 CONTRACT OF SALE. 203 
 
 does not pass until they are separated from the hulk, that is. 
 there must be appropriation of a specific portion (/). 
 
 Where the sale is of a chattel to be made by the seller the 
 property does not, as a general rule, pass until the chattel is ac- 
 tually made and approved by the buyer. But the question 
 whether or no the property had passed is purely one of intention, 
 to be collected from all the circumstances. A Mr. Pocock or- Mucklow v 
 dered a boat-builder to build him a barge. The boat-builder set Mangles, 
 about it; he was paid money on account as the work proceeded, 
 and by and by the name of Mr. Pocock duly appeared painted 
 on the stern. In spite of all this, it was held that the property 
 in the barge had not passed, and, the boat-builder having be- 
 come bankrupt, that it belonged to his assignees (a). With this 
 may be usefully compared a somewhat later case (x), in which a Clarke v. 
 ship-builder agreed to build a ship for a firm of merchants, the Spence. 
 building as it proceeded to be superintended by an agent of the 
 merchant's firm. A price was fixed, and it was arranged that 
 payment should be made by instalments regulated by particular 
 stages in the progress of the work. The court held that the 
 property in the materials vested in the purchaser at the time 
 when they were put together under the approval of the superin- 
 tendent, or, at all events, when the first instalment was paid. 
 Here, the fact of the superintendence by the purchasers' agent 
 would seem important to show an intention to pass the property 
 as the work proceeded, for, otherwise, when one vessel had been 
 nearly constructed the superintendent might have been called 
 upon to begin dc novo and superintend the building of a second. 
 
 It is to be noted that, although the property in a chattel may p . 
 
 be in the vendee, so as to make the loss fall on him if the thing -without 
 were to perish, yet he may not be entitled to possession. Thus, in possession, 
 case last quoted, we have seen that the property in the materials 
 passed to the purchaser as the building of the ship proceeded, 
 but the builder, nevertheless, had a right to retain the fabric in 
 order to complete it and earn the rest of the price. So, too, in a 
 ready-money sale the vendor has a lien for the price. But, when 
 goods are sold on credit, and nothing is said as to the time of de- 
 livery, the purchaser is entitled to immediate possession, both 
 the right of property and the right of possession vesting in him 
 at once. 
 
 (i) Dixon v. Yates, 5 B. & & E. 470, and see Inglis v. 
 
 Ad. 313. Stock, 10 App. Ca. 263, which 
 
 (w) Mucklow v. Mangles, 1 was a great figh^t about the lia- 
 
 Taunt. 318, and see Atkinson v. bility of underwriters for the 
 
 Bell, 8 B. & C. 277. loss of a quantity of sugar going 
 
 (x) Clarke r. Spence, 4 Ad. from Hamburg to Bristol.
 
 204 STOPPAGE IN TRANSITU. 
 
 Stoppage in Transitu. 
 
 [86.] LICKB ARROW >: MASON. 
 
 [2 T. R. G3 (1788).] 
 
 Freeman, of Rotterdam, sen«t an order to Messrs. 
 Turings, of Middleburg, to ship a quantity of corn to 
 Liverpool. This order Messrs. Turings were rash 
 enough to execute; for they then considered Freeman 
 to be, if not "the richest merchant in Rotterdam," at 
 all events, a safe and solvent person. On July '22nd, 
 1786, Messrs. Turings put the corn on board the ship 
 " Endeavour," whereof the master was a Mr. Holmes. 
 It is the duty of a master when he sets out on a voy- 
 age like this to sign bills of lading, by way of acknow- 
 ledging that he has got the goods on board. Holmes 
 signed four of these bills of lading (usually, it may be 
 remarked, only three are signed); and of the four one 
 he pocketed, two were endorsed in blank by Turings 
 and Co. and sent to Freeman with an invoice of the 
 goods shipped, and the fourth was retained by Messrs. 
 Turings. 
 
 The sound ship "Endeavour" had not set sail very 
 long when tidings came to the ears of the Turings that 
 Freeman had become bankrupt. Rising to the occa- 
 sion, they immediately sent off the bill of lading that 
 remained in their custody to Messrs. Mason and Co., 
 of Liverpool, with a special indorsement to deliver the 
 corn to them for Messrs. Turings' benefit. Pursuant 
 to this special indorsement, Mr. Holmes, when he ar- 
 rived at Liverpool, delivered his cargo to the Masons. 
 In the meantime, however, and before he became bank- 
 rupt, Freeman had sent his two bills of lading to 
 Messrs. Lickbarrow duly negotiated for a valuable 
 consideration. Messrs. Lickbarrow, therefore, were
 
 STOPPAGE IN TRANSITU. 205 
 
 anything but pleased to find that Mason and Co. had 
 got hold of the corn, and they brought this action to 
 try and make them give it up. In this they were suc- 
 cessful. Judgment was given for the plaintiffs, on the 
 ground that a bond fide assignment of the bills of lad- 
 ing defeats the vendor's right to stop in transitu. 
 
 The unpaid vendor of goods has a right, on the insolvency of 
 the vendee, to stop the goods and retake possession of them while 
 on their way. The right to stop is personal to the vendor ; and yv] 1() may 
 cannot, for example, be exercised by a surety lor the price of the stop, 
 goods (y). But, any time before the transitus is over, the vendor 
 may ratify the act of a stranger who has stopped the goods (z) ; 
 and a person who sends goods to be sold on the joint account of 
 himself and his consignee may stop (a). The vendor may retake 
 the goods though he holds the consignee's acceptance, and with- 
 out returning the bill (It). 
 
 In most stoppage in transitu cases the difficulty is to know 
 whether the journey was at an end or not. The principle to be ^he transi- 
 deduced from the case is that the transitus is not at an end till the tus. 
 goods have reached the place named by the buyer to the seller as 
 the place of their destination (c), even though the goods be car- p , 
 ried in a ship chartered by the buyer (it). If, however, the ship is su jp. 
 the buyer's own, the goods cannot generally be taken (e). And, 
 though the goods remain in the hands of the carrier, the transitu* 
 may nevertheless be over ; as, for instance, where the vendee pays 
 the carrier a rent for warehousing (/), or where he has done some- 
 thing equivalent to taking possession (g). The transitus, how- 
 ever, is not determined by the goods arriving at an intermediate Arrival at 
 stage, unless they are to be thenceforward at the orders of the intermediate 
 buyer and in the hands of persons who are to keep them for station. 
 
 him (/(). The vendee may shorten the transitus bv going out to meet , r , 
 
 v ' •' J ° ° Vendee meet- 
 
 the goods and taking them from the carrier ; but a mere demand, j n cr <r ods. 
 
 even though backed by the production ot a delivery order, will 
 
 (y) Siffken v. Wray, G East, Cilgwyn Slate Co., 55 L. J., Q. 
 
 371. B. D. 67. 
 
 (z) Bird v. Brown, 4 Ex. 78G. (e) Schotsmans v. Lane, &c, 
 
 (a) Xewsom v. Thornton, 6 Ry. Go., L. R. 2 Ch. 332. 
 East, 17 ; and see Feise v. Wray, (/) Dixon v. Baldwen, 5 East, 
 3 East, 93. 174, and see ex parte Barrow, 6 
 
 (b) Edwards v. Brewer, 2 M. Ch. D. 783, and Miles's Case, 
 & W. 375. . 15 Q. B D. 39. 
 
 (c) Coates v. Railton, 6 B. & (g) Ellis v. Hunt, 3 T. R. 
 C. 427. 464 ; and see Foster v. Framp- 
 
 (d) Berndtson v. Strang. L. ton, 6 B. & C. 107. 
 
 R. 3 Ch. 588 ; and see ex parte (h) Smith v. Goss, 1 Camp. 
 
 Rosevear China ' Clay Co., re 282, and Mills v. Ball, 2 B. & 
 
 Cock, 40 L. T., and Brindley v. P. 457. 
 15 COMMON LAW.
 
 206 
 
 STOPPAGE IN TRANSITU. 
 
 -How to stop. 
 
 Stopping or 
 
 delivering 
 
 part. 
 
 Assignment 
 of bill of 
 lading. 
 
 Kemp v. 
 Falk. 
 
 Effect of 
 stopping. 
 
 Bills of 
 lading. 
 
 Sewell r. 
 Eurdick. 
 
 not be sufficient to defeat the right to stop (/). On the other 
 hand, the carrier may not prolong the transit so as to give the ven- 
 dor an increased right of stoppage. 
 
 To stop the goods, it is not necessary for the vendor to lay cor- 
 poreal touch on them. It is sufficient if he gives notice to those 
 who hare the immediate custody of the goods ; or, if to their employ- 
 ers, so that they may have reasonable time to communicate with 
 such persons (k). 
 
 The stopping of part of the goods consigned has no effect on the 
 remainder, though the contract is entire (/). On the other hand, 
 the delivery of a pari of goods sold under one entire contract, if 
 such delivery of part was inteuded to represent the whole, ivill 
 defeat the right to stop (in). 
 
 The most usual way, however, in which the vendor's right is 
 defeated is by assignment of the bill of lading to a bond fide as- 
 signee for a valuable consideration. An assignment, however, by 
 the consignee of the bill of lading by way of pledge will not de- 
 feat the vendor's right, subject to the pledge (»). And in the 
 recent case of Kemp v. Falk (o) it was held that when the pur- 
 chaser of goods has resold them, though the vendor loses by the 
 re-sale the right to stop the goods themselves in transitu, he. is en- 
 titled, if he gives what would have been a valid notice had there 
 been no re-sale, to intercept, to the extent of his own unpaid pur- 
 chase money, so much of the sub-purchaser's purchase money as 
 remains unpaid by him. 
 
 The effect of stoppage in transitu is not to rescind the contract, 
 but to give the vendor a lien on the goods (p). 
 
 A recent case on bills of lading, which illustrates the inconve- 
 nience of the present system of having so many of them for the 
 same lot of goods, is Glyn v East and West India Dock Co. (q), 
 an action for conversion against warehousemen who had, in a 
 perfectly straightforward manner, delivered up some goods on 
 the production of the second bill, contrary to the interests of the 
 plaintiffs, who were indorsees for valuable consideration of the 
 first. The defendants were held not guilty of conversion. 
 
 In Sewell v. Burdick (r), it was held that the mere indorse- 
 ment and delivery of a bill of lading by way of pledge for a loan 
 does not pass the property in the goods to the indorsee so as 
 transfer to him all liabilities in respect of the goods within the 
 meaning of the Bills of Lading Act (18 & 19 Vict., c. Ill), s. 1. 
 
 (i) Whitehead r. Anderson, 9 
 M. & W. 518 ; and see Coven- 
 try r. Gladstone, L. R. 6Eq. 44. 
 
 (/.■) Whitehead v. Anderson, 
 supra. See also Phelps v. 
 Combes. 29 Ch. D. 813. 
 
 (/) Wentworth v. Outhwaite, 
 10 M. & W. 43G ; and see Jones 
 v. Jones, 8 M. & W. 431. 
 
 (in) Sulbey r. Hey ward. 2 H. 
 Bl. 504 ; t'rawshay v. Eades, 1 
 
 B. Sc C. 181 ; and ex parte Coop- 
 er, In re M'Earen. Ch. D. 
 
 (ft) In re Westzinthus, 5 B. & 
 Ad. 817, and Spalding v. Rud- 
 ing. 6 Beav. 376 : but see Leask 
 v. Scott, 2 Q. B. I). 376. 
 
 (o) 7 App. Ca. 573. 
 
 (//) Clay v. Harrison, 10 B. & 
 
 C. 106. 
 
 (q) 7 App. Ca. 591. 
 (r) 10 App. Ca. 74.
 
 CONTRACT TO MARRY. >07 
 
 Contract to Marry. 
 
 ATCHTNSON v. BAKER. [87.] 
 
 [Peake Add. Ca. 103 (1797).] 
 
 Mrs. Baker yielded to the persuasions of Mr. Atchin- 
 son and promised to marry him. But before the happy 
 day came she was disgusted to find — so she said — that 
 her lover had an abscess on his breast; and she imme- 
 diately vowed that she would never link herself to such 
 a putrid moss of corrupting humanity. Mr. Atchinson 
 brought an action for breach of promise, and the trial 
 elicited some valuable remarks from Lord Kenyon : "If 
 the condition of the parties is changed after the time 
 of making the contract it is a good cause for either 
 party to break off the connection. Lord Mansfield has 
 held that if, after a man has made a contract of mar- 
 riage, the woman's character turns out to be different 
 from what he had reason to think it was, he may refuse 
 to marry her without being liable to an action, and 
 whether the infirmity is bodily or mental, the reason is 
 the same; it would be most mischievous to compel par- 
 ties to ruarry who can never live happily together." 
 
 In spite of the dictum just quoted, it is doubtful if a defendant 
 can ever get out of his promise to marry by disparaging himself. 
 In Hall v. Wright (s) the defendant pleaded that since his prom- Hall v. 
 ise he had become afflicted with a dangerous bodily disease, Wright, 
 which had occasioned frequent and severe bleeding from the 
 lungs, and, in short, that he was totally unfit for marriage. But 
 the judges festively told him that perhaps the lady might like to be 
 his widow, and that his plea was no answer to the action. To get 
 out ot his promise the defendant should level his abuse, not at 
 himself, but at the plaintiff. If, for example, after he has i;iven Defences to 
 action. 
 
 (s) E. B. & E. 746.
 
 208 
 
 CONTRACT TO MARRY. 
 
 Exoneration. 
 
 his promise he discovers (and evidence of general reputation is 
 admissible! [t) that the plaintiff is a person of poor morality (u), 
 or if the promise was induced by the plaintiff's material mis- 
 representations as to her family, position, or previous life (x), he 
 has a good defence. But it will not be a defence to show that at 
 the time he promised to marry the plaintiff he did not know that 
 she had been in an asylum (y), or engaged to another man (s). 
 Most of the defences which are open to men are open to women, 
 too; but, of course, it would be necessary for a woman defendant 
 to fix the plaintiff with much more than mere sexual immorality 
 before she would be entitled to disregard her promise. It will 
 be a good detence. also, to an action against a woman that, after 
 she had made the promise, the plaintiff manifested a violent 
 temper, and threatened to ill-use her (n). 
 
 Another defence to an action for breach of promise is that the 
 thing was off. This exoneration from the promise may be im- 
 plied from the conduct of the parties: if, for instance, there has 
 been neither intercourse nor correspondence for a year or two, 
 the jury would naturally draw the inference that there was an 
 end of the engagement, even though the amorous letters were 
 not returned (b). 
 
 A promise to marry need not be in writing (c), but the plain- 
 tiff's testimony must be cor rob or a led by some other material evi- 
 dence {(1). Not long ago a woman overheard a conversation be- 
 tween her sister and a man, in the course of which the sister ex- 
 claimed. "Yon always promised to marry me, but you never keep your 
 word." Instead of indignantly denying that he had ever made 
 such a promise, the man remained silent. This eavesdropper's 
 evidence was held sufficiently "corroborative" in the action 
 which her sister soon afterwards brought (e). 
 
 A married man may be sued on a promise to marry, if the wo- 
 married man man did not know he was married (/). 
 
 actionable. T , -, , . . ,. „ T , _ 
 
 raney damages may be given in an action for breach of prom- 
 ise ; e.g., the defendant's pecuniary position, and the girl's 
 wounded feelings, may be taken into account (g). In fact, the 
 measure of damages is rather as if the action were in tort than 
 in contract. 
 
 Corrobora- 
 tion. 
 
 Promise by 
 
 Damages. 
 
 (I) Foulkes v. Sellwav, 3 Esp. 
 236. 
 
 (w) Irving v. Greenwood, 1 C. 
 & P. 350. 
 
 (x) Wharton r. Lewis, 1 C. & 
 P. 529. 
 
 (y, Baker r. Cartwnght, 10 C. 
 B., N. S. 124. 
 
 (z) Beechey v. Brown, E. B. 
 & E. 796. 
 
 (a) Leeds v. Cook, 4 Esp. 258. 
 
 (b) Davis v. Bomford, 6 H. & 
 N. 245. 
 
 (c) Harrison v. Cage. Ld. 
 Kavm. 387. 
 
 (d) 32 & 33 Vict. c. 68, s. 2. 
 (c) Bessela v. Stern, 2 C. P. 
 
 D. 265 
 
 (/ ) Wild v. Harris, 7 C.B. 999. 
 
 (g) Smith v. Woodfine, 1 C. 
 B.,N. S. G60, and Berry v. Da 
 Costa, L. R. 1 C. P. 331.
 
 RECOVERY OF MONEY PAID UNDER MISTAKE, ETC. 209 
 
 Recovery of Money Paid under Mistake, &c. 
 
 MARRIOTT v. HAMPTON. [88.] 
 
 [7 T. II. 269 (1797).] 
 
 This case should impress the student with the 
 wisdom of taking care of the receipt when he pays his 
 tailor's bill. Hampton, possibly, was not a tailor, but 
 he was no doubt a tradesman of some sort, and in the 
 course of his trade sold goods to Marriott. These Mar- 
 riott duly paid for and obtained a receipt. But, in- 
 stead of carefully putting it where he could find it if 
 he wanted it he put it where he could not find it. 
 By and by Hampton, — relying, it may be, on his 
 knowledge of Marriott's careless habits, — sent in his 
 bill again with the air of a long suffering and ill-used 
 creditor. Marriott had a distinct recollection of hav- 
 ing paid for the trousers and said so. Hampton, how- 
 ever, challenged him to show paper, and though Mar- 
 riott looked high and low for the document, it could 
 not be found, and, as Hampton brought an action, he 
 was obliged to pay over again. 
 
 But after a while the missing receipt turned up, and 
 Marriott now went to law with the tradesman to force 
 him to repay the money. The student will be grieved 
 to hear that his efforts were not crowned with the suc- 
 cess they deserved. Lawyers must live, of course; but 
 interest reipublicce ut sit finis litium, and there would 
 be no end to fat contentions and flowing fees if every- 
 body could have their cases tried over again when fresh 
 evidence came to light 
 
 Money paid under a MISTAKE OF FACTS, and which the party Jgnoraiia 
 receiving it has no claim in conscience to retain, is recoverable as facti excused. 
 money paid without consideration. Ignorantia facti excusat. 
 Two persons once agreed to dissolve partnership, and one of
 
 210 
 
 RECOVERY OF MONEY TAID UNDER MISTAKE, ETC. 
 
 Pnrrant p. 
 Ecclesiasti- 
 cal Commis- 
 sioners. 
 
 Chambers v. 
 
 Miller. 
 
 them paid to the other a sum of money for his share, on the foot- 
 ing of an investigation lie had made of the partnership accounts. 
 He afterwards discovered that the profits were not so great as he 
 had supposed them to be, so that he had paid too much for the 
 share. This being a mistake of fact, it was held that, in spite 
 of his carelessness in not having sufficiently looked into the mat- 
 ter, he could recover the sum paid in excess (ft). And money so 
 paid in ignorance may be recovered back, though the defendant 
 cannot be put in statu quo (i). In a recent case it appeared that 
 a man in Norfolk had by mistake paid to the Ecclesiastical Com- 
 missioners, who were owners of the tithes of the parish, tithe 
 rent-charge in respect of lands not in his occupation. He 
 did not discover his mistake till the two years limited by 6 & 7 
 Will. IV. c. 71 for the recovery of a tithe rent-charge had ex- 
 pired, and the Ecclesiastical Commissioners had consequently 
 lost their remedy for the arrears against the lands actually 
 chargeable. It was held, however, in an action brought by this 
 man against the Commissioners, that he was not bound to find 
 out his mistake within any particular time, and that, having 
 found it out, he could recover the money (A). Moreover, money 
 paid in bond fide forgetfulness of a fact once known to the plain- 
 tiff, under a "blind suspicion " of the facts, or in the hurry of 
 business, can be got back (f). 
 
 It is not, however, every seeming mistake of fact which will 
 enable a party to recover money paid in ignorance. Where, for in- 
 stance, bankers cash a customer's cheque, and then discover that 
 they have no assets of his, they cannot recover the money back 
 from the person to whom they have paid it (m). In such a case 
 the bankers by a very moderate amount of enquiry might have as- 
 certained that the cheque presented to them ought not to be hon- 
 oured, and therefore there was really no mistake. "All the 
 facts," said Williams, J., "are precisely as the cashier appre- 
 hended them. There is no mistake. It may be that if the 
 cashier had at the time been aware of the state of the customer's 
 account, he would not have paid the cheque. But if we were to 
 go into all the remote considerations Iry which parties may be in- 
 fluenced, it would be opening a very wide field of conjecture, 
 and would lead to infinite confusion and annoyance." 
 
 A contract based on a misapprehension of facts by both jutrfies 
 is void, and money paid under it may be recovered (u). 
 
 (h) Tovrnsend r. Crowdy, 8 
 C. T;., N. S. 477; Milnes v. 
 Duncan, G B. & C. 671; and 
 Lucas r. Worswick, 1 M. & 
 Rob. 293. 
 
 (i) Brandish v. Ross, 3 Ex. 
 527. 
 
 (/.) Durrant v. Eccl. Comm., 
 6 Q. B. D. 234, distinguishing 
 Cocks v. Masterman, 9 B. & C. 
 
 902. 
 
 (?) Kelly v. Solari, 9 M. & 
 W. 54. 
 
 (mi) Chambers ?>. Miller, 13 
 C. B., N. S., 125; Aiken v. 
 Short, 1 H. & X. 210; and see 
 Pollard v. Bank of England, L. 
 R. 6 Q. B. 623. 
 
 (n) Cochrane v. Willis, L. R. 
 1 Ch. 58.
 
 RECOVERY OF MONEY PAID UNDER MISTAKE, ETC. 211 
 
 A mistake-as to the person with whom he is dealing will sometimes Mistake us to 
 
 relieve a party from the necessity of performing his contract, person one is 
 
 Jones, who had been in the habit of dealing with Brocklehurst, dealing with. 
 
 a pipe-hose manufacturer, sent him an order for 50 feet of leather 
 
 hose. It happened that that very day Brocklehurst had been 
 
 bought out by his foreman, Boulton, who executed the order and 
 
 sent the goods to Jones, without giving him notice that the goods 
 
 were supplied by him and not by Brocklehurst. It was held 
 
 that Boulton could not maintain an action against Jones for the 
 
 price (0). 
 
 The grounds for equitable relief in the case of mistakes of fact Keliei* in 
 are " that mistake or ignorance of facts in parties is- a proper equity, 
 subject of relief only where it constitutes a material ingredient 
 in the contract of the parties, or disappoints their intention by a 
 mutual error; or where it is inconsistent with good faith, and 
 proceeds from a violation of the obligations which are imposed 
 by law upon the conscience of either party. But where each 
 party is equally innocent, and there is no concealment of facts 
 which the other party has a right to know, and no surprise or 
 imposition exists, the mistake or ignorance, whether mutual or 
 unilateral, is treated as laying no foundation for equitable inter- 
 ference" (]>). 
 
 Money paid with a knowledge of all the facts but under a iqnoranlia 
 mistake OF THE LAW, or, like Mr. Marriott, by compulsion of legis non 
 legal proceedings, cannot in general be recovered back, there be- excusat. 
 ing nothing against conscience in the other retaining it. Igno- 
 rantia juris non exeusat. A ship captain brought home in his ship Timrina the 
 a quantity of treasure, and, when he got to England, paid over a Admiral, 
 certain portion of it to the admiral under whose convoy he had 
 sailed; not. if you please, in a spirit of gratitude, but believing 
 that lie was bound by lain to pay it. But he wasn't; and, when he 
 found that out, he brought an action to try and get it back again. 
 But it was held he could not get it back again, for he had gone 
 wrong in his law, not in his facts (q). " Every man," said Lord 
 Ellenborough, in Bilbie v. Lumley (r), (where an underwriter 
 tried to get back some money he had paid as for a loss, saying he 
 had not understood the legal effect of a particular document) 
 "must be taken to be cognisant of the law ; otherwise there is no say- Everybody 
 ing to what extent the excuse of ignorance might not be carried. It knows the 
 ■ would be urged in almost every case." aw ' 
 
 In Miles v. Scotting (s), it was held by Stephen, J., that the 
 doctrine that money paid under a mistake cannot be recovered 
 
 (o) Boulton v. Jones, 2 H. & Pott, 4 H. & N. 759, and Rog- 
 
 N. 564, followed in the Ameri- ers v. Ingham, 3 Ch. Div. .'551. 
 
 can case of Boston Ice Company O) 2 East, 469. See, how- 
 
 v. Potter, 123 Mass. 28. ever, ex parte Simmonds, 34 W. 
 
 (p) Snell's Equity, p. 377. R. 421, and remarks of Lord 
 
 (if) Brisbane r. Dacres, 5 Esher, M. R. 
 
 Taunt. 143; and see Barber v. (s) 1 C. & E. 491.
 
 212 
 
 RECOVERY OF MONEY PAID UNDER MISTAKE, ETC. 
 
 Abuse of 
 legal process. 
 
 Landsdowne 
 v. Lands- 
 downe. 
 
 Other cases. 
 
 baek unless the mistake he one of fact, applies even though the 
 person receiving the payment be one of the persons authorising 
 it to be made. 
 
 It is to be observed, however, that to make money paid under 
 compulsion of legal proceedings irrecoverable, the proceedings 
 must be regular, and not a mere cloak for extortion. A person 
 named Collins, who was quite insolvent, had the impudence to 
 arrest a continental duke for an imaginary debt of £10,000. The 
 continental duke was incontinently frightened — probably he had 
 heard that debtors in England Avere always ordered off to instant 
 execution — and paid £500 for his release. He afterwards brought 
 an action to recover the money, and was held entitled to do so (i). 
 "It is clear," said Coleridge, J., "that, if money be paid with 
 full knowledge of facts, it cannot be recovered back. It is clear, 
 too, that if there be a bond fide legal process, under which money 
 is recovered, although not actually due, it cannot be recovered 
 back, inasmuch as there must be some end to litigation. That 
 is the substance of the decisions. But no case has decided that, 
 when a fraudulent tise has b<en made of legal process, both parties 
 knowing throughout that the money claimed was not due, the 
 party paj'ing under such process is not to have the assistance of 
 the law." 
 
 So, resting on the ground of a presumption that there must 
 have been fraud or undue influence of some kind, there is a well 
 known doctrine of equity that if a person, acting in ignorance 
 of a clear and elementary principle of Ian; parts with a portion of his 
 property, he will be relieved from the consequences of his mis- 
 take. Thus, in Landsdowne v. Landsdowne (u), an uncle having 
 a difference of opinion with the son of his elder brother as to the 
 right to inherit an estate, they both agreed to go by the decision 
 of the schoolmaster. That worthy person, acting on the maxim 
 that "land cannot ascend, but always descends,' 1 '' pronounced in 
 favour of the uncle ; but it was held that, the mistake being so 
 great as to suggest fraud, the nephew was entitled to relief 
 "Where, however, the mistake arises on a doubtful point of law, 
 aiair compromise will be upheld; and it is on this ground that 
 the whole doctrine of the validity of family compromises of 
 doubtful rights rests. But in such cases there must be a full 
 communication of all the material circumstances known (.<). 
 
 The following cases may also be referred to on the subject- 
 matter of this note :— Reg. v. Prince, L. R. 2 C. C. R. 154; Fos- 
 ter v. Mackinnon, L. R. 4 C. P. 704; Mitchell v. Lapage, Hoi?, 
 N. P. 253; Hunter v. Walters, 7 Ch. 75; Freeman v. Jeffries, L. 
 R. 4 Ex. 189 ; Turner v. Turner, 14 Ch. D. 829; and Green v. 
 Duckett, 11 Q. B. D. 275. 
 
 (0 Cadaval v. Collins, 4 A. & (x) Gordon v. Gordon, 3 
 E. 858. Swanst, 463. 
 
 (u) 2 Jac. & Walker, 205.
 
 SUING BEFORE THE DAY OF PERFORMANCE. 213 
 
 Suing Before the Day of Performance. 
 
 HOCHSTER v. DE LA TOUR. [89.J 
 
 [2 E. & B. 678 (1853).] 
 
 Mr. de la Tour, meditating a visit to the Continent, 
 engaged Hochster as bis courier at £10 a month, the 
 service to commence on June 1st. Before that day came, 
 however, Mr. de la Tour altered his mind, and told Hoch- 
 ster he did not want him. Without wasting words or 
 letting the grass grow under his feet, and before June 
 1st, Hochster issued bis writ in an action for breach of 
 contract. For De la Tour it was argued that Hochster 
 should have waited till June 1st before bringing his 
 action, for that the contract could not be considered to 
 be broken till then. It was held, however, that the 
 contract had been sufficiently broken by De la Tour's 
 saying definitely that he renounced the agreement. 
 
 Generally speaking, no action for the breach of an executory 
 contract can be brought till the day of performance arrives. But 
 if one of the parties puis it out of his power to perform it, or ex- 
 pressly renounces the contract, the day of performance need not be 
 waited for. 
 
 If a young lady agrees to marry me on May 10th, and, in de- Putting it 
 fiance of that arrangement, marries Jones on April 1st, I may out of power 
 bring an action agaidst her as soon as I like after April 1st, al- to perform, 
 though it is quite on the cards that before May 10th, comes she 
 may be a widow and quite at my service (»/). 
 
 So, too, of an express renunciation. A few days ago a man told Distinct re- 
 his girl that, though he could not do so immediately, he would Puliation. 
 marry her directly his father died. Soon afterwards he repented of 
 this promise, and, in the lifetime of his father, told the young 
 lady frankly that he retracted his promise, and did not intend 
 ever to marry her. The judges, following Hochster v. De la Tour, 
 decided that the contract was broken immediately on the defend- 
 
 (y) Short v. Stone, 8 Q. B. 358.
 
 214 SUING BEFORE THE DAY OF PERFORMANCE. 
 
 ant's renouncing it in the brazen-faced way he did (a). The re- 
 nunciation however, to entitle the plain! iff to sue, must be pre- 
 cise and clear (a). 
 Exoneration In an ;u ' llon 1(,r not accepting, or for not delivering, goods ac- 
 hy breach. cording to contract, it often becomes a practical question whether 
 a partial breach by one party exonerates the other from further 
 performance. In Simpson v. Crippin (b), where goods were to be 
 delivered by the defendant to the plaintiff in twelve equal monthly 
 parcels, it was held that the refusal, only, of the plaintiff to 
 accept the first parcel did not exonerate the defendant from de- 
 livering the remaining parcels. And in Freeth v. Burr (c), where 
 the delivery was to be by two equal parcels, the defendant was 
 held not to be released from the delivery of the second parcel by 
 the plaintiff having refused to pay for the first in accordance with 
 the contract. The true question in each case is whether (he con- 
 duel of the one party amounts or not to an intimation oj intention to 
 abandon and altogether refuse performance [d). In America the law 
 appears to be fairly settled in accordance with the decision in 
 Simpson v. Crippin— viz., that, in the absence of any expressed 
 intention of the parties, a contract for the sale of goods by suc- 
 cessive deliveries is severable, and the failure to accept or deliver 
 one instalment does not entitle the other party to refuse delivery 
 or acceptance of the instalments that remain (e). 
 
 [90.] 
 
 DlscJiarge of Servants. 
 
 TURNER v. MASON. 
 [14 M. &W. 112 (1845).] 
 
 Turner was housemaid in the defendant's service. 
 Her mother became ill and likely to die, and Turner 
 asked her master's permission to go and see her. Mason 
 refused it ; so the girl went without it. For this diso- 
 bedience Mason dismissed her, and she now brought an 
 
 (z) Frost v. Knight, L. R. 7 upon a refusal by one, party to 
 
 Ex. Ill ; and see Cherry v. perform a particular covenant 
 
 Thompson, L. R. 7 Q. B. 579, the other cannot put an end to 
 
 and Roper v. Johnson, L. R. 8 the contract in its entirety. 
 
 C. P. 167. (b) L. R. 8 Q. B 14, overrul- 
 
 («) See Avery v. Bowden, 6 ing Hoare v. Rennie, 5 H. &N. 
 
 E. & B. 962. In Johnstone v. 19, and see Houck v. Muller, 7 
 
 Milling, 55 L. J., Q. B. D. 162, Q. B. 92. 
 
 it was "" quasred*" whether the (e) L. R. 9 C. P. 208. 
 
 doctrine of the leading case as (d) Mersey Steel and Iron Co. 
 
 to anticipatory breach of con- v. Naylor, 9 App. Ca. 434. 
 
 tract applies to a covenant in a (e) Benj. on Sale (3rd ed.) p. 
 
 lease containing many cove- 589. 
 nants, or to any case where
 
 DISCHARGE OF SERVANTS. 215 
 
 action for wrongful dismissal, urging that it was a 
 moral duty to go and visit a dying mother. Judgment, 
 however, was given for the defendant, on the ground 
 that the girl had been guilty of wilful disobedience, for 
 which her master had a right to dismiss her. 
 
 Similarly, a master has been held to be justified in dismissing Disobedi- 
 a servant where a farm servant refused to work at dinner time ( /), ence. 
 or refused to work during harvest without beer {g)\ where a 
 sailor refused to work the ship except to an English port (/<); and 
 where the messman of a regiment refused to send up dinner (i). 
 On the other hand, a servant is entitled to disobey unlawful com- 
 mands. "If the plaintiff's wife," said Parke, B., in one case (A:) 
 "had been requested to work during church time [at the trade 
 of a dyer], and had obstinately refused, that would have been to 
 her credit." And occasional disobedience in matters of trifling 
 importance, such as not answering a bell, or stopping at one hotel 
 when told to stop at another, will not warrant a master in dis- 
 missing without notice (/), though, of course, he will take the 
 earliest opportunity of terminating so unsatisfactory a connection. 
 
 In addition to the case of wilful disobedience, a servant may 
 be discharged without wages or notice in the following cases: — 
 
 (1.) "When he has been guilty of gross moral misconduct. Misconduct. 
 
 Of course, morality is matter of degree and opinion ; what a 
 man of the world would treat lightly, an old maid might con- 
 sider very wicked. But about some things everybody would 
 agree. Thus, if a servant is in the habit of getting drunk (///), 
 or robs his master (n), or tries to ravish the cook (o), he can be 
 turned out of the house at once. Whether a maid-servant can 
 be discharged for pregnancy (;>), or a man-servant for becoming 
 the father of a bastard (q), is more doubtful. It is not any ex- 
 cuse that the immorality was not in any way connected with 
 the master's business, and could not prejudice it. But the dis- 
 covery of a servant's dishonesty in a previous situation is not 
 alone sufficient ground of dismissal (r). 
 
 The recent case of Pearce i». Foster (s) was an action for wrong- 
 
 (/) Spain v. Arnott, 2 Stark. (m) Wise v. Wilson, 1 C. & 
 
 256. K. 662. 
 
 {g) Lilley v. Elwin, 11 Q. B. (») Baillie v. Kell, 4 Ping. X. 
 
 742. C. 638. 
 
 (h) Eenno v. Bennett, 3 Q. B. (o) Atkin v. Acton, 4 C. & P. 
 
 768. 208. 
 
 (i) Churchward v. Chambers, ( p) Connors v. Justice, 13 Ir. 
 
 2F. & F. 229. C. L. R. 451. 
 
 (k) Jacquot v. Bourra, 7 (<y) E. v. Welford, Cald. ">7. 
 Dowl. 348. (r) Andrewes v. Garstin, 31 
 
 (/) Callo v. Brouncker, 4 C. L. J., C. P.. 15. 
 & P. 518. (s) 53 L. T., N. S. 867.
 
 216 DISCHARGE OF SERVANTS. 
 
 ful dismissal. The defendants were general merchants and com- 
 mission agents, and the plaint ill' had been their confidential clerk. 
 They dismissed him because they found that he was speculating 
 in a wild sort of way on the Stock Exchange, and, although he 
 had continued to discharge his duties in a thoroughly efficient 
 manner, they did not feel that they could repose further confi- 
 dence in him. It was held that the defendants were perfectly 
 justified in having dismissed him. "If a man," said Grove, J., 
 ' ' goes to literary meetings, or does anything which he fairly may 
 do in his leisure hours, that would not be anything like ground 
 for dismissal ; but a man dealing beyond his means, speculating, 
 as it has been proved, to such an enormous extent, and employ- 
 ing his time in constantly finding out how he may make gains 
 by these speculations in differences, appears to me to be a man 
 who is totally unfit for such an employment as he undertook to 
 carry on, and I have not the slightest doubt that a reasonable 
 and prudent man would never have thought of employing a man 
 in that position. . . . His conduct with regard to the mat- 
 ter and his secrecy — for I am of opinion that it was kept from 
 his employers — was wholly inconsistent with the nature of the 
 service which he was to perform, and, therefore, if it is necessary 
 to go within the literal words used by learned judges in these 
 cases, I think he was thereby guilty of such moral misconduct 
 as is a good ground of discharge. I am of opinion that it was a 
 breach of moral duty to engage himself in such speculations at 
 such a risk, and that it was incompatible and inconsistent with 
 his employment, and that no employer ought to be expected to 
 keep a servant w T ho so conducted himself. There is no evidence 
 of it, but it would also, in my judgment, tend, and tend very 
 much, to bring the employers' character and business into disre- 
 pute, because, if it were known that a clerk in a respectable firm, 
 doing a large and important business, was perpetually on the 
 Stock Exchange speculating in differences and dealing in this 
 way, it appears to me it was calculated to bring the business into 
 disrepute, and to seriously injure the status of his employers 
 and their business. I have taken time to consider the case, be- 
 cause it appears to me to be quite a new case. There is no case 
 which is directly in point on the subject, and therefore this is a 
 case to some extent primes impressionis." 
 Inattention. (2.) When he docs not give proper attention to his master's busi- 
 ness. 
 
 If, for instance, a servant, like a policeman, is never found 
 when wanted, and often sleeps out without leave; he maybe dis- 
 charged (/); but not for a mere temporary absence producing no 
 serious inconvenience to the master; e.g., if the French teacher 
 returns to school aft«r the holidays a day or two after the time 
 
 (<) Robinson v. Hindman, 3 Esp. 235.
 
 i DISCHARGE OF SERVANTS. 217 
 
 of reassembling, the school business not having boon thereby 
 sapended or impeded («). " It is a question of fact," said 
 Vaughan, J., in a case [x) where the acting manager of Covent 
 Garden theatre brought an action for wrongful dismissal, 
 "whether the plaintiff was so conducting himself as that it 
 it would have been injurious to the interests of the theatre to have kept 
 him. If he was, I should have no difficulty in saying that it 
 would be good ground of dismissal." 
 
 (3.) When he is not up to his work. Incompe 
 
 "The public profession of an art," said Willes, J., in Harmer tence. 
 v. Cornelius (y), where a man had been engaged as a scene- 
 painter, " is a representation and undertaking to all the world 
 that the professor possesses the requisite ability and skill. An 
 express promise or express representation in the particular case 
 is not necessary. It may be, that if there is no general and no 
 particular representation of ability and skill, the workman un- 
 dertakes no responsibilty. If a gentleman, for example, should 
 employ a man that is known never to have done anything but 
 sweep a crossing to clean or mend his watch, the employer 
 probably w.ould be held to have incurred all risk himself." So 
 a clerk could not be discharged because he could not drive; he 
 might fairly reply "nun haec in foedera veni." 
 
 Illness, if permanent, is ground tor dismissal; but not if merely 
 temporary (z). 
 
 (4.) When he claims to be a partner. Claim to be 
 
 The common sense of this ground of dismissal is obvious. Bj' partner, 
 claiming to be a partner the servant has put himself in a position 
 inconsistent with that in respect of which he claims wages (a). 
 
 So, too, a servant may be dismissed for trying to dissuade his 
 master's customers or clients from dealing with him (b). 
 
 Although the master may not have assigned any one of these 
 reasons at the time of the dismissal, and may not even have 
 known that such reason existed, he is not thereby precluded 
 from relying on one of them when the servant brings his action 
 for wrongful dismissal (c). But if a master condones an act of 
 misconduct which would have justified him in discharging his 
 servant, he cannot afterwards discharge him for the same act(rf). 
 
 A servant discharged for an act of misconduct does not forfeit Discharged 
 his title to wages already accrued due. If a man. for instance, is servant's 
 engaged at a salary of £50 a month, there is a vested right which nght to 
 cannot be affected by subsequent misconduct to the £50 at the ° 
 
 (u) Filleul v. Armstrong, 7 E. 548. 
 
 A. & E. 557. (b) Mercer v. Whall, 5 Q. B. 
 
 {x) Lacy v. Osbaldiston, 8 C. 447. 
 
 & P. 80. (c) Ritlgway v. Hungerford 
 
 (y) 5 C. B., N. S. 236. Market Co., 3 A. & E. 171. 
 
 (z) Cuckson v. Stones, 1 E. (d) Per Blackburn, J., in 
 
 & E. 248. Phillips v. Foxhall, L. R. 7 Q. 
 
 (a) Amor v. Fearon, 9 A. & B. G80.
 
 21S DISCHARGE OF SERVANTS. 
 
 end of each month (r). The terms of the hiring, however, may 
 have disturbed this right (/). As to wages accruing but not yet 
 accrued due, a servant discharged for misconduct cannot recover 
 anything for the portion of the term he has served. 
 Notice. A word may be said as to the notice which -servants are en- 
 
 titled to. If the hiring is a general one, it is presumed to be for 
 a year, and the servant cannot be dismissed (except, of course, 
 for misconduct) till the year has expired (g). Custom and 
 special circumstances, however, may rebut this presumption. 
 Thus, if the wages are payable weekly, it may be found a weekly 
 hiring, and a week's notice is sufficient (h). A clerk can be dis- 
 charged with three months' notice, and a menial servant with 
 one. The term "menial servant" has been held to include 
 a head gardener residing in a detached house in his master's 
 grounds (/), and a huntsman (A - ), but not a governess (/). In 
 the case of an advertising agent, a month's notice was found to 
 be sufficient (m). In Yibert v. Eastern Telegraph Co. (n), the 
 plaintiff was a stationery clerk in a telegraph office at a salary of 
 £135. payable fortnightly. On its being left to the jury to say 
 what was a reasonable notice to a person in his position, they 
 found that a month was. An indefinite hiring by piece work 
 cannot be considered a yearly hiring (o). 
 Must try to It is to be observed that a servant wrongfully dismissed is not 
 get other em- to receive, as a matter of course his full wages for the unexpired 
 ploymeut term. The amount is to be cut down by his chances of getting 
 other employment, and he is expected to do his best to get such 
 other employment {p) 
 
 In Gordon v. Potter (q) it was held that a domestic servant (a 
 cook accused of drunkenness) discharged without reason was en- 
 titled to the wages accruing up to the time of her discharge, and 
 to a calender month's wages in addition, but not to board wages 
 for the month. 
 Wrongful As to the master's right to bring an action against his servant 
 
 dismissal of for improperly quitting the service, see Lees v. Whitcomb, 5 
 master. Bing 34; Messiter 1K Eose? 13 c. B. 162; and Holmes ». Onion, 
 
 2 C. B., N. S., 79. As to his right to sue a third person who in- 
 Seduction of terrupts the relation, see Terry v. Hutchinson, p. 309; and Lum- 
 servant. ley v. Gye, p. 359. 
 
 (c) Button v. Thompson, L. (I) Todd v. Kerrich, 8 Ex. 
 
 E. 4 C. P. 330. 151. 
 
 (/■) See Walsh v. Wallev, L. (m) Hiscox v. Batchellor, 15 
 
 E. 9 Q. B. 367. L. T., N. S., 543. 
 
 (17) Buckingham r. Surrey («) 1 C. & E. 17. 
 
 Canal Co., W. N. (1882), p. 104. (0) E. v. Woodhurst, 1 B. & 
 
 (h) Baxter v. Nurse, 6 M. & Aid. 325. 
 
 G. 935. (p) Hartland v. General Ex- 
 
 (i) Nowlanr. Ablett, 2 C. M. change Bank, 14 L. T., N. S., 
 
 & E. 54. 863. 
 
 (it) Nicholl v. Greaves, 17 C. {q) 1 F. & F. 644. 
 B., N. S., 27.
 
 BILLS OF SALE, ETC. 219 
 
 Bills of Sale, &c. 
 
 TWYNE' S CASE. 
 [3 Rep. 80 (1585).] 
 
 A Hampsliire farmer named Pierce got deeply into 
 debt ; and amongst his creditors were two persons 
 named Twyne and Grasper. To the former he owed 
 £400 and to the latter £200. After repeatedly diinning 
 the farmer in vain, Grasper decided to go to law for his 
 money, and had a writ issued. As soon as Pierce heard 
 of this, he took the other creditor, Twyne, into his con- 
 fidence, and in satisfaction of the debt of £400 made a 
 secret conveyance to him of everything he had. In 
 spite of this deed, however, — in pursuance of the ne- 
 farious arrangement between them, — Pierce continued 
 in possession just as if he had never made it, He sold 
 some of the goods, sheared and marked some of the 
 sheep, and in everyway acted as if he were the monarch 
 of all he surveyed and Twyne had nothing to do with 
 it. Meanwhile Grasper went on quietly with his action, 
 got judgment and consequently the assistance of the 
 sheriff of Southampton, who appeared one day at the 
 homestead with the intention of carrying off in Mr. 
 Grasper's interest whatever he might chance to find 
 there. This proceeding Twyne, who suddenly appeared 
 on* the scene, strongly objected to, for, said he, — "every- 
 thing on this farm belongs to me, not to Pierce," — and, 
 in proof of his assertion, he produced the deed of con- 
 veyance. 
 
 The question was whether this deed of conveyance 
 was void within the meaning of an Act of Parliament 
 passed in Queen Elizabeth's reign, which provides that 
 all gifts made for the purpose of cheating creditors 
 
 [91.]
 
 220 BILLS OF SALE. ETC. 
 
 shall be void. And, for the following reasons, this gift 
 of Pierce's was considered to be just the kind of gift 
 contemplated by the statute: — 
 
 (1.) It was impossible that anybody could really be 
 so generous as Mr. Pierce had proposed to be. He had 
 given away everything he had in the world, even down 
 to the boots he was wearing. Such self-denial could 
 only be the cloak of fraud. 
 
 (2.) In spite of his parade of liberality, Mr. Pierce 
 did not let one of his things go, but used them all just 
 as if they were his own, thereby obtaining a factitious 
 credit in the world. 
 
 ('■>. ) Then, if there was no fraud, why was there so 
 much mystery about it? Why wasn't the gift made 
 openly ? 
 
 (4.) The gift was made, too, when Grasper had al- 
 ready commenced an action, and evidently meant busi- 
 ness 
 
 ( 5. ) There was a trust between the parties, and trust 
 was only another name for fraud. 
 
 (6.) The deed alleged that the gift was made "hon- 
 estly, truly, and bond fide" and that was a very sus- 
 picious circumstances in itself. 
 
 Gifts dc- * f * 3 ( l ec ^ are( l by 13 Eliz. c. 5, that all gifts and conveyances, 
 
 frauding whether of lands or chattels, made for the purpose of delaying or 
 
 creditors. defrauding creditors, shall he null and void as against such cred- 
 itors. There is, however, a proviso excepting from the operation 
 of this enactment gifts and conveyances made upon valuable 
 consideration and bond fide to persons having no notice of the 
 fraud. Now, it is clear that Farmer Pierce's gift was for valu- 
 able consideration. Why, then, did it not fall within the pro- 
 A*iso? The answer obviously is, because it was not bond fide. 
 It was merely the creation of a trust for the benefit of Pierce 
 himself. 
 Fraud some- ^ a ort ^ er ^at a mere voluntary settlement may be void within 
 times pre- the statute it is not necessary to prove that an actual intention 
 suined. to delay or defraud his creditors was present to the mind of the 
 
 settlor at the time when the deed was executed. It is sufficient 
 to set aside such a gift as fraudulent if the necessary consequence 
 of it is so to delay or defraud the creditors (r). In such case the 
 
 (r) Freeman r. Pope, L. J„ 39 Ch. 689.
 
 BILLS OF SALE. ETC. 221 
 
 fraudulent intention will be presumed to exist. Thus, a man 
 who contemplates entering upon ;i hazardous business cannot, on 
 the eve of doing so, take the bulk of his property out of the reach 
 of those who may become his creditors in his trading operations 
 by settling it upon his wife and children (s). It may, too, be 
 noticed that provision is made by the Bankruptcy Act, 1869. sec. 
 
 91, for the avoidance, in most cases, of voluntary settlements 
 made by a trader within two years of his bankruptcy, or. indeed, 
 within ten years, li unless the parties claiming under such set- 
 tlement can prove that the settlor was, at the time of making 
 the settlement, able to pay all his debts without the aid of the 
 property comprised in such settlement." 
 
 It is extremely important that the student should understand Fraudulent 
 that a deed is not necessarily void because it amounts to an as- preference, 
 signment of all the grantor's property for the benefit of a particu-i 
 lar creditor or of particular creditors. There is nothing at com- 
 mon law to prevent a debtor preferring one creditor to another, 
 imd the statute of Elizabeth does not touch the question of equal 
 distribution of assets. " If the deed is bond fide — that is, if it is 
 not a mere cloak for retaining a benefit to the grantor — it is a 
 good deed under the statute of Elizabeth " (t). Such a deed may, 
 it is true, operate as an act of bankruptcy, or it may be void as 
 amounting to a fraudulent preference within the meaning of the 
 bankruptcy laws («) : but, if the time be past within which the 
 execution of the deed is an act of bankruptcy available for adju- 
 dication against the grantor, or within which the deed can be set 
 aside as a fraudulent preference, it cannot be treated as void 
 within the policy of the bankruptcy laws (x). 
 
 It has been recently decided that a deed, by which insolvent Boldero's 
 debtors conveyed all their estate to trustees on trust for sale and case, 
 division of the proceeds amongst the creditors parties to the deed, 
 was not void under the statute of Elizabeth, although it contained 
 a clause leaving it in the discretion of the trustees not to pay any 
 dividend to creditors who had neglected or refused to execute the 
 deed (y). The court distinguished the case from the somewhat 
 similar one of Spencer v. Slater (z), where the deed was held to Spencer v. 
 be void, on the ground that in the latter case the primary object Slater, 
 was to carry on, not to sell, the business ; and there was, more- 
 over, in Spencer r. Slater a peculiar resulting trust under which, 
 at the expiration of twelvemonths, the debtor might apply to the 
 trustees to be paid the dividends of creditors who neglected or 
 
 (s) Mackay v. Douglas, L. R. (x) Ex parte Gaines, In re 
 
 14 Eq. 106; ex parte Russell, In Bamford, L. R. 12 Ch. D. 314. 
 
 re Butterworth, L. R. 19 Ch. D. {y) Boldero v. Loudon and 
 
 568. Westminster Loan Co., L. R. 5 
 
 (/) Per Giffard, L. J., Alton v. Ex. D. 47. 
 
 Harrison, L. R. 4 Ch. Ap. at p. (z) 4 Q. B. P. 13; and see 
 
 626. Golden v. Gillam, 46 L. T., N. 
 
 (u) See 32 & 33 Vict. c. 71, s. S. 222, and In re Ridler, 22 Ch. 
 
 92. D. 71. 
 16 COMMON LAW.
 
 222 BILLS OF RALE, ETC. 
 
 refused to assent to or execute the deed, and then, if the creditors 
 did not within seven days assent or execute, the money was to 
 be paid to the debtor. 
 
 Bills of sale. The present subject derives great interestand importance from 
 its connection with hills of sale, which are regulated by special 
 and elaborate statutory provisions (a). It is sufficient here to say 
 that a bill of sale is an instrument by which one man purports to 
 grant to another his interest in the goods and chattels specified 
 in such instrument. Prior to the legislation of modern times, 
 the continuance in possession by the grantor was viewed as a 
 badge of fraud, and hence as a circumstance serving to avoid the 
 transaction under the statute of Elizabeth. Now, it was clearly 
 beneficial that the owner of personal property should be able to 
 make such a transfer without any actual change of possession, 
 and yet, that publicity should be given to the transaction. This 
 result was accomplished by enacting that a bill of sale, if duly 
 made and duly registered in the manner prescribed, should be 
 valid whether the grantor continued in possession or not, and 
 that even as against his trustee in bankruptcy. Under the Act 
 of 1878, the registration is to take place within seven clays, in- 
 stead of twenty-oue, as formerly : the consideration is to be set 
 forth in the bill of sale, and the necessity of attestation is intro- 
 
 Act of 1882 duced. The recent Act of 1882 (6), which is to be construed to- 
 gether with the 1878 Act, renders entirely void every bill of sale 
 given in consideration of any sum under £30, or which is not duly 
 attested and registered, or which does not truly set forth the con- 
 sideration for which it was given. The Act also supplies a form 
 in accordance with which the bill of sale must be drawn, and pro- 
 vides that it shall have attached a schedule containing an inven- 
 tory of the property comprised therein. For further information 
 the student should refer to the statutes and treatises bearing on 
 the subject. It may, perhaps, be convenient here to mention the 
 
 27 Eliz. c 4 existence of 27 Eliz. c. 4. That statute, which is confined ex- 
 clusively to real property, is in favour of purchasers, aud makes 
 void, as against subsequent purchasers of the same land, all gifts 
 and conveyances made with the intention of defeating them, or 
 containing a power of revocation. And it has been settled by 
 numerous decisions (c) that every voluntary conveyance is, by the 
 statute, made void as against a subsequent bond fide purchaser 
 for value. See also Myers v. Elliott, 16 Q. B. D. 526 ; Goldstrom 
 v. Tallerman, 34 W. R. 459 ; ex parte Stanford, 34 W. E. 287 ; Da- 
 vis r. Burton, 10 Q. B. D. 414 ; Consolidated Credit Co. v. Gos- 
 ney, 54 L. T. 21 : Walrond e. Goldmann, 16 Q. B. D. 121 ; re 
 Townsend, 53 L. T. 897. 
 
 (a) 17 & 18 Vict. c. 36 ; 41 & (b) 45 & 46 Vict. c. 43. 
 42 Viet. c. 31 ; 45 & 46 Vict. c. (c) Doe v. Manning, 9 East, 
 43. 70.
 
 SUING ON QUANTUM MERUIT. 223 
 
 Suing on Quantum Meruit. 
 
 CUTTER v. POWELL. [92.] 
 
 [6 T. R. 320 (1795).] 
 
 The defendant had a ship which was about to sail 
 from Jamaica to England, and wanted a second mate. 
 In answer to an advertisement a suitable person pre- 
 sented himself in the shape of Mr. T. Cutter, and the 
 defendant gave him a note to this effect: — 
 
 " Ten days after the ship, ' Governor Parry,' myself 
 master, arrives at Liverpool I promise to pay to Mr. T. 
 Cutter the sum of 30 guineas, provided he proceeds, con- 
 tinues and does his duty as second mate in the said ship 
 from hence to the port of LiverpeoW 
 
 The ship set sail on July 31st, and arrived at Liver- 
 pool on October 11th, but on the voyage Cutter died. 
 He had gone on board on July 31st, and had performed 
 his duty faithfully and well up to the time of his death, 
 which occurred on September 20th, — that is to say, 
 when more than two thirds of the passage was accom- 
 plished. 
 
 " In this case," said one of the judges, " the agree- 
 ment is conclusive; the defendant only engaged to pay 
 the intestate on condition of his continuing to do his 
 duty on board during the whole voyage, and the latter 
 was to be entitled either to 30 guineas or nothing ; for 
 such was the agreement between the parties." 
 
 An entire contract cannot he apportioned. An ironmonger once ]r n +j re con _ 
 agreed to make some dilapidated chandeliers "complete" for tract. 
 £10. He set to work on them, and certainly very much im- 
 proved them. But he did not make them "complete," and there- 
 fore he did not succeed in recovering a farthing, although it was 
 quite clear that the work he had done was worth £5 at least (d). 
 
 {d) Sinclair r. Bowles. 9 B. & C. 92 ; and see Needier v. Guest, 
 Aleyn, 9, and Bates v. Hudson, G D. & R. 3.
 
 224 
 
 SUING ON QUANTUM MERUIT. 
 
 1 >i visible 
 
 contract 
 
 Employer 
 
 breaking 
 
 contract. 
 
 Books for 
 boys. 
 
 Employer 
 
 adopting 
 
 benefit. 
 
 Refusal to 
 accept. 
 
 "Extras." 
 
 But the case is different when the contract is not entire, but divisi- 
 ble. A shipwright agreed to put a cranky old coffin of a vessel 
 into "thorough repair," nothing being said about the amount or 
 mode of payment. The shipwright began the job. but, getting 
 distrustful of his employers, he declined to go on with it unless 
 he was paid for what had already been done. He was success- 
 ful in his demand, the court distinguishing the case from Sinclair 
 v. Bowles (e), on the ground that there the contract was to do a 
 specific work for a specific sum, whereas here there was nothing 
 amounting to a contract to do the whole repairs and make no demand 
 till they tvere completed (/). The workman, moreover, will not 
 lose his pay because, while the goods are still in his custody, 
 they are accidentally destroyed, so that the employer gets no 
 benefit from the work (g) . 
 
 Generally speaking, when the contract is entire, there are only 
 two cases in which the plaintiff can demand payment on a quantum 
 meruit without having wholly performed his part of the contract. 
 
 (1.) Where the defendant has absolutely refused- to perform, or has 
 incapacitated himself from performing his part of the contract. 
 
 In such a case it is not ihe plaintiff's fault that he has not per- 
 formed his part of the contract, and it would be obviously unjust 
 that he should suffer by the faithlessness of the party he con- 
 tracted with. A literary gentleman once undertook to write a 
 treatise on Ancient Armour for the "Juvenile Library." But 
 the "Juvenile Library" proved so little successful that its pro- 
 moters resolved to abandon it, whereby the literary gentleman, 
 who had taken several journeys to examine specimens of armour, 
 and had written several chapters of his proposed work, was dam- 
 nified to the extent of £50. It was held that, as the special con- 
 tract was at an end and broken by the defendants, the plaintiff 
 might sue on a quantum meruit (h). 
 
 (2.) Where work has been done under a special contract, though not 
 in strict accordance with its terms, and the defendant has derived a 
 benefit from if under such circumstances as to raise an implied prom- 
 ise to pay for if. 
 
 In this case, however, the employer may refuse to accept the 
 work done, it is only when he does accept and take the benefit, 
 of it that he may be sued on a quantum meruit, and if the work 
 done is of such a nature {e.g., buildings on the employer's own 
 land) that it cannot be rejected, there is no implied promise to 
 pay for it (i). 
 
 In building contracts there is often a deviation from the original 
 plan by consent of the parties. The rule as to the workman's 
 payment for the extras so entailed is that the original contract is 
 
 (e) Supra. 
 
 ( f I Roberts v. Havelock, 3 B. 
 & Ad. 404. 
 
 (g) Menetone t'. Athawes, 3 
 Burr." 1592. 
 
 (h) Blanche v. Colburn, 8 
 
 Bing. 14. 
 
 (/) Ellis v. Hamlen, 3 Taunt. 
 52: Burn v. Miller, 4 Taunt. 7 15; 
 and Munro v. Butt, 8 E. & B. 
 738.
 
 ASSIGNMENT OF CHOSES IN ACTION. 225 
 
 to be followed so far as it can be. traced ; but if it has been totally 
 abandoned, then the workman may charge for his work according 
 to its value, as if the original contract had never been made (k). 
 If. however, the extras have been done by the plaintiff without any 
 authority from the defendant, the latter is not bound to pay for 
 them [I); and where by the terms of the contract extras are to be 
 ordered in writing, the defendant is liable only for such as are so 
 ordered (m). Even where the employer has assented to the de- 
 viation, he will not be liable for extras unless he must necessa- 
 rily have known that the effect would be to increase the ex- 
 pense [n). 
 
 In Richards v. May (o), where a contract for the erection of 
 certain works provided that all extras or additions, payment for 
 which the contractor should become entitled to under the con- 
 tract, should be paid for at the price fixed by the surveyor ap- 
 pointed by the contractor's employer, it was held that this provi- 
 sion impliedly gave power to the surveyor to determine what 
 were extras under the contraet, and consequently that his certifi- 
 cate awarding a certain amount to be due for extras was conclu- 
 sive. See also Lapthorne v. St. Aubyn, 1 C. & E. 486, where the 
 architect's certificate was held so conclusive that it could not be 
 shown that he had by mistake certified for work not done at all. 
 
 Assignment of CJioses in Action. 
 
 BRIOE v. BANNISTER. [93.] 
 
 [3 Q. B. D. 569 (1878).] 
 
 Mr. Gough, ship -builder, agreed to build a ship for 
 Mr. Bannister, ship owner for £1375. After this agree- 
 ment had been entered into, Mr. Gough gave one of his 
 creditors, Mr. Brice, solicitor, of Bridgwater, the fol- 
 lowing order, addressed to Mr. Bannister: — 
 
 "I do hereby order, authorise, and request you to pay 
 to Mr. William Brice, solicitor, Bridgivater, the sum of 
 £100 out of money due or to become due from you to 
 me, and his receipt for same shall be a good dis- 
 charge " 
 
 /,) Pepper r. Burland,Peake, 13 C. B., N. S. 149; and see. 
 
 139, and Robson v. Godfrey, Tharsis Sulphur Co. ». McEl- 
 
 Holt. N. P. C. 236. roy, 3 App. Ca. 1040. 
 
 (/) Dobson v. Hudson. 1 C. B. (h) Lovelock v. King, 1 Moo. 
 
 N. S. 659. & Rob. 60. 
 
 (mi) Russell v. Da Bandeira, (o) 10 Q. B. L>. 400.
 
 226 ASSIGNMENT OF (MIOSES IN ACTION. 
 
 Directly Brice received this order, lie gave notice of 
 it to Bannister in the following terms :-*- 
 
 " I hereby gire you notice that by a memorandum in 
 writirig dated the 27th of October, 1876, John Gough, of 
 this place, authorised and requested you to pay me the 
 sum of £100 oxd of money due or to become due from 
 you to him, and my receipt for the same shall be a good 
 discharge." 
 
 Bannister seems to have thought that, as he had had 
 nothing to do with this arrangement between Gough 
 and Brice, it did not in any way concern him, and in 
 spite of the notice, paid the whole of the money for the 
 ship to Gough. 
 
 This was an action by Brice, and it was held that the 
 instrument in writing constituted a valid assignment of 
 the £100. "It does seem to me," said Bramwell, L.J., 
 "a straQge thing, and hard on a man, that he should 
 enter into a contract with another and then hnd that, 
 because that other has entered into a contract with a 
 third, he, the first man, is unable to do that which it is 
 reasonable and just he should do for his own good. 
 Btit the law seems to be so : and any one who enters 
 into a contract with A. must do so with the understand- 
 ing that B. may be the person with whom, he will have 
 to reckon.''' 1 
 
 Chose in Previously to 1873 — with exceptions, however, in favour of 
 
 action not as- bills of exchange, and life or marine policies (p), — a chose in ac- 
 signable at tion could not be effectively assigned at law, though it could in 
 common law. equity _ j>ut the Judicature Act, 1873, provides [q) that— 
 
 Judicature "Any absolute ASSIGNMENT, by writing under the hand of the 
 
 Act 1873. assignor {not purporting to be by way of charge only), of any debt or 
 other legal chose in action, of which express notice in writing shall 
 hare been given to the debtor, 1 rustic, or other person from whom the 
 assignor would ha re been entitled to receive or claim such debtor chose 
 in action, shall be, and be deemed to have been effectual in law 
 (subject to all equities which would hare been entitled to priority 
 
 (p) See 30 & 31 Vict. c. 144, (q) Sect. 25, sub-s. 6. 
 and 31 & 32 Vict. c.86.
 
 ASSIGNMENT OF CHOSES IN ACTION. 227 
 
 over the right of the assignee if this Act Had not passed to pass and 
 transfer the lego) right to such debt or chose in actinn from the date of 
 such notice, and (dl legal and other remedies for the same, and the 
 power to give a good discharge for the same, without the concurrence 
 of the assignor: Provided always, that if (he debtor, trustee, or other 
 person liable in respect of such debt or chose in action shall hair had 
 notice that such assignment is disputed by the assignor or any one 
 claiming under him, or of any other opposing or conflicting claims to 
 such debt or chose in action, he shall be entitled, if he think Jit, to call 
 upon the several persons making claim (hereto to interplead concerning 
 the same, or he may, if he think Jit, pay (he same into the High Court 
 of Justice under and in conformity with the provisions of the Acts for 
 the relief of trustees. ' ' 
 
 In the recent ease of National Provincial Bank v. Harle (r), Assignor re- 
 where the mortgagee of some premises had assigned to his bank- serving 
 ers, as security for the balance of his banking account, the sum n ^ 
 due on the mortgage deed, subject to his right to have an account 
 and for the reconveyance of the premises on certain conditions, it was 
 held that the assignment was not absolute but only " by way of 
 charge. ' ' 
 
 In another case (s) the plaintiffs had sub-let a portion of prern- Assignment 
 ises in Baker Street, of which they had a lease, to the defendant, of rent not 
 They afterwards assigned their interest in the premises to a per- y et due. 
 son named Burrows, agreeing with him in writing that, notwith- 
 standing the assignment, they should receive the rent due irom 
 the defendant for the remainder of her lease ; and notice of this 
 agreement was given to the defendant. The defendant after- 
 wards surrendered her lease to Burrows, and in an action for 
 rent claimed as accruing after the surrender it was held that, 
 even if there was a valid assignment of a chose in action, still 
 that the plaintiffs could not recover, for that the assignment icasof 
 rent to become due, ivhcreas no rent had accrued due after the sur- 
 render, and the defendant could not be prevented by the agree- 
 ment between the plaintiffs and Burrows from surrendering her 
 lease to Burrows. It seems to be doubtful, however, whether 
 there was in this case any valid assignment within the sub-sec- 
 tion. 
 
 In Burlinson v. Hall (t) debts had been assigned by deed to 
 the plaintiff upon trust that he should receive them, and out of 
 them pay himself a sum due to him from the assignor, and pay 
 the surplus to the assignor. It was held that this was an "abso- 
 lute assignment (not purporting to be by way of charge only)," 
 and that the plaintiff might sue in his own name for the debts. 
 
 Other eases on the subject that may useful] v he referred to are Other cases 
 Buck r. Robson, 3 Q. B." D. 68G : Young v. Kitchen, 3 Ex. D. 
 127; Re .Sutton's Trusts. 12 Ch. D. 175; Schroeder v. Cent. B;mk 
 of London, 34 L. T. 735; British Waggon Co. v. Lea. Q. B. D. 149; 
 
 (r)6Q. B. D. 626.~~ L. J., R. Q. B. D. 357. 
 
 (a) Southwell v. Scotter, 49
 
 228 
 
 ASSIGNMENT OF CHOSES IN ACTION. 
 
 and Wakefield and Barnsley Banking Co. v. Normanton Local 
 Board, 44 L. T. 697. 
 
 Mortgages. ^ seems t nat under the Conveyancing Act of 1881 the trans- 
 
 feree of a statutory mortgage may sue on it in his own name (?<). 
 
 TJovation. Novation may be just mentioned here. It occurs where a third 
 
 party undertakes the liability of the contract and is accepted by 
 the creditor in substitution for the original contractor (x). This 
 mode of discharge receives its commonest illustration in the 
 acceptance by policy holders of the transfer of their policies, and in 
 changes in firms of partners. 
 
 As to garnishees and the attachment of debts see order xlv. of 
 the Judicature Acts. 
 
 Acknowledgments Saving the Statute of 
 Limitations. 
 
 [94.] 
 
 TANNER v. SMART. 
 
 [6 B. & C. 603 (1827).] 
 
 In 1816 Smart gave Tanner his promissory note for 
 £160. In 1819 Tanner showed it him, and delicately- 
 suggested a settlement. Smart said frankly, "I can't 
 pay the debt at present, but I will pay it as soon as I 
 can." Five years slipped by, and Tanner brought an 
 action on the note, to which Smart pleaded actio non 
 accrevit infra sex annos, — in other words, pleaded the 
 Statute of Limitations. In reply to that defence, Tan- 
 ner proved that only five years had elapsed since Smart 
 had spoken the aforesaid words. This, however, was 
 considered to be insufficient, in the absence of proof of 
 the defendant's ability to pay. 
 
 „ ~ , c If I allow six vears to slide by without making mv simple con- 
 
 Effect of part J , ,".,.. 
 
 payment or tract debtor pay me what he owes, my remedy against him is 
 
 acknowledg- barred by the Statute of Limitations. But let me consider 
 
 ment. whether he has not perchance done something in his guilelessness 
 
 21 Jac. I. 
 16. 
 
 (u) 44 & 45 Vict. c. 41, s. 27. 
 
 [a "Praeterea novatione tol- 
 litur obligatio. Veluti si id 
 quod tu Seio debeas, a Titio 
 dari stipulatus sit. Nam inter- 
 
 ventu novre persona; nova nas- 
 citur obligatio, et prima tollitur 
 translata in posteriorem." Just. 
 Inst.. 3, 29, 3.
 
 SAVING STATUTE OF LIMITATIONS. 229 
 
 to interrupt the operation of that excellent statute. There are 
 two ways in which the debt may have been revived. 
 
 (1.) By part payment, or payment of interest (y) ; and 
 
 (2.) By acknowledgment written and signed (z). 
 
 J at the part payment or acknowledgment must be of such a Promise to 
 
 nature a.s not to be inconsistent with an implied promise to pay the l )a . v must be 
 
 whole debt claimed (//)• A refusal to pan (for instance, where the ? a ? a J ? ° 
 J J ' being lin- 
 
 debt r said, " 1 know that I owe the money ; but the bill I gave is on ,,ij et i 
 
 a threepenny reeeipt stamp, and J will never pay it, ,y ) is not good 
 
 enough (b) ; and when there is a conditional promise, the creditor 
 
 must prove the performance of the condition (c). 
 
 In Green v. Humphreys (d) the letter relied on as taking the 
 debt out of the statute containing the following passage : — 
 
 " I thank you for your very kind intention to give up the rent 
 of Tyn-y-Burwydd next Christmas, but 1 am happy to say at that 
 time both principal and interest will have been paid in full." It 
 was held that this would not do for purpose. '' It seems to me," 
 said Bowen, L. J., "that, although there is here an acknowledge 
 ment of a debt in a sense, there is not a clear acknowledgment of 
 a debt in such a way as to raise the implication of a promise to 
 pay, but, on the contrary, only in such a way as to exclude the 
 idea of a promise to pay, and to imply that the writer did not 
 undertake to pay." " I think," said Fry, L.J., " that the words 
 of the letter which have been referred to may be fairly para- 
 phrased in this way, ' I thank you for your very kind intention 
 to let my wife receive the rents of her estate after next Christ- 
 mas, but your kindness is apparent and not real, for by next 
 Christmas the debt to satisfy which you have been stopping her 
 rents will have been fully satisfied in some manner or another." 
 That appears to me to be the best paraphrase which I can give 
 to the sentence in question when I regard the surrounding cir- 
 cumstances of the case, and in that I find no acknowledgment 
 that a debt is due' from the writer." 
 
 An acknowledgment since action brought is not sufficient (e), 
 and it has been doubted whether an acknowledgment to a third 
 party would be (/"). 
 
 (y) See Morgan r. Rowlands, (c) Meyerhoff ?>. Froehlich, 4 
 
 L. R. 7 Q. B. 493 ; Bum v. C. P. D. 63. 
 Boulton, 2 C. B. 47G ; and Ma- (d) 26 Ch. D. 474. 
 ber /-. Maber, L. R. 2 Ex. 153. (e) Bateman v. Piuder, 3 Q. 
 
 (z) 9 Ge >. IV. c. 14, s. 1, and B. 574, overruling Yea v. Four- 
 
 19 & 20 Vict. c. 97, s. 13. aker, 2 Bun. 1099. 
 
 (a) Smith r. Thorne, 18 Q. (/) See Grenfell v. Girdle- 
 
 B. lot ; Skeet v. Lindsay. 2 Ex. stone, 2 G. & C. (io'2 ; Howcutt 
 
 D. 314 ; and Quincey v. Sharp, v. Bonser, 3 Ex. 491 ; Haydon 
 
 1 Ex. D. 72. v. Williams, 7 Bing. 163 ; and 
 
 {!>) A 'Court r. Cross, 3 Bing. Godwin v. Culley, 4 H. & N. 
 
 328 ; and see Humphreys v. 373. 
 Jones, 14 M. & W. 1.
 
 230 
 
 SAVING STATUTE OF LIMITATIONS. 
 
 When statute 
 begins to run. 
 
 Sale On 
 
 credit. 
 
 Promissory 
 note payable 
 on demand. 
 
 Principal 
 surety, and 
 
 co-sureties. 
 
 Indemnity. 
 
 Work done. 
 
 Disabilities. 
 
 Deeds. 
 
 The statute commences to run from the time when the cause of 
 action first accrues (;/). Thus, when goods are sold on credit, the 
 six years are counted, not from the date of the sale, but from the 
 time when the credit expires (/<). In the case, however, of a 
 promissory note payable on demand, the statute begins to run at 
 once ' i |. Where a sum of money is payable by instalments, and 
 there is an agreement between the debtor and the creditor that, 
 on non-payment of any one of such instalments, the whole shall 
 become due, the statute begins to run from the first default (k). 
 
 In eases between principal and surety, the statute begins to 
 run against the latter from the time of his first payment in ease 
 of the principal. But, as between one co-surety and another, the 
 statute does not begin to run against the surety until he has paid 
 more than his proportion of the debt for which he and his co- 
 surety are jointly liable (/)• 
 
 In the case of a contract of indemnity, the statute does not be- 
 gin to run until the lapse of six years from the actual damnifica- 
 *tion (m). And, accordingly, where the defendant had obtained 
 from the plaintiff the loan of his acceptance for £40 payable forty 
 days after date, it was held that the statute began to run from 
 the time the bill was paid by the plaintiff, and not from the time 
 it became due (»). 
 
 Where work is done under a general contract, the cause of 
 action accrues, and the statute begins to run so soon as the work 
 is done (o). But where work is done on the terms that it is to 
 be paid for out of a particular fund, the statute does not begin to 
 run until the fund in question has come to the hands of the de- 
 fendant (p). 
 
 Persons under the disability of infancy, coverture (q) ,or insanity, 
 have six years 7 grace in which to bring their action after the disa- 
 bility has ceased (r) ; but, if the statute has once begun to run, 
 no subsequent disability will suspend its operation (s). 
 
 When the contract is under seat, the time within which the action 
 must be brought is not six but twenty years {t) Specialty debts in 
 
 (g) Hemp v. Garland, 4 Q. B. 
 519, and Wilkinson v. Verity, 
 L. R. 6 C. P. 206. 
 
 (h) Helps v. Winterbottom, 2 
 B. A: Ad. 431. 
 
 (/) Norton v. Ellam. 2 M 
 W. 461. 
 
 (/>) Hemp r. Garland, sup. 
 
 (I) Davies v. Humphreys, ( 
 M. A: W. 153. 
 
 (m) Collinge v. Hevwood. i 
 A. A E. 633, and Huntley v 
 Sanderson. 1 C. & M. 4<i7. 
 
 O) Reynolds v. Doyle, 1 M 
 & G. 753. 
 
 & 
 
 (o) Emery r. Day, 1 C. M. & 
 P. 245. 
 
 [p) Re Kensington Station 
 Act, L. R. 20 Eq. 197; Cliitty 
 on Contracts, (11th ed.) p. 750. 
 
 {q) See. however, the new Act 
 (45 & 46 Vict. c. 75) as to this 
 disability. 
 
 (r) 21 Jac. I. c. 16, s. 7. and 
 see 1!) £ 2d Vict. c. 97, s. 10. . 
 
 (.<*) Homfrav r. Scroope, 13Q. 
 B. 509, and Rhodes v. Smeth- 
 urst, 6 M. & W. 351. 
 
 (0 3 & 4 Will. IV. c. 42, s. 3.
 
 ACKNOWLEDGMENT BY JOINT CONTRACTOR. 231 
 
 India have no higher legal value than simple contract debts, the 
 
 same period of limitation, viz., three years, barring the remedy 
 
 for both. But it has been held that, if an action is brought in 
 
 England on a bond executed in India, the English Statutes of Indian bond 
 
 Limitation apply, and the remedy is not barred till alter the sued on in 
 
 lapse of the twenty years («). England. 
 
 A recent statute provides that " no person shall make an entry Recovery of 
 or distress, or bring an action or suit, to recover any land or rent land, 
 but within twelve years next after the time at which the right to 
 make such entry or distress, or to bring such action or suit, shall 
 have first accrued to some person through whom he claims; or if 
 such right shall not have accrued to any person through whom 
 he claims, then within twelve years next alter the time at which 
 the right to make such eutry or distress, or to bring such action 
 or suit, shall have first accrued to the person making or bringing 
 the same " (a;). The usual disabilities are privileged, but thirty 
 years is the utmost limit allowed, notwithstanding the existence 
 of one of them during the whole period. By sec. 7 of the same 
 Act a mortgagor is barred at the end of twelve years from the 
 time when the mortgagee took possession, or from the last writ- 
 ten acknowledgment. 
 
 Acknowledgment by Joint Contractor, &c. 
 
 WHITCOMB v. "WHITING. 
 [2 DOUGL. 652 (1781).] 
 
 Whiting and Jones made a joint and several promis- 
 sory note, which in the course of time came into the 
 hands of the plaintiff. Eight or ten years after the 
 day on which it was made, the plaintiff sued Whiting, 
 who had long ago forgotten his little undertaking. 
 "Yes," said Whiting, "that certainly must be my sig- 
 nature, and, now you come to mention it, I do remem- 
 ber something about a promissory note. But you see, 
 the date of that note is more than six years ago; so I 
 
 (m) Alliance Bank of Simla (x) 37 & 38 Vict. c. 57, s. 1. 
 v. Carey, 5 C. P. D. 429. 
 
 [95.]
 
 232 ACKNOWLEDGMENT BY JOINT CONTRACTOR. 
 
 have the law of you." " That's all very fine, Mr. Whit- 
 ing," replied the holder with a chuckle, "but Mr. 
 Jones, the gentleman whose name is with yours on 
 this bit of paper, has paid interest on it within the 
 last six years; and that takes it out of the statute as 
 against you as ivell as against him." 
 
 And so it proved. " Payment by one," said my Lord 
 Mansfield, "is payment for all, the one acting virtually 
 as agent for the rest." "The defendant," said YVilles,. 
 J., "has had the advantage of the partial payment, 
 and therefore must be bound by it." 
 
 By 9 Geo. IV. c. 14, partly, and by 19 & 20 Vict. c. 97, s. 14, 
 completely, the doctrine of this case was altered; and a Mr. 
 "Whiting of 1883 would not be prejudiced by the payment or 
 other acknowledgment of a joint contractor. He would be able 
 to shelter himself behind the Statute of Limitations and snap 
 his fingers at his creditor. 
 Godwin v. ^ n a recent case (y) in which the question was whether one of 
 
 Parton. two partners must be presumed, in the absence of proof to the 
 
 contrary, to have authority to make a payment on account of a 
 debt due by the firm, so as to take the debt out of the Statute of 
 Limitations as against the other, — held, that he must — Lush, J., 
 said: "The cases on the subject, which, of course, vary in their 
 circumstances, are no guide to the decision of this or of any other 
 case, except so far as they develop the principle which ought to 
 be applied. They lay down the following conditions as neces- 
 sary to constitute a part payment so as to prevent the operation 
 of the statute. 
 
 "First, the payment must be shown to have been a payment 
 of part, as part, of a larger sum — a payment which, though not 
 in fact sufficient to cover the demand, was made on the supposi- 
 tion that it was sufficient, or which was accompanied with ex- 
 pressions or circumstances showing that the debtor did not in- 
 tend even to pay more, will not suffice. 
 
 " Secondly, the payment must have been made on account of, 
 or must with the assent of the debtor have been appropriated to 
 the debt sought to be recovered. 
 
 " Thirdly, since the Mercantile Amendment Act (19 & 20 Vict. 
 c. 97) payment by one of two joint debtors, though professedly 
 made on behalf of both, will not prevent the statute running in 
 favour of the ether, unless it appears that he either authorised or 
 adopted it as a payment by him as well as by his co-debtor." 
 
 (y) Godwin v. Parton, 41 L. T., N. S., 91.
 
 ACCORD AND SATISFACTION. V33 
 
 In Watson v. Woodman (z) it was held that a payment hy one 
 of a firm of partners will renew the liability of all the others, by 
 reason of the agency of a partner to act for the firm ; but that a 
 dissolution revokes the agency, and a subsequent payment is 
 inoperative to charge a former partner. 
 
 Accord and Satisfaction. 
 
 CUMBER v. WANE. [96.] 
 
 [1 Strange 426 (1719).] 
 
 Wane owed Cumber £15, and wondered how he 
 should pay it. In a genial moment Cumber rejoiced his 
 debtor's heart by telling him that if he paid £5, it 
 would do. Wane thanked him, sat down quickly, and 
 wrote out his promissory note for that amount. But 
 after a while it repented Cumber of his generosity, and 
 he went to law for the whole £15, Wane pleaded that 
 the plaintiff had agreed to accept £5 in full satisfaction 
 for the debt of £15, and that he had paid the £5. 
 Though perfectly true, this was not considered a satis- 
 factory plea, and the unfortunate Wane was compelled 
 to pay the remaining £10. 
 
 The principle on which Cumber v. Wane proceeds is that there p r j n( .jpi e f 
 is no consideration lor the relinquishment of the residue ; so that leading case, 
 whenever there is a benefit, or legal possibility of a benefit, to 
 the creditor, the doctrine that the payment of a smaller sum is 
 no satisfaction of a larger one does not apply. Therefore — 
 
 (1.) The payment of something of a different nature, though njff eren t 
 of less value, e.g , an old arm-chair (which may have a fancy kinds, 
 value quite apart from its intrinsic usefulness), may be pleaded 
 in satisfaction of a debt of £10,000. So a negotiable instrument — 
 hy the way, it must be taken that in Cumber v. Wane the note 
 was not negotiable — for £5 might very successfully be pleaded in 
 
 (z) L. R. 20 Eq. 721.
 
 234 
 
 ACCORD AND SATISFACTION. 
 
 Payment 
 earlier or at 
 different 
 place. 
 Dispute. 
 Unliqui- 
 dated 
 damages 
 
 Composition 
 with cred- 
 itors. 
 
 Receipt nu- 
 der seal. 
 
 Beer v. 
 Foakes. 
 
 satisfaction of a debt of £15 (a). In the recent case of Goddard 
 v. O'Brien (b) this point, which had formerly been regarded as 
 doubtful, was established beyond question. 
 
 (2.) So may a payment, smaller indeed, but earlier than origi- 
 nally stipulated for, or made at a different place. Bis dat qui cito 
 dat (c). 
 
 (3.) So when there is a dispute as to the exact sum due (d). 
 
 (4.) The doctrine does not apply to unliquidated damages, for it 
 is not known what is really due to the plaintiff. Railway com- 
 panies occasionally succeed in entrapping their victims into agree- 
 ments of this kind. In such a case the question for the jury is 
 whether the plaintiff's mind went with the terms of the paper 
 he signed (e). 
 
 (5.) Under the Bankruptcy Act, 1869, a debtor may be dis- 
 charged from obligations by' his creditors accepting a composi- 
 tion (/). 
 
 It is to be observed that a smaller sum may be pleaded in sat- 
 isfaction of a greater if there is a receipt under seal (g). More- 
 over, payment of part may sometimes be evidence of a gift of the 
 remainder; or, again, there may be a remedy by way of counter- 
 claim. 
 
 To be a good discharge, an accord must be executed (h), unless, 
 indeed, the jury find that what the plaintiff accepted in satisfac- 
 tion was not the performance but the promise (i). 
 
 Accord and satisfaction made by a stranger on behalf of the de- 
 fendant, and adopted by the plaintiff, is a good defence (k). 
 
 To an action by several joint creditors accord and satisfaction 
 with any one of them, without the necessity of showing that he 
 had authority from the rest to settle, is an answer (/). And so 
 accord and satisfaction made by one of several parties jointly lia- 
 ble discharges all (m). 
 
 In Beer v. Foakes (n), the principle of Cumber v. Wane was 
 discussed. Judgment for a specific sum having been obtained 
 by the plaintiff in an action, an agreement in writing was made 
 between the plaintiff and the defendant whereby, in considera- 
 tion that the defendant would pay part of the sum on the signing 
 of the agreement and the remainder to the plaintiff or her nomi- 
 nee by equal half yearly instalments, the plaintiff undertook 
 
 (a) Sibree v. Tripp, 15 M. & 230. 
 
 W. 34. (h) 
 
 {b) 9 Q. B. D. 37. & W. 
 
 (c) Pinnell's case. 5 Co. 117. (■/) 
 
 (d) Cooper v. Parker, 15 C. 1039, 
 B. 822. 601. 
 
 (e) Rideal v. G. W. Ry. Co., (A-) 
 1 F. & F. 706 ; and see Lee v. B. 17 
 Lane. & Yorks. Ry. Co., L. R. 12 C. 
 6 Ch. 527. (I) 
 
 (/ ) 32 & 33 Vict. c. 71 s. 125; & W. 
 
 but see Bovd v. Hind, 1 H. & (m 
 
 N. 938, and Edwards v. Han- & E. 
 
 cher, 1 C. P. D. 111. (h) 
 
 (g) Fitch v. Sutton, 5 East, 
 
 Edwards v. Chapman 1 M. 
 
 231. 
 
 Hall v. Flockton, 16 Q. B. 
 
 and Evans v. Powis, 1 Ex. 
 
 Jones r. Broadburst. 9 C. 
 3, and Randall v. Moon, 
 
 B. 261. 
 
 Wallace v. Kelsall, 7 M. 
 
 264. 
 
 Nicholson v. Revill, 4 A. 
 675. ■ 
 
 9 A pp. Ca., 605.
 
 TENDER. 235 
 
 not to take proceedings on the judraent. The defendant duly 
 performed all the terms of the agreement on his part, but it was 
 held that the agreement was not binding on the plaintiff, there 
 being no consideration for it, and that therefore the plaintiff was 
 entitled to issue execution for interest on the judgment debt. 
 
 A point of practice decided in the leading case was that if one Second point 
 parly die during a curia advisari vult, judgment may be entered nunc °* leading 
 pro tunc. This is on the principle, Actus curise nemini facit in- case * 
 juriam (o). See also Ackroyd v. Smithies, 54 L. T., N. S. 130. 
 
 Tender. 
 
 FINCH v. BROOK. [97.] 
 
 [1 Bitfo. N. C. 253 (1834).] 
 
 Money disputes having arisen between Mr. Finch 
 and Mi*. Brook, and litigation being imminent, Mr. 
 Brook sent his attorney to Mr. Finch to pay what he 
 believed to be the amount of his debt. Accordingly, 
 Brook's attorney called on the creditor, and said, " I 
 am come, Mr. Finch, to pay you the £1 12s. bd. which 
 Mr. Brook owes you," whereupon he put his hand into 
 his pocket to come at the coin. Finch, however, testily 
 replied, "I can't take it, the matter is now in the hands 
 of my attorney," and so the lawyer took his hand out 
 of his pocket again without producing the money. 
 The question was whether this constituted a valid 
 tender, and it was held (hat it did not, for there was 
 neither production of the money nor dispensation with 
 production (p). 
 
 The reason why the law attaches so much importance to the 
 production of the money is that "the sight of it may tempt the 
 creditor to yield." A tender, however, is valid, though there is Production 
 no production, if the creditor dispenses with it; as, for instance, dispensed 
 l ■ ■ - 
 
 (o) See Turner v. L. & S. W. if the jury had chosen to do 
 Ky. Co., L. R. 17 Eq. 561. so, they might very well have 
 
 ( ]t) The court, however, inferred dispensation, 
 seems to have thought that, 
 
 with.
 
 236 
 
 TENDER. 
 
 Uncondi- 
 tional. 
 
 To or by 
 
 agent. 
 
 Whole debt. 
 
 Current coin, 
 
 Debt not ex- 
 tinguished. 
 
 where a debtor called on his creditor and said he had £8 18s. 6(7. 
 in his pocket to pay the debt with, whereupon the creditor ex- 
 claimed, " You needn't give yourself the trouble of offering it, for 
 J' in not going to take it" (q). Hut Lord Tenterden, C.J., thought 
 there was not a sufficient tender where the production of the 
 money was prevented by the creditor leaving the room after the 
 debtor had offered to pay it, and whilst he was in the act of tak- 
 ing it from his pocket (>-). 
 
 A valid tender must be unconditional. "If you will gire me a 
 stamped receipt, I will pay you the money," said a debtor once, and 
 he pulled out the money as he spoke. But the tender was held 
 bad for the condition (s). A tender made "under protest" is not 
 a conditional tender (1). 
 
 The tender need not be made to the creditor himself. It may 
 be made to an agent authorised to receive payment of the debt (u). 
 Conversely, the tender may be made by an agent of the debtor (x). 
 And so tender to one of several joint creditors, or by one of several 
 joint debtors, is good. 
 
 The tender must be of the whole debt. But if the creditor's 
 claim consists of a number of distinct items, the debtor may 
 make a good tender of payment of any one of them, provided 
 that he carefully specifies the particular item he wishes to dispose 
 of («). A tender may, of course, be made of a larger sum of 
 money than the amount of the debt (z), but the debtor must not 
 demand change (a). 
 
 The tender must be in the current coin of the realm. Gold is 
 good to any amount ; but silver is not beyond 40s., nor copper 
 beyond a shilling (b). A Bank of England note payable to bearer 
 is a legal tender for all sums above £5 (c). A tender in country 
 notes or by cheque is good if the only reason given by the cred- 
 itor at the time for not accepting it is that the amount of the 
 debt is larger (d). 
 
 It is scarcely necessary to say that the effect of a valid tender 
 is not to extinguish the debt. On the contrary, it is an admission 
 of the contract. But what it does is to put the plaintiff in the 
 wrong so far as his action is concerned. He is exposed as the liti- 
 gious oppressor, while the defendant stands lorth as the virtuous 
 
 (fj) Douglas v. Patrick, 3 T. 
 R. 638. 
 
 (r) Leatherdale v. Swepstone, 
 3 C. & P. 342. 
 
 (s) Laing v. Meader, 1 C. & 
 P. 257. See, however, Rich- 
 ardson v. Jackson, 8 M. & W. 
 928. 
 
 (0 Scott v. Uxbridge and 
 Riekmansworth Ry. Co., L. R. 
 I. C. P. .",96. 
 
 («) Moffatt v. Parsons, 5 
 Taunt. :!07: and see Finch v. 
 Boning, 4 C. P. D. 
 
 (x) Read v. Goldring, 2 M. & 
 S. 86. 
 
 (y) Strong r. Harvey, 3 Bing. 
 304, and Hardingham v. Allen, 
 5C. B. 793. 
 
 (z) Dean v. James, 4 B. & 
 Ad. 546. 
 
 (a) Betterbee v. Davis, 5 
 Camp. 70. 
 
 (b) 33 Vict. c. 10, s. 4. 
 
 (c) 3 & 4 Will. IV. c. 98. s. 6. 
 
 (d) Polglass v. Oliver, 2 C. & 
 J. 15.
 
 CONSTRUCTION OF CONTRACTS. 237 
 
 citizen who has all along been ready and anxious to discharge 
 his liabilities (c). Accordingly, a valid tender stops the further 
 accrual of interest (/). But the plea of tender must be accom- 
 panied by payment into court of the money tendered. 
 
 Construction of Contracts. 
 
 ROE v. TRANMARR. [98.] 
 
 [Willes 632 (1758).] 
 
 A deed bade fair to become void altogether as pur- 
 porting to grant a freehold in futuro — a thing which 
 the law cannot stomach. It was saved, however, from 
 this untimely fate by the merciful construction that, 
 though void as what it purported to be, it might yet 
 avail as a covenant to stand seised, the court citing the 
 maxim, benigne faciendce sunt interpretationes chart a- 
 rum, id res magis valeat quam pereat; and it is in con- 
 nection somehow with this decision that Mr. Tranmarr 
 has succeeded in building himself an everlasting name. 
 
 In construing a written contract (which construction -is for the , , ,. r 
 ° . . , , ' , Intention of 
 
 court), the intention of the contracting parties must be looked to, con t r aetin<* 
 
 the sense in which the promisor believed that the promisee accepted the parties. 
 
 promise being the principal test. But, on the other hand, it is of 
 
 no consequence what the intention of the contracting parties was 
 
 if their written agreement, though totally inconsistent with such 
 
 intention, is precise and clear. 
 
 The chief rules of construction are the following: — ■ 
 
 (1.) The construction must be reasonable 
 
 y - Construction 
 
 One surgeon sold his business to another and covenanted not to must \ n . 
 
 practise within a certain distance. On the reasonable construe- reasonable. 
 
 tion of this covenant it was held not to have been broken by the 
 
 retired surgeon's acting in an emergency, so long as he was not 
 
 (e) Per cur. in Dixon v. (/) Dent v. Dunn, 3 Camp. 
 Clark, 5 C. B. 377. 296. 
 
 17 COMMON LAW.
 
 238 
 
 CONSTRUCTION OF CONTRACTS. 
 
 Liberal. 
 
 Favourable. 
 
 Ordinary 
 
 sense of 
 words 
 
 Context. 
 
 Contra pro- 
 feren fern. 
 
 trying to gel his practice back (g). So, in a charter-party, "the 
 words ' as mar thereto as she can safely get ' must receive a reason- 
 able and not a literal application" (/<). So, too, where a young 
 man living with his father in Lambeth was at the same time ap- 
 prenticed to some mechanical engineers in the same district, a 
 notice to remove to Derby was held unreasonable (<). 
 
 (2.) The construction must be liberal. 
 
 For example, the masculine will generally include both genders. 
 
 (3.) The construction must be favourable. 
 
 If it is possible to put two constructions on an agreement, — 
 one which would make it illegal and void, and the other which 
 would not, the latter view must be taken. See the* leading case. 
 
 (4) Words must be construed in their ordinary sense. 
 
 An annuity was to become void if a woman separated from her 
 husband "associated" with a particular person. It was held 
 that to receive the man's visits whenever he chose to call was 
 "associating" with him, and that, in fact, all intercourse, how- 
 ever innocent, was prohibited (k). 
 
 Usage, however, may give words a technical meaning. 
 
 (5.) The whole context must be considered. 
 
 One part of the document may throw important light on an- 
 other; ex antecedentibus et consequent ibus fit optima inierprefafio. 
 The luminous judgment of Lord Chelmsford, L.C., in Money- 
 penny v. Moneypenny (/), and the case of Piggott v. Strat- 
 ton (to), may be referred to in illustration of this rule. 
 
 (6.) The words of a contract must be construed most strongly 
 against the contractor. 
 
 Verba chartarum fortius accipiuntur contra proferentum; the law 
 shrewdly suspecting that every man will take care to guard his 
 own interests. 
 
 This rule, however, applicable only as a last resource, and in 
 the case of a grant from the Crown is reversed altogether (n). 
 Moreover it would appear that the rule is not to be applied when 
 it would work a wrong to a third person; constructio legis non 
 fai-it injuriam (o). See also the recent case of Stewart v. Mer- 
 chants' Marine Insurance Co., 16 Q. B. D. 619. 
 
 (g) Rawlinson r. Clarke, 14 
 M- &W. 187. 
 
 (A) Per Lush, J., in Capper 
 v. Wallace, 5 Q. B. D. 166. 
 
 (j) Eaton v. Western, 9 Q. B. 
 D. 636, overruling Royce v. 
 Charlton, SQ. B.D.I. 
 
 (k) Dormer v. Knight, 1 
 Taunt. 417; and see Barton v. 
 Fitzgerald, 15 East, 530, and 
 
 Biddlecombe r. Bond, 4 Ad. & 
 E. 332. 
 
 '(/) 9H. L. C. 114. 
 
 (to) 29 L. J. Ch. 1. 
 
 («) Eastern Archipelago Co., 
 v. Reg., 2 E. & B. 906. 
 
 (o) Per Sir Joseph Napier 
 Rodger v. Comptoir d'Escompte 
 de Paris, L. R. 2 P. C. 406.
 
 MEASURE OF DAMAGES IN CONTRACT. 239 
 
 Measure of Damages in Contract. 
 
 HADLBY v. BAXENDALE. 
 [9 Exch. 341 (1854).] 
 
 Messrs. Hadley and Co. were millers at Gloucester, 
 and worked their mills by a steam-engine. In May, 
 1853, the crank shaft of the engine broke, and their 
 mills suddenly came to a standstill. With a view to 
 remedying the disaster, they communicated immediately 
 with Messrs. Joyce and Co., engineers, of Greenwich, 
 and settled to send them the broken shaft that it might 
 form the pattern for a new one. They then sent a ser- 
 vant to the office of the defendants, the well-known linn 
 of carriers trading under the name of " Pickford and 
 Co.," to arrange for the carriage of the broken shaft. 
 The servant found a clerk at the office, and that gentle- 
 man informed him that, if sent any day before 12 o'clock, 
 the shaft would be delivered the next day at Greenwich. 
 On the following day, accordingly, before noon, the 
 shaft was received by the defendants for the purpose of 
 being conveyed to Greenwich, and £2 4s. was paid for 
 its carriage for the whole distance. It happened, how- 
 ever, through the negligence of the defendants, that the 
 shaft was not delivered the next day at Greenwich; and 
 the consequence was that Hadley and Co. did not get 
 the new shaft till several days after they otherwise would 
 have done, the mills in the meantime remaining silent 
 and idle, to the not small pecuniary loss of their pro- 
 prietors. 
 
 It was for the loss of those profits which they would 
 have made if the new shaft had come to them when 
 they expected it that this action was brought; and the 
 question was whether the damage was too remote. It 
 
 [99.]
 
 240 
 
 MEASURE OF DAMAGES IN CONTRACT. 
 
 was held that if the carriers had been made aware that 
 a loss of profits would result from delay on their part, 
 they would have been answerable. But it did not ap- 
 pear that they knew that the want of the shaft was the 
 only thing which was keeping the mill idle. Therefore 
 tbev were not liable. 
 
 Damages 
 arising 
 
 naturally. 
 
 Throe great 
 rules. 
 
 The damages recoverable for breach of contract, are those which 
 arise naturally from the breach, or, as has been said, are such 
 as may be reasonably supposed to have been in the contemplation of the 
 parties at the time the contract teas made as the probable result of a 
 breach of it. Baron Martin (p), however, objected to the latter 
 test of damage, on the ground that parties, when they make a 
 contract, contemplate fulfilling and not breaking it. 
 
 Three rules are generally considered to be deducible from the 
 leading case of Hadley v. Baxendale. 
 
 1. Damage* which may fairly be deemed such as would naturally (q) 
 arise from a breach of the contract, in the usual course of things, are 
 recoverable. 
 
 Thus, in an action (r) for not accepting goods sold, or for not 
 delivering them, the measure of damages is the difference between 
 tin contract price and the market price of similar goods at the time 
 when they ought to have been accepted or delivered. And where the 
 contract is to deliver goods in specified quantities at specified pe- 
 riods (s), as each period arrives, if no delivery or only a partial 
 delivery takes place, the damages will be the difference between 
 the contract price and the market price on that day of the quan- 
 Diseased cow ^'^ wn i cn ought to have been then supplied. In a recent case (t) 
 warranted a cow was sold with a warranty that it was free from disease. As 
 a matter of fact, it had the foot-and-mouth disease, and infected 
 a number of other cows belonging to the purchaser. All the cows 
 died, and the vendor was held responsible for the entire loss, on 
 the ground that he could never have supposed that the cow he 
 sold was intended for a life of solitary confinement. He must 
 have known that the breach of warranty would, in all probabil- 
 ty, lead to the result which actually followed. 
 
 So, too, any increased coet to which a person is put from the 
 necessity of doing himself what he had contracted that some- 
 
 free from 
 disease. 
 
 {p) Prelin r. Royal Bank of 
 Liverpool, L. R. 5 Ex. at p. 100. 
 
 (q) McMahon v. Field. 50 L. 
 J., Q. B., 552. 
 
 (r) Valpv v. Oakelv, 16 Q. B. 
 941 : Ogle v. Vane, L. R. 2 Q. 
 
 B. 275. 
 
 (s) Brown v. Muller, L. R. 7 
 Ex. 319. 
 
 (t) Smith ». Green, L. R. 1 C. 
 P. D. 92 ; and see Mullett v. 
 Mason, L. R. 1 C. P. D. 559.
 
 "MEASURE OP DAMAGES IN CONTRACT. 241 
 
 one else should do lor him is recoverable, if what he does is 
 the fair and reasonable thing to do under the circumstances. On 
 this point Le Blanche v. London and North Western Hallway Co. 
 may be consulted (m). 
 
 (2.) Damages, not arising naturally, hut from circumstances pecvr Special cir- 
 liar to the special case, are not recoverable unless the special circuin- cumstances. 
 stances were known to the person who has broken the contract. 
 
 The leading case went off on this point. The special circum- 
 stances, although hinted at, were not so fully disclosed that the 
 defendants were aware that the want of the shaft Avas the only 
 thing which kept the mills idle. The case of Home r. Midland Shoes for the 
 hail way Co. (a;) well illustrates this rule. Early in 1871 the French army, 
 plaintiffs contracted to supply a quantity of shoes at 4s. a pair 
 for the use of the French army. They were to be delived by a 
 particular day, or they would be thrown back on the plaintiffs' 
 hands. The plaintiffs delivered these shoes in good time at Ket- 
 tering, and gave notice to the station-master there that they were 
 under contract to deliver on that day, and that, if not so deliv- 
 ered, the shoes would be thrown on their hands ; but no further 
 information was given. Somehow, the shoes were not delivered 
 in time, and, doing the best they could, the plaintiffs could not 
 sell the rejected shoes for more than 2s. 9(/. a pair, and the plain- 
 tiffs brought this action to recover from the company the differ- 
 ence between As. and 2s. 9d. on each pair. It appeared that the 
 ordinary market price had not varied between the day on which 
 the boots were due and the day on which they were received, 
 and it was held that, under the circumstances, the defendants 
 were not liable for the special loss which had arisen. 
 
 In another case (y), this rule came under consideration in a Cory v. 
 somewhat anomalous state of circumstances, the parties not ha v- Thames Iron- 
 ing in contemplation the same use for the article to be supplied, works Com- 
 which was of a novel character. The defendants agreed to sell ^' •*' 
 to the plaintiff the hull of a floating boom derrick and deliver it 
 at a time fixed. They believed that the plaintiff wanted it as a 
 coal-store, but, as a matter of fact, he intended to use it for the 
 purpose of transhipping coals from colliers into barges. The 
 former was the most obvious use to which such a vessel would be 
 applied, and the defendants had no notice or knowledge of the 
 special object for which it was purchased. The defendants be- 
 ing late in their delivery of the derrick to the plaintiff, were held 
 
 (u) See p. 64. banker's, the consequence be- 
 (x) L. R. 7 C. P. 583; 8 C. P. ingthatabill discounter refused 
 131; and see Morris v. Lond. & to deal any longer with the 
 Westm. Bank, 1 C. & E. 498, plaintiff's firm, 
 which was an action to recover (y) Corry v. Thames Iron- 
 damages for the dishonour of a works Co., L. R. 3 Q. B. 181. 
 cheque through a mistake of the
 
 known to 
 party breal 
 
 242 MEASURE OF DAMAGES IN CONTRACT. 
 
 liable for the loss of such profits as would have beeu made dur- 
 ing the period of delay by the use of the vessel as a coal-store, 
 but not lor any further loss or damage that had occurred. 
 Special cir- (3.) Where the special circumstances are known to the person icho 
 
 eumstances breaks the contract, and the damage complained 0/ flows naturally 
 from the breach under those special circumstances, such special dam- 
 ind dam- a 9 e ' s recoverable. 
 age flowing But this rule cannot, it seems, be received without the impor- 
 
 naturally taut qualification that (z) "The knowledge must be brought 
 roin rea< 1. j^me to the party sought to be charged under such circumstances 
 fll "rrl 1° 1 ' 1:lt ne mus * know that the person he contracts with reasonably 
 believes that he accepts the contract with thespieial condition attached 
 to it." And this expression of opinion was subsequently con- 
 firmed by Willes, J., in the case of Home r. Midland Bailway 
 Co. ('a), just referred to, and also by the observations of Black- 
 burn, J., when giving judgment iu the same case. That learned 
 judge remarked, "In JIadley v. Baxendale it is said that, if spe- 
 cial notice be given, the damage is recoverable, though there be 
 no special contract, and this has been repeated in various cases ; 
 but it is noticeable that there seems to be no case where it has 
 been held that if notice be given abnormal damages may be re- 
 covered; and I should be inclined to agree with my brother Mar- 
 tin that they cannot unless there be a contract. But it is not 
 necessary to decide this question, because here in fact there was 
 no such notice; the notice here given conveys full information 
 that, the day is of consequence, and that the goods should be de- 
 livered on the 3rd of February if the defendants could, from 
 which a contract of sale on which there was a profit might be in- 
 ferred; but there was no notice that the defendants would have 
 to pay the amount of loss claimed. Therefore, it is not neces- 
 sary to decide whether the dictum in Sadley v. Baxendale is law, 
 though I confess that at present I think it a mistake." 
 
 Take the case of a defendant who has no option of refusing the 
 contract, and is not at liberty to require a higher rate of remun- 
 eration; can it be contended that the mere fact that he proceeded 
 in the contract with knowledge of the special circumstances in 
 itself gives rise to an undertaking to incur a liability for special 
 damages? As, for example, where a railway passenger, on buy- 
 ing his ticket, informs the clerk of some particular loss that 
 would arise on his being late. 
 
 Under the circumstances last supposed the learned author of 
 Mayne on Damages says (b) that " Even if there were an express 
 contract by the defendant to pay for special damages, it might 
 be questioned whether such a contract would not be void for 
 want of consideration." 
 
 (z) Per Willes, J., in British («) 42 L. J., C. P., 61. 
 Columbia Saw Mill Co. v. Net- (6) 3rd ed., p. 33. 
 tleship, L. E. 3 C. P.
 
 MEASURE OF DAMAGES IN CONTRACT. 243 
 
 There is, however, a case (c) which deserves careful attention, 
 ami which at first sight appears to militate against the views that 
 have just been expressed. An action was brought by a cattle- Spice sam- 
 spice manufacturer against a railway company for not delivering pl^S too late 
 spice samples, &c, which the plaintiff had been exhibiting at a show, 
 cattle-show at Bedford, in time for another show at Newcastle- 
 on-Tyne. The plaintiff had not distinctly informed the defend- 
 ants that the samples were intended for exhibition at the New- 
 castle show, but he had addressed them, "The Show Ground, 
 Neweastle-on-Tyne," and had stated that they must be there on 
 Monday certain, and there could really have- been no doubt as to 
 what the man's purpose was. The plaintiff was held entitled to 
 recover damages for the. loss which he had sustained by reason of 
 the delay. The learned author to whom reference has just been 
 made observes on this case ((/). "Notwithstanding some expres- 
 sions in the judgment, it appears that the case really came under 
 the first rule in Hartley v. Baxendale, and not under the third. 
 Goods are consigned with a contract that they are to be delivered 
 at a particular place on a particular day. The contract is broken. 
 What are the damages'? They are the damages naturally arising 
 from the non- arrival of the particular sort of goods. The evi- 
 dence as to knowledge simply went to show that the defendants 
 knew what sort of goods they were. A carrier will be liable to 
 different damages according as be delays a basket of fish or a 
 basket of coals, for the simple reason that delay frustrates the 
 object of sending the fish, but not that of sending the coals. 
 Here the plaintiff claimed no special damages, hut merely general 
 damages for the failure of his object in sending the goods." 
 
 Other cases on this subject which may be consulted are Mc- Other cases. 
 Mahon r. Field, T Q. B. D. 591; Wigsell i>. School for Indigent 
 Blind, 8 Q. B. D. 357; Thol v. Henderson, 8 Q. B. D. 457; Lilley 
 v. Doubleday, 7 Q. B. D. 510; Ashdown v. Ingamells, 5 Ex. D. 
 280; Jenkins r. Jones, 9 Q. B. D. 128; Baldwin v. L. C. & D. 
 By. Co., 9 Q. B. D. 582; Cassaboglon v. Gibbs, 51 L. J., Q. B. 
 593; Hawes u. S. E. Ry. Co., 54 L. J., Q. B. D. 174. Grebert- 
 Bognis v. Nugent, 54 L. J., Q. B. D. 511; The Notting Hill, 9 P. 
 T). 105; Skinner v. City of London Marine Insurance Corporation, 
 14 Q. B. D. 882. AVhithani v. Kershaw, 16 Q. B. I). 613; Kiddle 
 r. Lovett. l(i Q. B. D. 605; and Tredegar Iron and Coal Co. v. 
 Gielgud, 1 C. & E. 27. 
 
 (c) Simpson v. L. & N. W. (d) Mayne on damages, 3rd 
 Ey. Co., L. E. I. Q. B. D..274. ed., p. 32.
 
 244 PENALTIES AND LIQUIDATED DAMAGES. 
 
 Penalties and Liquidated Damages. 
 
 [100.] KEMBLE v. FARREN. 
 
 [6 Bing. 141 (1829).] 
 
 Something more than half a century ago an actor and 
 a manager sat down and made an agreement. The actor 
 on his part undertook to act as principal comedian at 
 the manager's theatre (Covent Garden) for four seasons, 
 and in all things to conform to the regulations of the 
 theatre; while the manager agreed to pay the actor £3 
 6s. 8d. a night, and to allow him a benefit once every 
 season. And the agreement contained this clause, "that 
 if either of the parties should neglect or refuse to ful- 
 fil the said agreement, or any part thereof, or any stip- 
 ulation therein contained, such party should pay to the 
 other the sum of £1000, to which sum it was thereby 
 agreed that the damages sustained by any such omis- 
 sion, neglect, or refusal should amount; and which sum 
 was thereby declared by the said parties to be liquida- 
 ted and ascertained damages, and not a penalty or penal 
 sum, or in the nature thereof." 
 
 For some reason or other — it does not matter what — 
 during the second season the actor refused to act, and 
 the manager now went to law to recover the whole £1000 
 mentioned in the agreement, although he was quite pre 
 pared to admit that he had not sustained damage to a 
 greater extent than £750. 
 
 The manager, however, did not succeed, for the court 
 said that it could never be taken to be the intention of 
 the parties that the whole £1000 should instantly be- 
 come payable on the happening of any breach, however 
 trifling (e). 
 
 (e) See 8 & 9 Will. III. c. 11, s. 8.
 
 PENALTIES AND LIQUIDATED DAMAGES. 245 
 
 It is not always, however, that a court will interfere in this Question of 
 way and pronounce what the parties — who ought to know best — intention, 
 call liquidated damages to be really only a penalty. If the agree- 
 ment, for instance, were not, as it was in Kemble v. Farren, one 
 containing various stipulations of various degrees of importance, but 
 if there were only one event upon which the money was to become Q n ]y one 
 payable, or if there were - several events but the damages impossible event. 
 accurately to measure, then no attempt to turn liquidated damages Damages im- 
 into a mere penalty would be successful ; and in such cases it possible to 
 would be of no consequence whether in the contract the sum to measure - 
 be paid in the event of breach was called " a penalty " or "liqui- Name lm- 
 dated damages," because the court will look to the meaning and 
 effect of the contract itself as disclosing the intention of -the partit s, 
 and, having satisfied itself on that point, does not care much for 
 the term they happen to have selected from Johnson's Diction- 
 ary (/). 
 
 About forty years ago, two London solicitors dissolved part- Galsworthy 
 nership, one of them covenanting not to practise during the next v - Strutt. 
 seven years within fifty miles of Ely Place, nor interfere with or 
 influence any of the clients of the late co-partnership ; if he in any 
 way infringed the covenant, he was to pay £1000 "as and for 
 liquidated damages, and not by way of penalty.'' On breach of 
 this covenant, it was held that, no matter how slight the damage 
 was, the whole £1000 had to be paid (g). " Parties," said Parke, 
 B., "are bound by their contracts, if those contracts be clearly 
 made. It is clear that the defendant stipulated to pay £1000 for 
 the breach of any one of the conditions mentioned ; and they are 
 such that the damage arising from the violation of any of them can- 
 not he exactly csti)natcd beforehand. 
 
 In Sainter v. Ferguson (A) the facts were very similar, but the g a j n t e r v 
 word " penalty " was used in specifying the sum to be paid and Ferguson, 
 there, was only one event on which the money was to become 
 payable. "We can only give effect," said the court, "to the 
 contract of the parties by holding the £500 to be liquidated dam- 
 ages, and not a mere penalty." 
 
 It is to be observed that when a covenant is secured by a pen- Election on 
 alty, the obligee on breach has an election. Either he may go breach, 
 for the penalty and be satisfied with that, or he may sue on the 
 covenant and recover more or less according to his merits. In 
 the former case, the contract is rescinded, and the penalty be- 
 comes the debt in law (/). 
 
 On the subject of equitable relief against penalties, the student Equitable 
 is referred to Peachy v. Somerset (/-•), Sloman v. Walter (/), and the re lief. 
 
 (/) Per Chainbre7j7, in Ast- (/t) 7 C. B. 716. 
 
 ley v. Weldon, 2 B. & P. 354 ; (?) Winter v. Trimmer, 1 W. 
 
 and see Sparrow v. Paris, 7 H. Bl. 395, and Harrison v. Wright, 
 
 & N. 594. 13 East, 433. 
 
 (</) Galsworthy v. Strutt, 1 (k) 1 Stra. 447. 
 
 Ex. 659. (0 1 Bro. C. C. 418.
 
 246 
 
 PENALTIES AND LIQUIDATED DAMAGES. 
 
 Protector 
 Loan Co. ' 
 Grice. 
 
 Other impor 
 taut cases. 
 
 recent case of the Protector Loan Co. v. Grice (m). In the last 
 mentioned case it appeared that the plaintiffs had lent money to 
 a man named Simpson on his bond, under which repayment was 
 to be made by instalments, the whole of the instalment* to become 
 payable at once if default mis made in the payment of anyone of them. 
 the defendant as surety executed the bond, and, default having 
 been made in the paj r ment of one instalment, this action was 
 brought for the entire balance of unpaid instalments. "The doc- 
 trine in equity," said BaggaHay, L.J., ''is stated by Lord Mac- 
 clesfield, L.C., in Peachy v. Duke of Somerset: ' The true ground 
 of relief against penalties' is from the original intent of the cast- 
 where the money is designed only to secure money, and the court 
 gives him all that he expected or desired ;' but it has long been 
 established that relief in equity is also given where the penalty 
 is intended to secure the performance of a collateral object ; Sloman 
 v. Walter. Familiar instances of the relief afforded in equity 
 may be found in those cases where a default has occurred in re- 
 payment of a loan secured by a mortgage ; but where the intent is 
 not simply to secure a sum of money, or the enjoyment of a collateral 
 object, equity docs not relieve. It may be assumed, from the rela- 
 tion of the parties, that they intended to carry out the terms of 
 the agreement ; it was competent to them to determine that the 
 loan should be repayable in the manner mentioned ; it was worth 
 the while of the parties that the money should be borrowed upon 
 the terms mentioned in the condition ; and it would be an act of 
 injustice to the leaders to give judgment for the defendant." 
 
 Other cases on the subject-matter of this note which may ad- 
 vantageously be referred to are Thompson v. Hudson, L. E. 4 H. 
 L. 1 ; Eeynolds v. Bridge, 6 E. & B. 528 ; Mercer v. Irving, E. B. 
 & L. 563 ; Howard v. Woodward, 34 L. J. Ch. 47 ; Birch v. Steph- 
 enson, 3 Taunt. 469 ; Farrant v. Olmius, 3 B. &A1. 692 ; ex parte 
 Capper, 4 Ch. D. 724 ; Atkyns v. Kinnier. 4 Ex. 766 ; Magee v. 
 Lavell, L. E. 9 C. P. Ill ; Lea v. Whitaker, L. E. 8 C. P. 70 ; 
 Sterne v. Beck, 32 L. J., N. S., 682 ; Mexborough v. Wood, 47 L. 
 T., N. S., 516 ; and, last but not least, the very important case 
 ofWallisr. Smith, 21 Ch. 1). 243, where the judgments should 
 be carefully perused. 
 
 (m) 5 Q. B. D. 592.
 
 INJURIA AND DAMNUM. 
 
 247 
 
 Injuria and Damnum. 
 
 ASHBY v. WHITE. 
 
 [Lord Raym. 938 (1703).] 
 
 Through Tory trickery, the vote of a respectable 
 elector at Aylesbury was rejected at the poll. As it 
 happened, the candidates for whom the gentleman had 
 intended to vote were elected. But in spite of his 
 thus having sustained no actual damage, he brought 
 an action against the returning officer, and, after much 
 discussion, it was- held that such an action could be 
 maintained. 
 
 [101.] 
 
 CHASEMORE v. RICHARDS. 
 [7 H. L. C. 349 (1859).] 
 
 A town cannot easily have too good a supply of 
 water, and no doubt the Local Board of Health for the 
 town of Croydon were public benefactors when in 1851 
 they sank a substantial well and supplied the good 
 people of Croydon with pure water at- the rate of 
 600,000 gallons a day. But the public gain was Mr. 
 Chasemore's loss. That gentleman was the occupier of 
 a mill situated on the river Wandle about a mile from 
 Croydon, and had — he and his predecessors — used the 
 river for the last seventy years for turning his wheels. 
 It may well be imagined, therefore, that he was ex- 
 tremely disgusted to find that the effect of what the 
 Local Board had done was to prevent an enormous 
 quantity of water from ever reaching the Wandle or his 
 mill. He went to law, but did not win. The judges 
 
 [102.]
 
 248 
 
 INJURIA AND DAMNUM. 
 
 told him that, though he was much to be sympathised 
 with, he had no legal remedy. There was damnum, 
 they said, but not injuria. 
 
 Injuria and 
 dam num. 
 
 De minimis 
 non curat lex, 
 
 Novelty no 
 abjection. 
 
 Damnum sine 
 injuria. 
 
 Rights of 
 riprarian 
 
 ownership. 
 
 These two eases pretty clearly illustrate the distinction be- 
 tween injuria sine damno and damnum /tine injuria. Wherever a 
 person Ins sustained what the law calls an "injury,'' there he 
 may bring an action without being under the necessity of prov- 
 ing special damage, because the .injury itself is taken to imply 
 damage. A banker once dishonoured the cheque of a customer 
 who really had plenty of money in the bank, and the customer 
 therefore brought an action against him. It was held that the 
 action was maintainable, although the plaintiff had not sus- 
 tained any loss whatever by the banker's wrongful act. There 
 was no damnum, true; but there was injuria, and that was suffi- 
 cient (n). So an action lies against a man who trespasses in my 
 field, although he does me no pecuniary injury (o). 
 
 In Ashby v. White the defendant's counsel cited unsuccesfully 
 the maxim de minimis non curat lex, contending that, even if 
 Ashby had sustained some damage, it was of so inconsiderable a 
 character as to be unworthy of notice. 
 
 It was also objected that there was no precedent for such an ac- 
 tion, but Lord Holt replied that if men will multiply injuries, ac- 
 tions must be multiplied too. 
 
 On the other hand, it is not everything that the law regards as 
 an injury. The most terrible wrongs may be inflicted by one 
 man on another without legal redress being obtainable. If you 
 are driving a flourishing trade as a schoolmaster, and I come and 
 set up a school just Opposite to yours, and the boys desert you 
 and flock to me, there is no injuria here, though I may have 
 turned schoolmaster for the express purpose of ruining you. It 
 is damnum sine injuria, and you have no right of action against 
 me. So, too, slander and seduction are not always actionable. 
 See also Metr. Asylums District Board v. Hill, G App. Ca., 193. 
 
 Chasemore v. Richards is a case of some importance on the sub- 
 ject of watercourses. Every riparian owner is entitled to take a 
 reasonable quantity of the water flowing in a natural stream, 
 whether tidal and navigable or not (/>), for his domestic or busi- 
 ness requirements, the reasonbleness depending on the circum- 
 stances of each case (q). When no material injury would thereby 
 
 (n) Marzetti v. Williams, 1 
 B. & Ad. 415. 
 
 (o) See Sears v. Lyons, 2 
 Stark. 317, and Nicklin v. Wil- 
 liams. 10 Ex. 259. 
 
 (j)) Lyon r. Fishmongers' 
 Co., 1 App. Ca. 662. 
 
 (j) Sandwich r. G. N. Ky. 
 Co., 10 Ch. D. 707.
 
 INJURIA AND DAMNUM. 249 
 
 be inflicted on lower riparian owners, lie may even divert or Diverting 
 
 dam (r); but, of course, when he dams, he must not let the water and damm- 
 all go with a rush so as to flood his neighbour's lands. And as ^ n S- 
 the riparian owner has no business to take too much water, so 
 neither can he pollute the stream; and, if he does so, it will he 
 no excuse that others have been more foul than he has, so that 
 his particular pollution is imperceptible (s). By grant or pre- 
 scription, however, a riparian owner may be entitled to pollute 
 a stream (/). 
 
 In addition to the riparian owner's rights to take water for use, p n rity and 
 and to have it pure, he has a right to the stream's natural flow ; flow, 
 and this is so even in the case of a stream flowing underground in Under- 
 a definite channel or tunnel (m). " If the channel or course un- ground 
 derground is known, as in the case of the river Mole, it cannot stieams - 
 be interfered with. It is otherwise when nothing is known as 
 to the sources of supply ; in that case, as no right can be ac- 
 quired against the owner of the land under which the spring ex- 
 ists, he may do as he pleases with it " (a:). 
 
 The right to use an artificial stream depends on the circum- Artificial 
 stances of its creation ; but it has heen held that the flow of streams, 
 water from a drain made for agricultural improvements for 
 twenty years does not give a right to the person through whose 
 land it flowed to the continuance of the flow, so as to preclude 
 the proprietor of the land drained from altering the level of his 
 drains for the improvement of his land, and so cutting off the 
 supply (?/). But if an artificial stream is ]iermancnt in its charac- 
 ter, a right to the uninterrupted flow of the water may be ac- 
 quired (z), and in Sutclife v. Booth (a) it was held that a water- 
 course, though artificial, may have been originally made under 
 such circumstances, and have been so used, as to give all the 
 rights that the riparian proprietors would have had if it had been 
 a natural stream. 
 
 There is no natural right to the uninterrupted flow of perco- Percolating 
 lating streams whose course is undefined and unknown (h). But streams, 
 such rights may be granted by one landowner to another (c). 
 
 Where the defendant, by draining his land, drained away sub- j, an( i SV m. 
 terranean water from under the plaintiffs land, and thereby ported by 
 
 (r) Swindon Waterworks Co. den v. The Guardiansof Glutton water. 
 
 v. Wilts Canal Co., L. R. 7 H. Union, 1 H. & N. 630. 
 L. 704, and see Ormerod v. Tod- (y) Greatrex v. Hay ward, 8 
 
 morden, 11 Q. B. D. 155, and Ex. 291. 
 
 Kensit o. G. E. Ry. Co., 32 W. (z) See Arkwright v. Gell, 5 
 
 R. 885. M. & W. 203. 
 
 (s) Wood v. Waud, 3 Ex. 748, (a) 32 L. J., Q. B., 136 ; and 
 
 and see Ballard v. Tomlinson, see Roberts v. Richards, 50 L. 
 
 29 Ch. D. 115. J. Ch. 297. 
 
 (OEmbrey?'. Owen.6Ex. 353. (6) Acton v. B^ndell, 12 M. 
 
 (u) Holker r. Poritt, L. R. 8 & W. 324. 
 Ex. 107. But see Ballard v. (c) Whitehead v. Parks, 2 H 
 
 Tomlinson, 29 Ch. D. 115. & N. 870. 
 
 (x) Per Pollock, C.B:, in Dud-
 
 250 INJURIA AND DAMNUM. 
 
 Water sup- caused it to sink, it was held that no action could be brought (d). 
 ported by But the defendant would be liable if, in drawing oft' subterranean 
 water. water, he were to draw off water flowing in a defined surface 
 
 channel (e). 
 Other ini- r ^ c following cases on watercourses may also be usefully im- 
 
 portant ferred to: — Bealey v. Shaw, 6 East, 208 ; Saunders v. Newman, 
 
 cases. i B. & A. 258 ; Wright v. Howard, 1 Sim. & Stuart, 190 ; Mason 
 
 r. Hill, ;; B. & Ad. 304 ; Hodgkinson v. Eunor, 4 B. & S. 229 ; 
 
 and Mayor v. Chad wick, 11 A. & E. 571. 
 Death of tort An action for a tort cannot be brought, after his death, against 
 feasor. the representatives of the person who has committed it, because 
 
 actio personalis moritur cum persona (/). But see 3 &4 Will. IV. 
 
 c. 42, and 9 & 10 Vict. c. 93. 
 
 Ancient Liqlits. 
 
 [103.] YATES v. JACK. 
 
 [L. R. 1 Ch. 295 (1866).] 
 
 In this case the plaintiff was a merchant carrying on 
 a large business at a warehouse in London, and he 
 asked for an injunction restraining his opposite neigh- 
 . bour from erecting a building so as to obstruct his an- 
 cient lights. For the defendant it was contended that 
 no injury would be done to the plaintiff by the new 
 buildings, for he would still have plenty of light for his 
 business. But it was held that, even if that were so, it 
 did not matter; because the owner of ancient lights is 
 entitled not only to sufficient light for the purpose of 
 his then business, but to all the light which he had en- 
 joyed previously to the interruption sought to be re- 
 strained. " The right conferred or recognised by the 
 statute 2 & 3 Will. IV. c. 71," said Lord Cranworth, L. 
 C, "is an absolute indefeasible right to the enjoyment 
 
 {(I) Popplewell v. Hodkinson, (/) See Kirk v. Todd, 21 Ch. 
 
 L. R. 4 Ex. 248. D. 484, and Bowker v. Evans, 
 
 (e) Grand Junction Canal Co. 15 Q. B. J). 565. 
 e. Shugar, L. R. 6 Ch. 483.
 
 ANCIENT LIGHTS. 251 
 
 of the light, without reference to the purpose for which 
 it has been used." 
 
 The third section of the Prescription Act (g) says that "When Section 3. 
 the access and use of light to and for any dwelling-house, work- 
 shop, or other building shall have been actually enjoyed there- 
 with for the full period of twenty years without interruption, 
 the right thereto shall be deemed absolute and indefeasible," 
 unless the same was enjoyed merely by written consent. An 
 indefeasible right, however, to the access and use of light may Common 
 be gained by prescription at common law, independently of the law prescrip- 
 Act (ft). tion - 
 
 Section 4 of the Prescription Act points out the way in which " Without in- 
 the enjoyment may be effectively interrupted. Nothing is to be terruption. " 
 deemed an interruption unless it has been submitted to for a year 
 after notice (/). Flight v. Thomas (k) is a leading case on the 
 construction of this section. It was held in that case that an 
 enjoyment for 19 years and 330 days, followed by an interruption 
 of 35 days just before the commencement of the action, was suffi- 
 cient to establish the right. 
 
 A right to unobstructed light cannot be acquired in favour of Open spaces. 
 open ground, but only in favour of buildings (I). 
 
 The leading case was followed in Moore v. Hall (m), where Different ap- 
 Mcllor, J., said, "I do not think the present actual condition of plication of 
 the premises is the measure of the amount of damage in estimat- premises to 
 ing the damages, you ought not, in my opinion, to stereotype the , , •, 
 existing condition of the premises, but to calculate the reasonable 
 probabilities of a different application of them." The dim religious 
 light which is good enough for the smoking room will not do for 
 the library; and there is no reason why I should not give up the 
 fragrant weed and convert my smoking room into a library (n). 
 
 If a person opens new lights, or enlarges old ones, these new ™ , 
 
 lights or enlargements maybe obstructed with impunity; but the , c 
 
 original lights are still entitled to protection (o). The recent case e " a J^"u t 
 of Fowlers v. Walker (p) should be referred to on this branch of +/ ^ e 1 ,-„ 1lf ^ 
 
 (g) 2 & 3 Will. IV. c. 71. (n) See Aynsley v. Glover, 
 
 (h) Aynsley v. Glover, L. R. supra. 
 
 18 Eq. 541; Kelk ?•. Pearson, L. (o) See National Ins. Co. v. 
 
 R. 6 Ch. 763; and Norfolk i>. Prnd. Ass. Co., 6 Ch. D. 757; 
 
 Arbuthnot, 5 C. P. D. 390. Barnes v. Loach, 4 Q. B.' D v 
 
 (/) See Seldom'. Bank of Bol- 494; and Eccl. Comm. v. Kino, 
 
 ton, 51 L. J., Ch. 542. 14 Ch. D. 213. 
 
 (k) 11 A. & E. 688 ; and see (p) 51 L. J. Ch. 443, and see 
 
 Glover v. Coleman, L. R. 10 C. Scott v. Pape, 53 L. T. N. S. 
 
 P. 108. 598, where it was held that an 
 
 (I) Potts v. Smith, L. R. 6 easement of ancient lights will 
 
 Eq. 311, and Roberts r. Macord, not necessarily be treated as 
 
 1 M. & Rob. 230. abandoned because the old 
 
 (m) 3 Q. B. D. 178, expressly building has been pulled down 
 
 overruling Martin v. Goble, 1 and another substituted, and 
 
 Camp. 320. Raper v. Fortescue, W. N. Ap. 
 
 3rd, 1886. 
 
 to light.
 
 252 
 
 ANCIENT LIGHTS. 
 
 Abandon- 
 ment ofright 
 
 Suspension. 
 
 Must no de- 
 rogate from 
 grant. 
 
 the subject. In 1868 three cottages at Liverpool containing an- 
 cient lights were pulled down, and a large warehouse Avas built 
 on their site containing three large windows. There was no sat- 
 isfactory evidence as to the position of the windows in the cot- 
 tages, though it was admitted that small parts of the new windows 
 might occupy portions of space through tokich light was admitted to the 
 cottages. In an action against some people who proposed to darken, 
 it was held that, in the absence of evidence as to the position of 
 the ancient lights, the easement could not be maintained as to 
 the new building. "It is a novel case," said James, L.J., "upon 
 this point, that it is not the case of enlarged windows, but of old 
 cottages converted into a magnificent block of warehouses. The 
 whole structure has been altered, and the only suggestion made 
 is that in this palatial store which has superseded the humble 
 cottages, there are some portions of the existing windows which 
 coincide with some portions of the old windows. 
 Where there has been such a change, it is incumbent on the plain- 
 tiffs to give satisfactory evidence that there is so much of the old 
 aperture of the window existing that the court can see that the 
 diminution of light creates substantial interference with the 
 plaintiff's right." 
 
 The right to ancient lights is abandoned by pulling down the 
 building, or blocking up the lights, with the intention of aban- 
 doning (q). The question of intention is one of fact, depending 
 on the circumstances of each case. 
 
 The acquiring of a right to light under the statute is suspended 
 during the continuance of a unity of possession of the dominant 
 and servient tenements (r). 
 
 A man cannot derogate from his own grant. 
 
 " There can be no doubt that the law as laid down by Palmer 
 v. Fletcher (s) is the law of the present day; that is, that where a 
 man grants a house in which there are windows, neither he nor any- 
 body claiming under him can stop up the windows or destroy the lights. 
 That is based on the principle that a man shall not derogate from 
 his own grant; and it makes no difference whether he grants the 
 house simply as a house,or whether he grants the house with the 
 windows or the lights thereto belonging. In both cases he giants 
 with, the apparent easements or quasi easements. All that is now, 
 I take it, settled law. 
 
 " I take it also that it is equally settled law that if a man who 
 has a house and land grants the land first, reserving the house, the 
 purchaser of the land can block up the windows of the house. 
 
 "Then there comes a third case. Supposing the owner of the 
 land and the house sells the house and the land at the same mo- 
 
 (q) Moore r. Rawson, 3 B. & (r) Ladyman ». Grave, L. R. 
 C. 332, and Stokoe v. Singers, 8 6 Ch. App. 763. 
 E. & B. 31. (a) 1 Sid. 167, 122.
 
 ANCIENT LIGHTS. 253 
 
 ment. and supposing he expressly sells the house with the lights, 
 can it he said that the purchaser of the land is entitled to block 
 up the lights, the vendor being the same in each case, and both 
 purchasers being aware of the simultaneous conveyances? Cer- 
 tainly not" (0- 
 
 Though the two subjects are often incorrectly treated as if ^ir. 
 they rested on the same principles, a right to air is quite dis- 
 tinct from a right to tight. In Webb v. Bird (u) it was held that 
 the owner of a windmill could not under section 2 of the Pre- 
 scription Act prevent the owner of adjoining land from building 
 so as to interrupt the passage of air to the mill, although it had 
 been worked by this air for more than twenty years. "That 
 which is claimed here," said Willes, J., in the court below (x), Webb r. 
 " amounts to neither more or less than this — that a person hav- Gird- 
 ing a piece of ground, and building a windmill upon it, acquires 
 by twenty years' enjoyment a right to prevent the proprietors of 
 all the surrounding land from building upon it, if by so doing 
 the free access of wind from any quarter should be impeded or 
 obstructed. It is impossible to see how the adjoining owners 
 could prevent the acquisition of such a right, except by combin- 
 ing together to build a circular wall round the mill within twenty 
 years. It would be absurd to hold that men's rights are to be 
 made dependent on anything so inconvenient and impracti- 
 cable." 
 
 So, too, in the recent case of Bryant v. Lefever (y), it was held Bryant v. 
 that the access of air to chimneys cannot, as against the occupier Lefever. 
 of neighbouring land, be claimed either as a natural right of 
 property or as an easement by prescription from the time of legal 
 memory, or by a lost grant, or under the Prescription Act. 
 
 An action, however, lies in cases where the stoppage of air is 
 injurious to health (z). 
 
 It is scarcely necessary to say that there is no right of action Interruption 
 against a builder who comes and spoils a landscape (a). of view. 
 
 (t) Per Jessel, M.R.,in Allen {y) 4 C. P. D. 172, and see 
 
 v. Taylor, 16 Ch. D. 355; and the still more recent case of 
 
 see Swansborough v. Coventry, Harris r. De Pinna, 54 L. T.. 
 
 9 Bing. 305; Compton v. Rich- N. S., 38. 
 
 ards, 1 Price, 27; Wheeldon v. (z) City of London Brewery 
 
 Burrows, 12 Ch. D. 31; and Co. v. Tennant, L. R. 9 Ch. 
 
 Russell v. Watts, 10 App. Ca. App. 212. 
 
 590. (a) Aldred's case, 9 Coke's 
 
 (w) 13 C. B., N. S., 841. Rep. 586. 
 
 (*) IOC. B., N. S., 284. 
 
 18 COMMON LAW.
 
 254 SIC UTERE TUO UT ALIENUM NON L^EDAS. 
 
 Sic utere tuo ut aliemtm non Icedas. 
 
 [104.] FLETCHER v. RYLANDS. 
 
 [L. R. 3 H. L. 330 (1868).] 
 
 Some mill-owners made a reservoir, employing a 
 competent engineer and first-class workmen. During 
 the construction of it, the workmen came upon some 
 old vertical mine shafts, of the existence of which no 
 one was previously aware. These they carefully filled 
 up with soil. But, when the water came to be put into 
 the reservoir, it was just like putting it into an empty 
 flower pot. It ran through, and did a world of mis- 
 chief to the neighboring mines of Mr. Fletcher, who 
 instituted legal proceedings. The mill -owners de- 
 fended the action, thinking that as they had employed 
 competent persons to construct the reservoir they 
 would not be held responsible. But they were mis- 
 taken. On the ground that a person who brings on 
 his land anything ivhich, if it should escape, may dam- 
 age his neighbour does so at his peril, negligence or not 
 being quite immaterial, they were compelled to com- 
 pensate Mr. Fletcher for the damage the water had in- 
 flicted on his mines. 
 
 [105.] NICHOLS v. MARSLAND. 
 
 [2 Ex. D. 1 (1876).] 
 
 Mrs. Marsland was the proprietor of some ornamen- 
 tal lakes in the county of Chester. She had not made 
 them herself. They had existed time out of mind, and 
 had always borne the character of being sober, -respect-
 
 SIC UTERE TUO 1'T ALIEXUM NON LJ^DAS. 255 
 
 able, well behaved lakes. But on the 18th of June, 1872, 
 there came a tremendous storm, the like of which the 
 oldest inhabitant could not remember. The rains de- 
 scended, the floods came, and Mrs. Marsland's lakes 
 burst their fetters, and, in the riot of their new-found 
 liberty, swept away two or three county bridges. Nichols 
 was the county surveyor of Cheshire, and brought this 
 action for the damage done. It was argued for the 
 surveyor, with much plausibility, that Mrs. Marsland 
 was in the same position as a person who keeps a mis- 
 chievous animal with knowledge of its propensities, and 
 therefore that enquiry as to whether she had been neg- 
 ligent or not was needless, — she kept the lakes at her 
 peril. It was held, however, that as the lakes had been 
 carefully constructed and maintained, and the down- 
 pour of rain was so extraordinary as to amount to vis 
 major, the defendant was not responsible. 
 
 "A man must keep his own filth on his own ground," says an old Sic ulere tuo. 
 case in Salkeld (6), and the principle is the foundation of Fletcher 
 v. Rylands. By all means do what you will with your own, hut 
 sic utere tuo ut alienum -non l.xdas. For this reason when a man 
 brings on to his land anything that will do damage to his neigh- 
 bour if it escapes, he keeps it at his peril. 
 
 Ballard r. Tomlinson (c) was decided on this ground. The Ballard r. 
 plaintiff and defendant were adjoining landowners, and each had Tomlinson. 
 a deep well on his own land, the plaintiff's land being at a lower 
 level than the defendant's. The defendant turned sewage from 
 his house into his well, and so polluted the water that percolated 
 underground from the defendant's to the plaintiff's land, and 
 consequently the water which came into the plaintiff's well from 
 such percolating water when he used his well by pumping, came 
 adulterated with the sewage from the defendant's well. It was 
 held that the plaintiff had a right of action against the defendant 
 for so polluting the source of supply, although, until the plaintiff 
 had appropriated it, he had no property in the percolating water 
 under his land, and although he appropriated such water by the 
 artificial means of pumping. 
 
 In Hurdman v. The North Eastern Railway Company (d), the The mound. 
 
 (b) Tenant v. Goldwin, 1 Salk. (c) 29 Ch. Div. 1 15. 
 360. (d) 3 C. P. D. 168.
 
 25<> SIC UTERE TUO UT ALIENUM NON LiEDAS. 
 
 defendants were held responsible for having on their own land 
 built an artificial mound so close to the plaintiff's house as to 
 The cow that render it damp and unhealthy by the rain oozing through. Firth 
 swallowed „. The Bowling Iron Company (c), where the plaintiff 's»cow had 
 tnewire. swallowed a bit of decayed wire which had fallen from the de- 
 
 fendants' fence and been poisoned by it, is to the same effect ; 
 Yew trees. and so is Crowhurst v. the Amersham Burial Board (/), where 
 the plaintiff's horse had been poisoned by eating of a yew tree 
 which the defendants had planted so near their boundary that it 
 projected into the adjoining meadow of the plaintiff. A nice ques- 
 The game of tion of law is likely some day to arise as to the liability of a 
 cricket. cricket club for damage done to person or property by the bats- 
 
 man hitting out of the field. Probably, on the authority of 
 these cases, they would be held responsible ; but the striker of 
 the ball, being clearly a trespasser, should also be joined as a 
 defendant. 
 Another vew ^ ut * n Wilson v. Newberry (g) it was held that a man is not 
 tree case. liable to an action merely because, by some unexplained means, 
 
 the leaves from a yew tree growing on his land get on to his 
 neighbour's land, and are there eaten by, and poison, his cattle. 
 Timers as It has long been a settled legal principle that a person who 
 
 pets. keeps a savage animal, such as a tiger or a lion, does so at his 
 
 peril. If the animal escapes and hurts anyone, it is not neces- 
 sary for the party injured to show that the owner knew the ani- 
 mal to be specially dangerous. In May v. Burdett (A), which 
 The monkey was the case of a monkey biting a lady, Lord Denman, C.J. said, 
 case. " Whoever keeps an animal accustomed to attack and bite man- 
 
 kind, with knowledge that it is so accustomed, is prima facie lia- 
 ble in an action on the case at the suit of any person attacked 
 and injured by the animal, without any averment of negligence 
 or default in the securing or taking care of it. The gist of the 
 action is the keeping the animal after knowledge of its mischiev- 
 ous propensities." 
 
 rj 0(TS In the case of an action for a dog bite, the plaintiff must prove 
 
 Proof of the what is called "the scienter," that is, that the defendant knew 
 scienter. the dog to be specially dangerous. The knowledge of the ser- 
 
 vant having charge of the dog is the knowledge of the master (/) ; 
 and a complaint to the owner's wife (k) or barmaid (I) on the 
 premises, to be communicated to the owner, may be evidence of 
 knowledge. It is not necessary to prove that the dog has actually 
 bitten anyone before (wi); but the plaintiff must go further than 
 
 (e) 3 C. P. D. 254. (k) Gladman v. Johnson, 36 
 
 (n 4 Ex. D. 5. L. J., C. P. 153. 
 
 (g) L. R. 7 Q. B. 31. (7) Appleby v Percy, L. R. 9 
 
 (A) 9 Q. B. 110. C. P. 647. 
 
 (i) Baldwin v. Casella, L. R. (hi) Worth v. Gilling, L. R. 
 
 7 Ex. 325. 2 C. P. 685.
 
 SIC UTERE TUO UT ALIENUM NON L.EDAS. 257 
 
 merely to show that it was usually kept tied up (n) on account 
 of its supposed ferocity. An.offer of compensation is no evidence 
 of the sciente'r (o). 
 
 There is authority for the proposition that a man is entitled to Ferocious 
 
 keep a ferocious dog for the protection of his premises, and to ( '''^ s 1<)r P ro ~ 
 
 turn it loose at night (p). But in these (lavs of law and order a ,l ' ( ' ,1 ". n '*' 
 ° , premises, 
 
 defendant would have to make out a pretty clear case of such a 
 
 strong precaution being really necessary to his safety. * 
 
 By 28 & 29 Vict. c. GO, s. 1, it is enacted that "the owner of 9°8 aoi en " 
 
 every dog shall be liable in damages for injury done to any cat- ' e even ° 
 ° o j j j onc . worry. 
 
 tie or sheep by his dog ; and it shall not be necessary for the party 
 seeking such damages to show a previous mischievous propensity 
 in such dog, or the owner's knowledge of such previous propen- 
 sity, or that the injury was attributable to neglect on the part of 
 such owner." Horses are " cattle " within the section (q). 
 
 Generally, no action will lie against the owner of a dog which Read v. 
 has invaded my garden and spoilt my crops ; but in Read v. Ed- Edwards, 
 wards (r) it was held that an action lay against the owner of a 
 dog, who, knowing the animal to have a propensity for chasing and 
 destroying game, permitted it to be at large, the cansequence 
 of which was that the dog entered the plaintiff's wood, and chased 
 and destroyed young pheasants which were being reared there 
 under domestic hens. 
 
 A man is responsible for the trespasses of his cattle and other Responsi- 
 
 animals in which the law gives him a valuable property. A few bility ol 
 
 years ago, a horse and mare in adjoining fields had a little neigh- ? N% n< r ,. 
 
 ; ' . . , . trespasses ol 
 
 hourly difference of opinion about some matter of equine inter- cattle 
 
 est, and finally the horse, with a sad lack of gallantry, Jacked the jg\]\ 3 v Loft- 
 mare through the fence. It was held that the owner of the horse, us Iron Co. 
 quite apart from auy question of negligence, was liable for the 
 injury so done to the mare (s). But the defendant might some- 
 times get on the right side of an action of this kind by showing 
 that it was all through the plaintiff's not fencing properly, as he 
 was bound by prescription or otherwise to do {t). 
 
 See the recent case of Farrer v. Nelson (u) with regard to actions 
 for overstocking land with game by which injury is done to crops. 
 
 Nichols v. Marsland engrafts on the rule of Fletcher v. Rylands Vis major 
 the qualification that, although a man brings on to his laud what 
 will do damage if it escapes, still he is not responsible if the es- 
 
 («) Beck v. Dyson, 4 Camp. (s) Ellis v. Loftus Iron Co., 
 
 198. L. R. 10 C. P. 10. but see Cox 
 
 (o) Beck v. Dvson, supra. v. Burbridge, 13 C. B. N. S. .430. 
 
 (p) Brock v. Copeland, 1 Esp. (0 See Lee v. Riley. 18 C. B., 
 
 203, Sarch v. Blackburn, 4 C. P. N. S. 7-22: Rooth v. Wilson, 1 
 
 300, and Curtis r. Mills, 5 C. & B. & Aid. 59; Powell v. Salis- 
 
 P. 489. bury, 2 V. & .1. 391 : and Tillett 
 
 (a) Wright v. Penson, L. R. v. Ward, 10 Q. B. P. 17. 
 4 Q. B. 582. (u) 15 Q. B. D. 258. 
 
 (/•) 17 C. B., N. S., 245.
 
 258 SIC UTERE TUO UT ALIENUM NON LJEVAS. 
 
 cape is due to causes beyond his own control, and amounting to 
 vis major (.r) ; and in the later case of Box v. Jubb (y), the same 
 \cl of third cour t held that for the wrongful act of a third party, which set the 
 party. damage in motion, the proprietor was no more responsible than 
 
 for vis major. Moreover, a man who brings water on to his land 
 in the ordinary, reasonable, and proper mode of enjoying his land, is 
 only liable for an escape which is attributable to negligence. 
 Floss v.* Thus in Ross v. Fedden (2), it was held that the occupier of an 
 
 I edden. upper floor, who had not been in any way negligent, was not lia- 
 
 ble to the occupier of a lower for the leakage of water from a 
 water-closet of which he had the exclusive use. 
 Dixon v. In the recent case of' Dixon v. The Metropolitan Board of 
 
 Metropolitan Works (a), the action was by a coal-merchant to recover damages 
 wfc ° ^ or i n J ur y to a l jar g e » coals, &c, belonging to him, caused by the 
 
 defendant's negligence. On the 29th of August, 1879. there was 
 an exceptionally heavy rainfall, and the defendants had opened 
 the water-gates of one of their sewers to prevent a large district 
 from being flooded. There was, of course, a great rush of water, 
 and the coal-merchant's belongings were swept away before it. 
 It was held that, as the injury was caused by the opening of the 
 water-gates, and not by the act of God, the defendants were 
 prima facie liable for the damage done, within the principle of 
 Fletcher v. Rylands, but that, as they were a public body acting 
 in the discharge of a public duty, and as that which happened 
 was only the inevitable result of what Parliament had authorized 
 them to do, they were not liable. 
 Smith i' As to the liability of neighbouring mine-owners, it was held 
 
 Kenrick. in Smith v. Kenrick (6) that the owner of a colliery lying on a 
 
 higher level than another was not responsible for damage done 
 to the latter by its being flooded through the usual and proper 
 taking of coal from the former. But a man cannot work a mine 
 which can only be worked by letting in a river and flooding a 
 neighbour's mine (c) ; and where a mine-owner diverts the course 
 of a stream he must take care that the new course provided for 
 it shall be sufficient to prevent mischief from an overflow (d). 
 Colonel Tom- Smith v. Kenrick was discussed and distinguished in the re- 
 line s case. cent case oi the Attorney-General v. Tomline (e), where it was 
 held that an action would lie by the Attorney-General, at the re- 
 lation of the owner of the land within, to restrain the owner of 
 the foreshore from removing the shingle in such a manner as to 
 endanger the land within by exposing it to inroads of the sea. 
 
 (x) See also Thomas v. Birm. (b) 7 C. B. 565. 
 Canal Co., 43 L. T. 435. (c) Crompton v. Lea, L. R. 
 
 (y) 4 Ex. D. 76 ; and see Car- 19 Eq. 115. 
 stairs v. Taylor, L. R. 6 Ex. 217. (d) Fletcher v. Smith, 2 App. 
 
 (2) L. R 7 Q. B. 661. Ca. 781 ; and see Baird v. Wil- 
 
 (a) 7 Q. B. D. 418; but see liamson, 15 C. B., N. S., 376. 
 Powell v. Fall, 5 Q. B. D. 597. (e) 49 L. J. Ch. 377.
 
 PROXIMATE CAUSE. 259 
 
 See also the recent case of AYhallcy V. Lane. & Yorks. Ry. Whalley s 
 Co. (/), where the defendants were held liable for having, in case, 
 self-protection, transferred a quantity of water, the result of an 
 unprecedented rainfall, to adjoining lauds by cutting trenches in 
 their embankment. 
 
 Proximate Cause. 
 
 SCOTT r. SHEPHERD. [106.] 
 
 [2 W. Bl. 892 (1773).] 
 
 Mr. Shepherd, of Milbourne Port, determined to cele- 
 brate the happy deliverance of that august and wise 
 monarch James I. in the orthodox fashion; and, with 
 that intention, he some days before the 5th laid in a 
 plentiful pyrotechnic supply. Being not only of a 
 pious and patriotic spirit, but also a man not destitute 
 of humour, he threw a lighted squib into the market 
 house at a time when it was crowded with those that 
 bought and sold. The fiery missile came down on the 
 shed of a . vendor of ginger-bread, who, to protect 
 himself, caught it dexterously and threw it way from 
 him. It then fell on the shed of another ginger-bread 
 seller, who passed it on in precisely the same way ; 
 till at last it burst in the plaintiff's face and put his eye 
 out. 
 
 Scott brought an action against the original thrower 
 of the squib, who objected that he was not responsible 
 for what had happend, when the squib had passed 
 through so many hands; but, though he persuaded the 
 learned Mr. Justice Blackstone to agree with him, the 
 majority of the court decided that he must be presumed 
 to have contemplated all the consequences of his wrong- 
 ful act and was answerable for them. 
 
 (/) 13 Q. B. D. 131.
 
 260 PROXIMATE CAUSE. 
 
 [107,] SHARP v. POWELL. 
 
 [L. R. 7C. ]\ 253 (1842).] 
 
 In defiance of an Act of Parliament, a corn mer- 
 chant's servant washed one of his master's vans in the 
 street of a town. In warm weather no harm would 
 have come of this improper proceeding; the water would 
 have found its way down a gutter and through a grat- 
 ing. But it happened to be very frosty, and (though 
 the law-breaking servant did not know it) the grat- 
 ing was frozen over. The consequence was that the 
 water, finding no escape, flowed about and formed a 
 great sheet of ice, over whiqh the plaintiff's horse 
 slipped and got hurt. 
 
 The owner of the injured horse brought an action 
 against the corn merchant, but it was held that, how- 
 ever improper it might be to wash a van in the public 
 street,- this was not the proximate cause of the injury; 
 for the servant could not be expected to foresee that the 
 consequences of his act would be that the water would 
 freeze over so large a portion of the street as to occa- 
 , sion a dangerous nuisance. 
 
 Probably no case, except perhaps Coggs v. Bernard, is better 
 known to the superficial student than the "squib case." It can- 
 not be said, however, that its importance is equal to its popular- 
 ity. In days gone by it served to illustrate the distinction be- 
 tween the action of trespass and the action on the case, but it is 
 now chiefly worth remembering as an authority on questions of 
 consequential damage. 
 Ordinary and The rule is that damage to be actionable must be the ordinary 
 probable con- and probable consequence of the act complained of; in other 
 sequence. words, the act must be the proximate cause of the damage. If a 
 candidate for parliamentary honours makes a stump oration in- 
 veighing at his opponents generally, and waves his hat into the 
 bargain, that is not the proximate cause of one of those oppo- 
 nents getting his windows or his head broken (g). Generally, 
 however, a man must be taken to contemplate all the consequences 
 Sneesbv's °^ *" s acts > an( l * s responsible for them. A railway company 
 case, negligently sent some empty trucks down an incline into a siding. 
 
 (g) Peacock r. Young, 18 W. E. Q. B. 134.
 
 PROXIMATE CAUSE. 261 
 
 The consequence was that a herd of cattle being driven along an 
 occupation road got frightened, ran away, and after breaking 
 down a fence or two succeeded in getting killed on quite another 
 part of the company's line. The company were held responsible 
 to the owner of the cattle (A). In a very recent case (/) the fol- Clark v. 
 lowing facts appeared. The occupier of a Held used for athletic Chambers. 
 sports put a barrier with iron spikes across the adjoining road, 
 in order that the British public might not see the sports without 
 paying. Somebody removed this barrier, and and pnt it in a 
 dangerous position across the footpath. The plaintiff was law- 
 fully passing along this footpath at night, when his eye came into 
 contact with one of the spikes. It was held that the occupier of 
 the field, who had taken liberties with the road which he had no 
 business to take, was liable notwithstanding the intervention of 
 a third party. To take a still more recent case (k), the proprie- Harris v. 
 tor of a van and ploughing apparatus left it by the grassy side Mobbs. 
 of a road to remain there all night. While it was there a farmer 
 came by driving a mare, a confirmed kicker, though not so to his 
 knowledge. The brute shied at the van, ran away, and kicked 
 the farmer to death. In an action under Lord Campbell's Act, 
 it was held that the van-proprietor was liable (k). " Though the 
 immediate cause of the accident," said the court, i: was the kick- 
 ing of the mare, still the unauthorised and dangerous appearance 
 of the van and plough on the side of the highway was within the 
 meaning of the law the proximate cause of the accident." 
 
 The principle of Scott v. Shepherd has been applied in a curious s ome Ameri- 
 American case, where the defendant (with a certain amount of can cases, 
 provocation) had seized a pickaxe and chased a little black boy 
 through the streets of a town. The boy, in terror for his life, 
 bolted into the plaintiff's store, and in his hurry knocked over a 
 cask of wine. It was held that the defendant must pay for the 
 good liquor lost (/). "There is nearly as much reason," said the 
 court, "for holding him liable for driving the boy against the 
 wine cask, and thus destroying the plaintiff's property, as there 
 would have been if he had produced the same result by throw- 
 ing the boy upon the cask, in which case his liability could not 
 have been questioned." So in the American leading case of 
 Fent v. The Toledo Railway Company, 59 111. 349, it was held 
 that a railway company might be responsible to any extent to 
 which a fire wrongfully caused by a spark from one of their en- 
 gines might spread. " If loss has been caused by the act," said 
 Lawrence, C.J., "and it was under the circumstances a natural 
 
 (A) Sneesby v. Lancashire & (k) Harris v. Mobbs, 3 Ex. D. 
 
 Yorkshire Ry. Co., L. R. 9 Q. 268, and see Wilkins v. Day, 12 
 
 B. 263. Q. B. D. 110. 
 
 (/) Clark v. Chambers, 3 Q. (/) Vanderburgh v. Truax, 4 
 
 B. D. 327. Den. N. Y. 464.
 
 262 
 
 PROXIMATE CAUSE. 
 
 The Salva- 
 tion Army. 
 
 Responsi- 
 bility for 
 collecting 
 crowds. 
 
 consequence which any reasonable person could have anticipated, 
 then the act is a proximate cause whether the house burned was 
 the first or the tenth, — the latter being so situated that its de- 
 struction is a consequence reasonably to be anticipated from set- 
 ting the first on fire " (m). But in the recent American case of 
 Scheffer t<. Washington, &c, Railway Co. (n) it was held that 
 where an injury to a passenger by the negligence of the railway 
 company carrying him caused insanity, by reason of which he 
 committed suicide, the injury was not the proximate cause of 
 the death, and the company were not liable for such death. 
 
 The recent case of Beatty v. Gillbanks (o) may be mentioned 
 here as bearing indirectly on proximate cause. At Weston-super- 
 Mare some eccentric religionists, calling themselves a Salvation 
 Army, assembled and marched in procession through the streets 
 of the town. Though their intention was lawful and innocent 
 enough — that of singing hymns, and otherwise enjoying them- 
 selves in an emotional manner — they knew they were hated by 
 the roughs, and that an attempt would be made to disturb the 
 arrangements, with the probable result of a breach of the peace. 
 In spite of this knowledge, it was held that they could npt be 
 rightly convicted of an unlawful assembly. " As far as these ap- 
 pellants are concerned," said Field, J., "there was nothing in 
 their conduct when they were assembled together which was 
 either tumultuous or against the peace. But it is said that the 
 conduct pursued by them on this occasion was such as on several 
 previous occasions had produced riots and disturbance of the 
 peace and terror to the inhabitants, and that the appellants know- 
 ing when they assembled together that such consequences would 
 again arise are liable to this charge. Now, I entirely concede 
 that every one must be taken to intend the natural consequences of Jus 
 own acts and it is clear to me that if this disturbance of the peace 
 was the natural consequence of acts of the appellants, they would 
 be liable, and the justices would have been right in binding them 
 over. But the evidence set forth in the case does not support 
 this contention ; on the contrary, it shows that the disturbances 
 were caused by other people antagonistic to the appellants, and 
 that no acts of violence were committed by them." 
 
 But " it is an old principle of law, that, if a person collects to- 
 gether a crowd of people to the annoyance of his neighbours, that 
 is a nuisance for which he is answerable. Therefore, where the 
 defendant was in the habit of inviting persons into his own 
 grounds to shoot pigeons, and the effect of that was that idle 
 persons collected near the spot, trod down the grass of the neigh- 
 
 {m) See Smith v. L. & S. W. 
 Ry. Co., L. R. 6 C. P. 14. 
 (n) Law Times, Aug. 26th, 
 
 1882. 
 
 (o) 9 Q. B. D. 308.
 
 NEGLIGENCE. 263 
 
 bouring meadows, destroyed the fenees, and created alarm and 
 disturbance amongst the women and children in the adjoining 
 thoroughiares, it was held that the defendant was guilty of a nui- 
 sance Q)). So, where the defendant descended in a balloon into 
 the plaintiff's garden, and a number of persons rushed into the 
 garden to render help and gratify their curiosity, and destroyed 
 the plaintiff's hedges and crops, it was held that the defendant 
 who had set the balloon in motion and caused the mischief was 
 responsible for the injury" (q). 
 
 Negligence. 
 
 READHEAD v. MIDLAND RAILWAY CO. [108.] 
 
 [L. R. 4 Q. B. 349 (I860).] 
 
 Mr. Readhead was a second-class passenger from Not- 
 tingham to South Shields, and on the journey the car- 
 riage in which he was travelling left the metals and was 
 upset. This mishap was occasioned by the breaking of 
 the tyre of one of the wheels of the carriage, owing to a 
 latent defect in the tyre which was not attributable to 
 any fault on the part of the manufacturer, and could 
 not be detected previously to the breaking. This being 
 so, it was held that, though Mr. Readhead might have 
 sustained very severe injuries, the company were under 
 no obligation to make him compensation. It may be 
 mentioned, however, that in the court below Mr. Justice 
 Blackburn had delivered a strong dissenting judgment 
 against the railway company. 
 
 Carriers of passengers are not, like carriers of goo<h, insurers; Duty of car- 
 and accordingly, before one of their victims can recover damages, rier ol pas- 
 he must prove a breach of duty. Their duty is — as was said in sen S ers - 
 
 (p) R. r. Moore, 3 B. & Ad. (q) Guille v Swan. If) Johns. 
 188. and Walker t. Brewster, L. (U. S. R.) 381, Add. Torts. (5th 
 R. 5 Eq. 25 ed.) p 109.
 
 264 NEGLIGENCE. 
 
 the leading case — " to take dw care [including in that term the use 
 of skill and foresight) to carry the passenger safely, and is not a war- 
 ranty that (he carriage in which he travels shall be in all respects Jit for 
 its purpose. 
 
 Tlyman v. ^ n tnc recent case of Hynian v. Nye (r) (where the plaintiff had 
 
 Nye. liired from the defendant, a jobmaster for a drive from Brighton 
 
 to Shoreham and back, a carriage, a pair of horses, and a driver, 
 and an accident had occured), it was held that the duty of a 
 jobmaster who lets out carriages, &c, is to supply a carriage as 
 fit for the purpose for which it is hired as care and skill can make 
 it, "and if, whilst the carriage is being properly used for such 
 purpose, it breaks down, it becomes incumbent on the person 
 who has let it out to show that the breakdown was in the proper 
 sense of the word an accident not preventable by any care or 
 skill. If he can prove this, as the defendant did in Christie v. 
 Griggs, (2 Camp. 80), and as the railway company did in Read- 
 head v. Midland Railway Company, he will not be liable; but no 
 proof short of this will exonerate him" (s). 
 
 Accident not ^ n an action for personal injuries the great obstacle to the plain- 
 imputable. tiff's success generally is to prove that the act complained of was 
 either wilful or negligent. The defendant cannot be made re- 
 sponsible for a mere accident. In Holmes v. Mather (t), a gen- 
 tleman at North Shields had tried some horses for the first time 
 in double harness. The horses did not take kindly to it, and the 
 plaintiff got knocked down. "The driver," said Bramwell, B., 
 "is absolutely free from all blame in the matter; not only does he 
 not do anything wrong, but he endeavours to do what is best to be 
 done under the circumstances The misfortune happens through 
 the horses being so startled by the barking of a dog. that they run 
 away with the groom and the defendant who is sitting beside 
 him. Now, if.the plaintiff under such circumstances can bring 
 an action. I really cannot see why she could not bring an action 
 because a splash of mud, in the ordinary course of driving, was 
 thrown upon her dress, or got into her eye and so injured it. . 
 For the convenience of mankind in carrying on the affairs of life, 
 people as they go along roads must expect, or put up with such mis- 
 chief as reasonable care on the part of others cannot acoid."' In 
 • another well-known case (u), a coachman drove his coach against 
 a bank. He had been past the same spot only twelve hours, be- 
 fore but in the interval a cottage which served him as a landmark 
 had been pulled down and carted away. It was held that this 
 was an accident and for which no one could be made responsible. 
 
 (r) 6 Q. B. D. 685, and see Gil- (i) L. R. 10 Ex. 261. 
 hert r. North London By. Co., (u) Crofts v. Waterhouse, 3 
 
 1 C. & E. 31. Bing. 319. 
 
 (s) Per Lindley, J.
 
 NEGLIGENCE. 265 
 
 So, in the recent case of Manzoni v. Douglas (x), where a horse ftfanzoni v. 
 drawing a brougham in a London street had suddenly and with- Douglas. 
 out appearant reason bolted and knocked the plaintiff down, it 
 was held that an action could not be maintained. "To hold," 
 said Lindley, J., ''that the mere fact of a horse bolting is per se 
 evidence of negligence would be mere reckless guesswork. " The 
 American case of Brown v. Kendall (y), also illustrates this 
 point. The dogs of plaintiff and defendant got lighting, and the 
 defendant, in trying to separate them with a long stick, unfor- 
 tunately knocked out the eye of the plaintiff, who was standing 
 behind him. It was held that the defendant was not liable for 
 tins mischief. "If,'' said Shaw, C. J., "in the prosecution of a 
 lawful act, a casualty, purely accidental, arises, no action can 
 be supported for an injury arising therefrom." 
 
 In an action for personal injuries by negligence, it is the pro- Respective 
 vince of the Judge to say whether there is evidence from which provinces Oi 
 negligence may be reasonably inferred, and of the jury (if the ■ . " 
 evidence is left to them) to say whether it ought to be inferred (z). 
 
 Sometimes, however, res ipsa loquitur ; the mere happening of j> cs jp S(l 
 a disaster may be sufficient to raise a presumption of negligence, loquitur. 
 which the defendant must rebut if he can. This is so, for in- 
 stance, where the thing that caused the mischief was so exclu- 
 sively under the defendant's control, that it is hardly credible 
 that any harm could have come from it without his default. A 
 gentleman was once guilessly Avalking down a Liverpool street 
 when suddenly a barrel of flour came down on his head from the 
 upper window of a flour dealer's shop, and the subsequent pro- 
 ceedings for some time to come did not greatly interest him. In 
 an action against the flour dealer, it was held that the mere un- 
 explained fact of the accident happening at ail was evidence of 
 negligence (a). The same principle of law was laid down in a 
 case where a custom-house officer, lawfully iu some docks, was 
 knocked down by a bag of sugar lowered by a crane overhead (6); 
 and in a third case, where a brick fell from a railway bridge on a 
 person walking peacebly along the queen's highway below (c). 
 
 A railway passenger, it has been held, is entitled to assume T) oor flying 
 that the door is properly shut, and to act accordingly (d). And open, 
 the moral of another case (e) seems to be that if it happens that 
 
 (.r) 6 Q. B. D. 145 ; and see (c) Kearney v. L. B. tt S. C. 
 
 Hammack v. White, 11 C. B. N. Ry. Co., L. R. 6 Q. B. 759. See 
 
 S. 588. also Skinner v. L. B. & S. C. 
 
 0/) 6 Cush. 292. Ry. Co., 5 Ex. 787 ; Carpue v. 
 
 (z) Metr. Ry. Co. v. Jackson, L. B. & S. C. Ry. Co., 5 Q. B. 
 
 3 App. Ca. 19:} ; and see Dub- 747 ; and Bird v. G. N. Rv. Co., 
 
 lin, &c, Rv. Co. v. Slattery, 3 28 L J. Ex. 3. 
 
 App. Ca, 1155. . (d) Gee v. Metr. Ry. Co., L. 
 
 («) Bvrne v. Boadle, 2 H. & R. 8 Q. B. 161. 
 
 C 722. (e) Adams v. Lane. & Y. Ry. 
 
 (b) Scott v. Lond. Docks Co., Co., L. R. 4 C. P. 739. 
 3 H & C. 596.
 
 266 
 
 NEGLIGENCE. 
 
 Train not 
 alongside 
 
 platform. 
 
 Invitation to 
 alight. 
 
 Statutory 
 precaution 
 disregarded. 
 Voluntary 
 precaution 
 dropped. 
 Ice on rail- 
 way plat- 
 form. 
 
 Passenger 
 carried at 
 own risk. 
 
 the door is not shut, or if it flies open, the student had better 
 not make any effort to close it, but get to the other side of the 
 carriage, and let it bang itself to splinters. 
 
 A good many actions against railway companies are brought 
 liv persons who have sustained hurt by their trains overshooting 
 the platforms, or not getting properly up to them. The mere 
 fact of a train's doing a thing of this kind is not evidence of. 
 negligence ; but in such a case it becomes the duty of the rail- 
 way servants to take immediate steps to prevent people getting 
 out and hurting themselves. The singing out of the station is 
 not necessarily an invitation to alight ; but the bringing up of 
 the train to a final standstill at a station, at all events after such 
 a time has elapsed that the passengers may reasonably infer that 
 they are expected to get out, is an invitation. The following 
 cases'may be consulted in support of this statement of the law. — 
 Cockle v. S. E. Ry. Co., L. R. 5 C. P. 457 ; Praeger v. Brist, & 
 Ex. Ey. Co., 24 L. T. 105 ; Bridges v. North London Ry. Co., L, 
 R. G Q. B. 377 ; Robson v. N. E. Ry. Co., L. R. 10 Q. B. 271 ; 
 Siner v. G. W. Ry. Co., L. R. 3 Ex. 150 ; Rose v. N. E. Ry Co., 
 2 Ex. D. 248 ; Lax v, Darlington, 5 Ex. D. 28 ; Weller v. h.' B. 
 & S. C. Ry. Co., L. R. 9 C. P. 126 ; Hellawell v. L. & N. W. Ry. 
 Co., 26 L. T. 557; and Thompson v. Belfast Ry. Co., Ir. Rep., 5 
 C. L. 517. 
 
 The omission to take a precaution enjoined by statute (e. g., to 
 keep a gate at a level crossing) amounts to negligence (/). But 
 the omission to guard against extraordinary accidents is not negli- 
 gence (g) ; nor is the omission of a merely voluntary precaution 
 (A). Each case, however, depends on its own circumstances. In 
 Shepherd v. Midi. Ry. Co. (i) the action was by the Bedford- 
 shire attorney who, while smoking a cigar on the platform of the 
 Ampthill station, and waiting for his train, one frosty day in 
 1870, "felt his legs suddenly go from under him, and fell heavily 
 on the platform, where he lay until assistance was procured to 
 enable him to rise." The cause of this accident was a strip of 
 ice ; and the plaintiff considered he was entitled to damages out 
 of the railway company. In this view he was confirmed by the 
 judges. "It strikes me," said Martin, B., "that the railway 
 servants ought to be on the alert during such weather to see that 
 there is no ice upon the platform, and to remove.it, or render it, 
 harmless, if there." 
 
 It is to be observed that a passenger may enter into a special 
 contract with a carrier to be carried at his own risk ; and in that 
 
 (/)See Stapley v. L. B. & S. 
 C. Ry. Co., L. R. 1 Ex. 21 ; 
 "Wan less v. N. E. Ry. Co., L.R. 
 6 Q. B. 481 ; and Wright v. G. 
 N. Ry. Co., L. R. (Ir.) 8, 257. 
 
 (g) Blyth v. Birm. Water- 
 
 works Co., 11 Ex. 781, and 
 Thomas v. Birm. Canal Co., 43 
 L. T. 435. 
 
 (7«) Skelton ». L. & N. W. 
 Ry. Co., L. R. 2C. P. 631 
 
 (0 25 L. T., N. S., 879.
 
 NEGLIGENCE. 207 
 
 case no amount of negligence would found an action (k). Such a 
 condition, exempts a railway company from responsibility, not 
 only during the journey but also while the passenger is coming to or 
 leaving their premises. And it even extends to protect another 
 railway company over whose line the company making the special 
 contract have running powers (/). The condition is visually im- 
 posed on a drover in charge of cattle who receives a free pass(m). 
 
 A railway company are required by the G8th section of the Fences. 
 Kail ways Clauses Act, 1845 (w), to make and maintain fences, etc., 
 for the accommodation of the owners and occupiers of adjoining 
 lands, and they will therefore be liable to those owners and oc- 
 cupiers for losses resulting through breach of this statutory duty (o). 
 But if cattle stray into afield adjoining the line, and thence get 
 on to the line and are killed, the company will not be responsi- 
 ble {p). 
 
 Market owners who take toll from persons attending the mar- The cow and 
 ket with their cattle are bound to keep the market in a reason- the statue. ' 
 ably safe condition, and on this ground the maj-or, aldermen and 
 burgesses of the borough of Darlington were held liable for the 
 loss of a cow which was so irreverent, and, as it turned out, so 
 indiscreet as to try to jump over a spiked fence surrounding the ' 
 statue of a local hero (q). So, in the case of Francis v. Cock- 
 rell (r), it was held that " where money is paid by spectators at 
 races or other public exhibitions for the use of temporary stands 
 or platforms, there is an implied warranty on the part of the person 
 receiving the money that due care has been used in the construc- 
 tion of the stand by those whom he has employed as independent 
 contractors to do the work as well as by himself." 
 
 The limitation of the leading case as to latent defects does not Randall v. 
 apply to the sale of a chattel where there is an implied warranty. Newson. 
 In Randall v. Newson (s), a man bought of a coach builder a pole 
 for his carriage. Though the coach-builder was guilty of no neg- 
 ligence in the matter, the pole turned out defective and broke, 
 frightening and injuring the horses. . It was held that the coach- 
 builder was liable. 
 
 For Lord Campbell's Act (9 & 10 Vict. c. 93), see p. 358. 
 
 As to the liability of a person for the consequences of his neg- Greenland 'v. 
 ligence, the following remark of Pollock, C.B., in the well-known Chaplin. 
 
 (A;) M'Cawley v. Furness Ry. (p) Ricketts v. East, &c, 
 
 Co.. L. R. 8 Q. B. 57, and Gal- Docks and Ry. Co., 12 C. B. 
 
 Ymv. L. & N. W. Ry. Co., L. 160; and see Manchester, &c, 
 
 R. 10 Q. B, 212. Ry. Co. v. Wallis, 14 C. B. 213, 
 
 (/) Hall v. N. E. Ry. Co., L. and Buxton r. N. E. Ry. Co., 
 
 R. 10 Q. B. 437. L. R. 3 Q. B. 549. 
 
 (m) See Duffi>. G. N. Ry. Co., (?) Lax v. Darlington, 5 Ex. 
 
 4L. R. (Ir.) 178. Div. 28. 
 
 (n) 8 & 9 Vict. c. 20. (r) L. R. 5 Q. B. 501. 
 
 (o) See Corry v. G. W. Ry. (s) 2 Q. B. D. 102. 
 Co., 7 Q. B. D. 322.
 
 208 NEGLIGENCE. 
 
 contributory negligence case of Greenland ?-. Chaplin (t) (where 
 an anchor fell <>n a steam-boat passenger) may be quoted : — " I 
 entertain considerable doubt whether a person who has been 
 guilty of negligence is responsible for all the consequences which 
 may under any circumstances arise, and in respect of mischief 
 which could by no possibility have been foreseen, and which no 
 reasonable person would have anticipated. I am inclined to con- 
 sider the rule of law to be this : that a person is expected to an- 
 ticipate and guard against all reasonable consequences, but that 
 he is not by the law of England expected to anticipate and guard 
 against that which no reasonable man would expect to occur." 
 See also Hurst v. Taylor (tt) with regard to the duty of fencing a 
 footpath in case of diversion. 
 
 [109.] 
 
 Contributor?/ Negligence. 
 
 BTJTTERFIELD v. FORRESTER. 
 
 [11 East, 60 (1809).] 
 
 Mr. Forrester, a citizen of Derby, was engaged in the 
 enterprise of enlarging and improving his house. This 
 was all very well; but in carrying out his repairs he 
 was guilty of the high-handed and unwarrantable act 
 of putting poles across the king's highway. Just about 
 dusk, one August evening, while things were in this im- 
 proper state, Mr. Butterfield was riding home. With 
 reckless disregard for his own and the lieges' safety, he 
 went galloping through the streets " as fast as his horse 
 could go;" and the reader will scarcely be surprised to 
 hear that he rode plump up against Mr. Forrester's ob- 
 struction and had a nasty fall. He brought this action 
 for damages ; but his own careless riding was held to 
 be as complete an obstacle to his success as Mr. For- 
 rester's pole had been to his horse. " A party," said 
 Lord Ellenborough, C.J., "is not to cast himself upon 
 an obstruction which has been made by the fault of 
 
 (I) 5 Exch. 243 ; and see Scott (tt) 14 Q. B. D. 918. 
 v. Shepherd, p. 259.
 
 CONTRIBUTORY NEGLIGENCE. 269 
 
 another and avail himself of it if he do not himself use 
 common and ordinary caution to be in the right . . . 
 . . . One person being in fault will not dispense with 
 another's using ordinary care for himself. 
 
 DA VIES v. MANN. [110.] 
 
 [10 M. & \V. 546(1842).] 
 
 The owner of a donkey fettered its forefeet, and in that 
 helpless condition turned it into a narrow lane. The 
 animal had not disported itself there very long when a 
 heavy waggon belonging to the defendant came rumb- 
 ling along. It was going a great deal too fast, and 
 was not being properly looked after by its driver ; the 
 consequence was that it caught the poor beast, which 
 could not get out of the way, and killed it. The owner 
 of the donkey now brought an action against the owner 
 of the waggon, and, in spite of his own stupidity, was 
 allowed to recover, on the ground that if the driver of 
 the waggon had been decently careful the consequences 
 of the plaintiff's negligence would ham been averted. 
 "Although," said Parke, B., "the ass may have been 
 wrongfully there, still the defendant was bound to go 
 along the road at such a pace as would be likely to pre- 
 vent mischief. Were this not so a man might justify 
 the driving over goods left on a public highway, or 
 even over a man lying asleep there, or the purposely 
 running against a carriage going on the wrong side of 
 the road." 
 
 The doctrine of contributory negligence is based on the maxim y lenHnon lit 
 volenti rum fit injuria. The man who is the author of his own injuria. 
 wrong merits nobody's sympathy ; he does not come into court 
 with clean hands. "If," says Domat, "one goes across a public 
 cricket-ground whilst they are playing, there and the ball being 
 struck chances to hurt him, the person to blame is not the inno- 
 cent striker of the ball, but he who imprudently sought out the 
 danger. 1 ' 
 
 19 COMMON LAW.
 
 270 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 gence. 
 
 Kadley's 
 case. 
 
 When plain- "But Da&iea v. Mann engrafts an important qualification on the 
 tiff may re- rule that the negligence of the plaintiff himself disentitles him 
 cover in spite to complain of the defendant's negligence. If the defendant by 
 being ordinarily careful would have averted the consequences of the 
 plaintiff's negligence — in other words, if the regrettable accident 
 would never have happened, if the defendant had behaved as he 
 ought to have done — then the plaintiff is entitled to recover in 
 spite of his negligence. A penny steamer negligently ran down 
 ajbarge on the Thames. The barge had not ported, and no look-out 
 was kept on board. But this undoubted negligence of the barge was 
 held not such as to prevent her owners from obtaining compensa- 
 tion from the steam-boat people (u). In the river Colne, in 
 Essex, an oyster bed was so placed as to -be a public nuisance, 
 yet its proprietors successfully went to law against a person who 
 ran his vessel against it when he might have managed better (x). 
 In a third and more recent case some colliery proprietors had a 
 siding from the London and North Western Railway Company's 
 line, and over the siding a bridge with a headway of eight feet. 
 The London and North Western Railway Company negligently 
 pushed a loaded truck eleven feet high against the bridge and 
 broke it down. The jury found that the colliery proprietors as 
 well as the railway company had been negligent in the matter, 
 for they ought to have foreseen what was going to happen, as 
 the loaded truck had been standing about some time ; but in 
 spite of this negligence, they were held entitled to recover against 
 the railway company for the damage done to the bridge, as the 
 defendants, by the exercise of ordinary care, might have averted 
 the mischief (y). 
 
 The donkey case qualification may be put as qorrectly and 
 more simply by saying that a plaintiff is not disentitled by his 
 negligence unless such negligence was the proximate cause of the 
 damage. 
 
 In Davey v. L. &. S. W. Ry. Co. (yy), which was a level crossing 
 case, the defendants had been to a certain extent negligent, but 
 the plaintiff was held to have been properly nonsuited, because 
 he had been much more negligent, and it was his negligence 
 which had mainly contributed to the accident. "Is it open," 
 said Bowen, L. J., "to any reasonable mind to draw the infer- 
 ence that that accident was caused by anything except the gross 
 negligence of the man, who never looked at a train which was 
 within a few feet of him ?" 
 
 Contributory negligence is no defence (probably) in criminal 
 law Jz). 
 
 In a case of collisions at sea, where both ships are to blame, the 
 
 Davey 's case. 
 
 Collisions at 
 sea. 
 
 (u) Tuff v. Warman, 2 C. B., 
 N. S. 573. 
 
 (x) Mayor of Colchester v. 
 Brook, 7 Q. B. 339 
 
 (y) Radley v. L. &N. W. Ry. 
 Co., 1 App. Ca. 754. 
 
 lyy) 12 Q. B. D., but see this 
 cast- severely criticised in Brown 
 v. G. W. Ry. Co., 52 L. T. 622. 
 
 (z) R. v. Swindall, 2 C. & K. 
 20.
 
 DOCTRINE OF IDENTIFICATION, 271 
 
 loss is equally apportioned between them (a). But in the case of 
 
 the Bywell Castle (6), it was held that when- one ship has by The Princess 
 
 wrong maneuvering placed another ship in a position of extreme Alice catas- 
 
 danger, that other ship will not be held to blame if she has done * " 
 
 something wrong, and has not been manoeuvred with perfect skill 
 
 and presence of mind. '"You have no right,',' said James, L.J.. 
 
 "to expect men to be something more than ordinary men. - ' 
 
 It may be mentioned here that, by English law, the owner of Compulsory 
 a ship is not liable for the negligence of a pilot whom he is compel- pilotage. 
 led to employ (c). If, however, as in the Suez Canal, the effect of 
 taking the pilot on board is merely to constitute him adviser, 
 while the control of the navigation of the ship is left solely with 
 the master, the ship-owner will not succeed in sheltering himself 
 behind the compulsory pilotage (d). 
 
 It is to be observed that the defendant is not excused merely Choice of 
 because the plaintiff, knowing of a danger caused by the defend- dangers, 
 ant, voluntarily incurs an alternative danger, e.g., jumps out of 
 a train or coach to escape collision (c). Xor is he excused merely 
 because the plaintiff was doing something illegal (/). 
 
 "' The law with regard to negligence." said Lopes, J., in Brown 
 v. G. W. Ey. Co. (zz), "has somehow or the other got into a 
 lamentable state of confusion." 
 
 Doctrine of Identification. 
 
 WAITE "v. NORTH EASTERN RAILWAY CO. [111.] 
 
 [E. B. &E. 719 (1858i.] 
 
 Mrs. Park and her little grandson of five years old 
 proposed to travel by train from Velvet Hall to Tweed- 
 mouth. After taking the ticket and a half, they had to 
 get to the opposite platform by a level crossing; and, 
 whilst they were attempting the passage, a goods train 
 
 (a) The Milan. Lush. 388; P. D. 132. and see the Cacha- 
 and see The Margaret, 6 P. D. pool. 7 P. D. 217. 
 76, The City of Manchester, 5 (e) Jones v. Boyce, 1 Stark. 
 P. D. 221, and The Stoomvaart, 493; and see Clavards r.* De- 
 Ac. v. The P. & O., 7 H. L. 795. thick, 12 Q. B. 439, and Adams 
 
 (6) 4 P. D. 219. and see The v. L. & Y. Ry. Co., L. E. 4 C. 
 
 Famenoth, 7 P. I). 207. P. 742. 
 
 (c) 17 & 18 Vict. c. 104, s. (f) Steele v. Buchart, 104 
 
 388. and see The Clan Gordon, Mass. 59. 
 
 7 P. D. 190. {zz) 52 L. T. 622. 
 
 {d) The Guy Mannering, 7
 
 272 DOCTRINE OF IDENTIFICATION. 
 
 came up unexpectedly and knocked them down. Mrs. 
 Park was killed on the spot, but the little boy survived 
 to go to law. The jury found that, though the railway ser- 
 vants were negligent in not having warned the old wo- 
 man against the danger of crossing the line just then, 
 yet the woman herself in not having kept a better look- 
 out was guilty of such negligence as would have disen- 
 titled her to recover. No attempt was made to fix the 
 little boy himself with negligence. It was resolved, 
 however, that for the purposes of this action he was so 
 identified with his grandmother that her negligence was 
 his, and that his action must fail. 
 
 At first sight it may seem rather hard on the little hoy that, 
 without the slightest fault on his part, he should not he ahle to 
 avail himself of the company's negligence; hut the injustice of it 
 will appear less flagrant "when it is remembered that for the pur- 
 poses of crossing the line he had entirely surrendered his will to 
 his grandmother's. 
 Thorogood r. The doctrine of identification, which the leading case illustrates, 
 Bryan. has been applied to cases of the collision of vehicles (g). You 
 
 are driving your dog-cart, we will say, at your usual furious and 
 improper speed through the streets of a town, and I am going 
 out to dinner in a hansom. My driver, as it turns out, — though, 
 of course, I did not know it when I employed him, — is drunk, and 
 through the joint negligence of him and you, a collision occurs, 
 and I am badly hurt. According to the more accepted view, I 
 am so far identified with my drunken driver that his contributory 
 negligence is mine, and I shall fail in my action against you. The 
 reader, however, should refer to the case of Rigby v. Hewett (h), 
 where two omnibuses were racing, and the plaintiff, who was on 
 the outside of one of them, was thrown off and injured. It was 
 held that he was entitled to recover damages against the pro- 
 prietors of the other omnibus, notwithstanding the furious rate 
 at which his own was going. 
 
 (g) Thorogood v. Bryan, 8 C. 10 Ex. 47, and Child v. Hearn, 
 B. 114; and see Armstrong v. L. R. 9 Ex. 476. 
 Lane. & Yorks. Ry. Co., L. R. (A) 5 Ex. 240.
 
 CONTRIBUTORY NEGLIGENCE OF CHILDREN. 273 
 
 Contributory Negligence of Children. 
 
 LYNCH r. NURDIN. [112.] 
 
 [1 Q. B. 29 (1841).] 
 
 Mr. Nurdin was an egg-merchant, and used to send 
 his servant round Soho with a cart to deliver eggs to his 
 customers. One day, when the man was out with the 
 cart as usual, he imprudently left it for half an hour or 
 so standing by itself on Compton Street, drawn up by 
 the side of the pavement. While he was away some 
 little children began playing about the cart, climbing 
 into it, and having all kinds of games. Amongst them 
 was a little boy named Lynch, aged six years. He was 
 in the act of climbing the step with a view to securing a 
 box seat, when another mischievious little boy pulled at 
 the horse's bridle. The horse moved on, and the little 
 Lynch was thrown to the ground and hurt. 
 
 The child successfully brought an action for damages 
 against the egg-merchant, it being considered that he 
 was not guilty of contributory negligence, as he had only 
 obeyed a child's natural instinct in playing with the cart. 
 
 It is not to be inferred from this case that a child is incapable of child mav be 
 such contributory negligence as disentitles him from recovering, guilty of con- 
 The effect of this and other cases is to establish the rule that a tributary 
 child is to be judged as a child, so that we are not to expect the same ^ ^ 
 degree of care from him as from such as are of riper years ; but, 
 on the other hand, he must not get into mischief to the extent of 
 doing what he knows to be naughty: if he does, he is guilty of dis- 
 entitling contributory negligence. It is obvious, then, that the 
 law does not consider it "getting into mischief" to the required 
 extent for a child of six to play with carts left unattended in the 
 street. "The decision in Lynch v. Nurdm," says Parke B, in 
 Lygo r. Newbold (7), "proceeded wholly upon the ground that 
 the plaintiff had taken as much care as could be expected from a 
 
 (?) 9 Ex. 302, and see the American case of Binge v. Gardiner, 
 19 Conn. 507.
 
 274 CONTRIBUTORY NEGLIGENCE OF CHILDREN. 
 
 Lynch v. child of tender years ; in short that the plaintiff was blameless, 
 
 Nurdin ex- and consequently that his act did not affect the question." The 
 
 plained in cases f Abbott v. Macfie (A-), Mangan v. Atterton (/), and Single- 
 
 Lygo v - ton v _ Eastern Counties Railway Co. (m), may advantageously be. 
 
 New bold. * 
 
 referred to on this subject. In the hrst of these three cases a 
 
 Pulling child of seven playing in a Liverpool street, had pulled down on 
 
 down flap of himself the covering of a cellar which the defendant had left 
 cellar, leaning against a wall. It was held that he could not recover. 
 
 In Mangan v. Atterton a Sheffield whitesmith left a machine for 
 crushing oil-cake standing about in the street, without fastening 
 up the handle or taking any other precaution. Forth there came 
 bounding from the school just then the plaintiff, a little boy of 
 Playing with f°ur, hi s brother, aged seven, and some other boys. They in- 
 crushing oil- stantly collected round the Sheffield gentleman's machine ; one of 
 cake them turned the handle ; and then, by the direction of his brother, 
 
 machine. the plaintiff put his fingers in the cogs. The result of this scientific 
 
 experiment was an action against the owner of the machine. But 
 judgment was given for the defendant, on the double ground that 
 he had not been negligent, and that the little boy had been (n). 
 In the third case a little girl of three got trespassing on a railway. 
 Singleton's She Avas sitting on the parapet of a small wooden bridge when a 
 case. a train came up and cut off one or two of her legs. The driver 
 
 had seen the child, but made no attempt to stop the engine, con- 
 tenting himself with whistling. It was held that the child could 
 not recover damages against the company, — rather, however, be- 
 cause they had not been negligent at all, than because the plain- 
 tiff had been guilty of such contributory negligence as prevented 
 her from availing herself of the defendant's negligence. 
 
 Cortributorv I" tne American leading case of Hartfield v. Roper, 21 Wend, 
 negligence 615, the defendant, driving a sleigh without bells, had negligently 
 of parents. mn down a child of two playing about in a street by itself. In an 
 action by the child it was held that the negligence of its parents in 
 allowing it to wander unattended in a public road was an answer. 
 But the rule which visits the negligence of the fathers on the 
 children in this way is denied in some of the States of the Union, 
 and has not yet been adopted by the English courts (o). 
 
 (k) 2 H. & C. 744. Chambers, 3 Q. B. D., p. 339. 
 (/) L. R. 1 Ex. 239. (o) See. however, the Scotch 
 
 (m) 7 C. B. N. S., 287. cases of Davidson v. Monkland 
 
 (n) This case, however, will be Ry. C, 27 Jur. 541 ; Lumsden 
 
 found severely criticised by 71. Russell, 28 Jur. 181, and Bal- 
 
 Cockburn, C.J.. in Clark v. four v. Baird, 30 Jur. 124.
 
 TRESPASSERS AND LICENSEES. 275 
 
 Position of Plaintiff in regard to Defendant' s 
 Negligence. 
 
 [113.] 
 
 INDERMAUR v. DAMES. 
 
 [L. R.2C.P. 311 (1867).] 
 
 Mr. Dames was the owner of a sugar refinery, and 
 employed one Duckhatn, a gas engineer, to improve his 
 gas-meter. Duckham got his work done by a certain 
 Saturday evening ; But it was arranged that he or one 
 of his workmen should come on the following Tuesday 
 to see if the improvement was working satisfactorily. 
 Accordingly on the Tuesday the plaintiff, Indermaur, 
 presented himself as Duckham's representative to look 
 at the gas-meter. Now it happened that on the prem- 
 ises, and level with the floor, there was an unfenced 
 shaft used for the purpose of hauling up bales of sugar. 
 When the shaft was being used for that purpose, it was 
 usual and necessary that it should be unfenced ; but 
 when not being used there was no particular reason why 
 it should not be fenced. Indermaur fell through this 
 shaft, and brought an action for personal injuries. The 
 sugar people denied their liability to him, contending 
 that he was a mere licensee, and that they were under no 
 particular duty towards him. It was held, however, that 
 that he was not a mere licensee, as he had come on law- 
 ful business, and that, as the whole was from its nature 
 unreasonably dangerous to persons not usually employed 
 on the premises, tbey were liable. 
 
 When a person is injured on somebody else's land, and by that 
 somebody's degligence, the question is a very material one — 
 What was he doing there? 
 
 1. He may have been a trespasser. If so, he cannot, as a rule, Trespassers. 
 Tecover damages. But there are exceptions. For instance, though 
 a man has a right, as against trespassers, to have a dangerous pit Dangerous 
 in the middle of his field, he has no right to have one within twenty- pit.
 
 276 
 
 TRESPASSERS AND LICENSEES. 
 
 Spring-gun. 
 
 Bird v. 
 
 Holbrook. 
 
 Murley v. 
 Grove. 
 
 Licensees. 
 Going out to 
 dinner. 
 
 Concealed 
 danger. 
 
 five yards of the road (p). Bird r. Holbrook (q) is a well-known 
 authority on tins subject. Tbere tbe defendant, having had some 
 valuable flowers and roots stolen from his garden, which was at 
 some distance from his house, had set a spring-gun. The plaintiff, 
 a young fellow of nineteen, climbed a wall, during the day- 
 time, in pursuit of the stray fowl of a friend, and got shot. In 
 spite of the plaintiff being thus a trespasser, it was held that the 
 defendant was liable in damages. "There is no act," said Best, 
 C. J., "which Christianity forbids, that the law will not reach ; 
 if it were otherwise, Christianity would not be, as it has always 
 been held to be, part of the law of England. I am, therefore, 
 clearly of the opinion that he who sets spring-guns, without giv- 
 ing notice, is guilty of an inhuman act, and that, if injurious con- 
 sequences ensue, he is liable to yield redress to the sufferer." 
 • 24 & 25 Vict, c. 100, s. 31 (re-enacting 7 & 8 Geo. IV. c. 18), 
 makes it a misdemeanour to set spring-guns or man-traps, unless 
 it be for the purpose of protecting one's house at night, or of de- 
 stroying vermin 
 
 But in the recent case of Murley v. Grove (r), the defendant, 
 while erecting houses upon land adjoining a new road which had 
 not been dedicated to the public, had dug a trench across the 
 road for the purpose of making drains. The plaintiffs servant, 
 ■while driving the plaintiffs horses along the road after dark, 
 drove into the trench, there being no lights. It was held that 
 the plaintiff could not recover damages, there being no duty cast 
 on the defendant to protect any one using the road without per- 
 mission. 
 
 2. The plaintiff may have been a licensee. 
 
 In this position are guests. Whenever you go out to dinner, or 
 are stopping with a triend, you are a licensee ; and, in respect of 
 the ability to bring an.action against your host for his negligence, 
 you are little better than a trespasser. "J lady with a raluahh dress 
 goes out to dinner, and the servant, in handing the soup, negligently 
 spoils her dress; ivill an action lie against the master ?" (s). 
 
 A licensee can only maintain an action against his licensor 
 when the danger through which he has sustained hurt was of a 
 latent character, which the licensor knew of and the licensee did 
 not 
 
 A gentleman was once leaving a friend's house after paying a 
 call when a loose pane of glass fell from the door, as he was push- 
 ing it open, and cut him badly ; but it was held that he could not 
 
 (p) 5 & 6 Will. IV. c. 50, s. 
 70 ; and see Barnes v. Ward, 9 
 C. B. 392,and Hounsell r.Smith, 
 7C. B.. N. S., 731. 
 
 (q) 4 Bing. 62« : and see Ilott 
 r. Wilkes. 3 B & Aid. 304, and 
 Jordin v. Crump, 8 M.& W.782. 
 
 (/) 46 J. P. 300. "As to the 
 
 dictum in Gallagher v. Humph- 
 rey," said Cave, J., "I cannot 
 think that Crompton, J., can have 
 been correctly report < d. ' ' 
 
 (s) Per Pollock, C. B., in 
 Southcote v. Stanley, 1 H & N. 
 247.
 
 TRESPASSERS AND LICENSEES. 277 
 
 recover damages (/). "Where a person," said Bramwell, P>., "is gouthcote v. 
 in the house of another, either on business or for any other pur- Stanley, 
 pose, he lias a right to expect that the owner of the house will 
 take reasonable care to protect him from injur} 7 ; for instance, 
 that he will not allow a trap-door to be open, through which the 
 visitor may fall. But in this case my difficulty is to see that the 
 declaration charges any act of commission. W a person asked an- 
 other to walk in his garden, in which he had placed spring-guns 
 or man-traps, and the latter, not being aware of it, was thereby 
 injured, that would be an act of commission. But if a person 
 asked a visitor to sleep at his house, and omitted to see that the 
 sheets were properly aired, whereby the visitor caught cold, he 
 could maintain no action, for there was no act of commission, but 
 simply an act of omission" (it). 
 
 In the recent case of Burchell r. Hickisson (.r) the plaintiff was Little boy 
 a little boy of four, who one day accompanied his sister to the lulling into 
 defendant's house, where she was going on business. The girl 
 went up the defendant's steps all right, but the little boy tum- 
 bled through a gap in some railings out of repair into the area 
 below. It was held that the action could not be maintained, as 
 the little boy's position could be placed no higher than that he 
 was there lawfully, and was not a trespasser; and, that being so, 
 the only duty on the part of the defendant towards him was to 
 take care that there was no concealed danger, and of this there was 
 no evidence. 
 
 In Ivay v. Hedges (y) the defendant was the landlord of a Use of roof 
 house at Wapping, which was let out in apartments to several ,nr drying 
 tenants, each of whom had the privilege of using the roof for the 
 purpose of linen-drying. On an accident happening, it was held 
 that the mere license so given imposed no duty on the defendant 
 to fence. 
 
 SoinBatchelor v. Fortescue (z), a plaintiff suing under Lord Batchelorv. 
 Campbell's Act, was held to be disentitled to complain of the Fortescue. 
 defendant's negligence (even if she could show it, which she 
 could not), because her husband was only a bare licensee at the 
 most when he met with his death. He had been employed to 
 guard some unfinished buildings, and wandered needlessly to a 
 place where the defendant's workmen were carrying out some ex- 
 cavations, when a chain broke, and he was killed. "'There was 
 no evidence," said Brett, M.R., "to show that the defendant's 
 workmen had reason to expect the deceased to be at the spot 
 where he met with his death. There was no contract between the 
 defendant and the deceased: the defendant did not undertake 
 
 (f) Southcote v. Stanley, of* this distinction between 
 
 supra. The plaintiff appears commission and omission is not 
 
 really to have been staying at beyond question. See Smith 
 
 the defendant's hotel as a cus- on Negligence, p. 31. 
 tomer; but if so. that fact was (x) 50 L. J., C. P., 101. 
 not brought out by the plead- (y) 9 Q. B. D. 80. 
 ings. (■:) 11 Q. B. D. 474. 
 
 (v) The soundness, however,
 
 278 
 
 TRESPASSERS AND LICENSEES. 
 
 Other rases. 
 
 ( )n lawful 
 business. 
 
 Thames 
 waterman. 
 
 Guest at inn. 
 
 Elliott v. 
 Hall. 
 
 Other cases. 
 
 with the deceased that his servants should not be guilty of negli- 
 gence; no duty was cast upon the defendant to take care that the 
 deceased should not go to a dangerous place." 
 
 The cases of Corby v. Hill, 4 C. B., N. S., 556; Gautret v. Eg- 
 crton, L.R.2C. P. 371; Bolch v. Smith, 7 H. & N. 736; and 
 Wilkinson v. Fairrie, 32 L. J. Ex. 173; may also be referred to 
 on the question when a licensee can successfully sue. 
 
 3. The plaintiff may have been on lawful business. 
 
 And this is the best position of all to be in, the rule being that 
 where a person is upon premises by the invitation or permission 
 of the occupier, on lawful business in which both he and the oc- 
 cupier have an interest, there is a duty towards such person cast 
 upon the occupier to keep the premises in a reasonably secure 
 condition. Our friend Indermaur was considered to be in this 
 position; and so, in later cases, were a licensed waterman, who 
 went on board a barge on the Thames to complain of its illegal 
 navigation and get employment if he could (a), and a customer 
 at an inn on whom the ceiling of one of the rooms fell (b). 
 
 In Elliott v. Hall (c), the defendant, a colliery owner, had" con- 
 signed coals sold by him to the buyers by rail in a truck rented 
 by him from a waggon company for the purposes of the colliery. 
 Through the negligence of the defendant's servants the truck was 
 allowed to leave the colliery in a defective state, and the conse- 
 quence was that injury was occasioned to the plaintiff, one of the 
 buyer's servants, who was employed in unloading the coals, and 
 had got into the truck for that purpose. It was held that there 
 was a duty on the part of the defendant towards the plaintiff to 
 exercise reasonable care with regard to the condition of the truck, 
 and that he was liable. "Thisseems to me," said Grove, J., "a 
 much stronger case than Heaven r. Pender (rf), where it was held 
 that the defendant was liable. Indermaur v. Dames also does not 
 seem to me so strong a case as this. This is not the mere case of 
 a person lawfully coming into premises for the purposes of busi- 
 ness, but the defendant must have known that the plaintiff must 
 necessarily get into the truck for the purpose of unloading the 
 coal. The only case that seems somewhat in the defendant's 
 favour is the case of Collis v. Selden (e), where it was alleged that 
 the defendant improperly and negligently hung a chandelier in a 
 
 public-house But I do not think that that case is really 
 
 an authority which bears upon the circumstances of the present 
 case. 
 
 The reader should also refer, on this branch of the subject, to 
 Smith r. London and St. Katharine Docks Co., L. R. 3 C. P. 326; 
 
 (a) White v. France, 2 C. P. 
 I). 308. 
 
 (6) Sandys v. Florence, 47 L. 
 J., C. P., 599. 
 
 (c) 15 Q. B. D. 255. 
 
 (d) 11 Q. B. D. 503. 
 
 (e) L. R. 3 C. P. 495.
 
 SURVEYORS OF HIGHWAYS. 279 
 
 Chapman v. Rothwell, E. B. & E. 168 ; Nicholson v. Lane, and 
 Yorkshire Ry. Co., 34 L. J. Ex. 84 ; Holmes v. N. E. Ry. Co., 
 L. R. 4 Ex. 254 ; Martin u. G. N. Ry. Co., 24 L. J., C. P., 209 ; 
 Burgess v. G. W. Ry. Co., 32 L. T. 70 ; Wright v. L. and N. W. 
 Ry. Co,, 1 Q. B. D. 252 ; and Jewson v. Gatti, 1 C. & E. 564. 
 
 Actions against Surveyors of Highways, &c. 
 
 McKINNON v. PBNSON. [H4-] 
 
 [9 Exch. 009 (1854).] 
 
 This was an action against the surveyor of county 
 bridges for the county of Cardigan. One of his bridges 
 was so much out of repair that the plaintiff's carriage 
 was pitched into the river. In suing for the damage 
 thus done, the plaintiff practically admitted that the 
 a-ction could not be maintained at common law, but he 
 relied on a certain Act of Parliament passed rather late 
 in Greorge the Third's reign, which, in his view, gave 43 Geo. III. 
 him a right of action. It was held, however, that the 
 statute did not alter the common law in this respect, 
 and that the action, therefore, could not be maintained, 
 
 In 1788, in the case of Russell v. the Men of Devon (/), it had The Men of 
 "been held that no action would lie by an individual against th$. Devon. 
 inhabitants of a county for an injury sustained in consequence of 
 a bridge being out of repair. " It is better," said Ashhurst, J., 
 <; that an individual should sustain an injury than that the pub- 
 lic should suffer an inconvenience." 
 
 The leading case was followed a few years later in Young v. } '>ung v. 
 
 . Davis 
 
 Davis («/), which was an action by a foot passenger against some 
 
 Oxfordshire surveyors of highways for allowing a highway to be 
 
 out of repair, whereby the plaintiff fell into a bole. " It appears 
 
 to me," said Pollock, C.B., in that case, "if the plaintiff is to 
 
 .succeed that it would be enlarging the sphere of legislation very 
 
 (/) 2 T. R. 667. (g) 7 H. & N. 760.
 
 280 
 
 SURVEYORS OF HIGHWAYS. 
 
 ] visti notion 
 between mis- 
 feasance. 
 and non-fea- 
 sance. 
 
 Waterers as 
 well as sur- 
 veyors. 
 
 A sinking 
 town. 
 
 much, and rendering it impossible to get anybody to discharge 
 the duties of surveyor of highways ; because we all know what 
 will be the practical result. A surveyor of highways will be- 
 come a sort of insurer of every one travelling along the road, and 
 not a single accident will happen without an action being 
 brought. " But although a survey' >r is not liable for non-feasance, 
 he is for w/.s-feasance. Two or three years ago a vestry ordered 
 their surveyor to get the level of a road raised. The surveyor, 
 accordingly, employed a contractor for the labour part of the 
 job, but made no agreement with him as to fencing or lighting, 
 and reserved to himself the superintendence. The plaintiff driv- 
 ing along the road one night in his dog-cart was upset through 
 not seeing the obstruction, and it was held that the surveyor was 
 liable to him (h). 
 
 Moreover, surveyors of highways may be liable as having acted 
 in some other capacity. In a very recent case (i), the plaintiff, 
 whilst walking in Charles Street, Stepney, fell over the iron flap 
 cover to a water-meter box which was imbedded in the pave- 
 ment, and had worn smooth by traffic, and broke his leg. '"The 
 question to be considered," said Cotton, L.J., " is whether the 
 iron flap was laid down by the defendants as surveyors of high- 
 ways or in a different capacity and under a different authority, 
 so as to make them liable. It is clear that it was put down by 
 the defendants as wafercrs of the highway," i. e., under section 116 
 of the Metropolitan Local Management Act, 1855 (k). 
 
 In Burgess ?•. the Northwich Local Board (<) the action was by 
 some owners of houses abutting on a highway which was vested 
 in the defendants, a local board acting under 38 & 39 Vict. c. 55 
 (the Public Health Act, 1875), and having the powers and lia- 
 bilities of surveyors of highways. The abstraction of salt had 
 caused a subsidence of the ground, and the defendants found it 
 necessary to raise the road. To meet the new level of the road, 
 the plaintiffs raised their houses ; and now claimed compensa- 
 tion under section 308 of the Act. It was held, however, that, 
 as the highway was vested in the defendants, no action of tres- 
 pass could have been maintained by the plaintiffs even if more 
 materials had been placed on the road than a surveyor of high- 
 ways could justify, and that the plaintiffs had no right to have 
 
 (h) Pendlebury r.Greenhalgh, 
 1 Q. B. D. 36; and see Foreman 
 r. Mayor of Canterburv, L. K. 
 Q. B. 214. 
 
 (i) Blackmore p. Vestry of 
 Mile End Old Town, 51 L. J.. 
 Q. B., 496. following White p. 
 Hindley Local Board, L. R. 10 
 Q. B. '219. See also Kent v. 
 Worthing Local Board, 48 L.T., 
 
 X. S. 362, where the defendants 
 as water authority had fixed in 
 the highway an iron pipe with 
 a valve cover at the top, proper 
 in itself, but certain in the or- 
 dinary course of things to be- 
 come dangerous unless precau- 
 tions were taken. 
 
 (k) 18 & 19 Vict. c. 120. 
 
 (I) 6 Q. B. D. 264.
 
 SURVEYORS OF HIGHWAYS. 281 
 
 « 
 the road maintained at the level to which it had accidentally and 
 recently sank ; and that the works of the defendants were not 
 done ''in exercise of any of the powers" of the Act within sec- 
 tion 308, but were done, if not strictly in pursuance of their 
 duty as surveyors of highways, at all events in exercise of such 
 powers as surveyors of highways have; and, consequently, that 
 the plaintiffs were not entitled to compensation. 
 
 As to the liability of public officers other than surveyors of Liability of 
 highways, the following rule from Addison on Torts (ro) may he public 
 quoted : — '; Whenever an Act of Parliament imposes upon com- ',",' ies £ ener " 
 missioners, or upon any public body, the duty of maintaining 
 or repairing any public work, and special damage is sustained 
 by a particular individual from the neglect of the public duty, 
 an action for damages is maintainable against such commission- 
 ers or public body, unless there are provisions in the statutes 
 creating them for limiting their liability, or the duty of repair- 
 ing is not absolute ; the rule being that, in the absence of some- 
 thing to show a contrary intention, the Legislature intends that 
 the body, the creation of the statute, shall have the same duties, 
 and that its funds shall be rendered subject to the same liabili- 
 ties, as the general law would impose on a private person doing 
 the same things ; and this whether they have or have not funds 
 at their disposal for effecting the repairs ; though, if there are no 
 funds, there may be a difficulty in the way of the plaintiffs get- 
 ting his damages." 
 
 The student is also recommended to refer to the following other cases, 
 cases : — Hartnall v. Ryde Improvement Commissioners, 4 B. & 
 S. 361 ; Ohrby v. Ryde Commissioners, 5 B. & S. 743 ; Forbes v. 
 Lee Conservancy Board, 4 Ex. D. 116; Gibson v. Mayor of Pres- 
 ton, L. R. 5 Q. B. 218; Parsons v. St. Matthew, L. R. 3 C. P. 56; 
 Mersey Docks Trustees v. Gibbs, L. R. 1 H. L. 93 ; Parnaby v. 
 Lancaster Canal Co., 11 A. & E. 223; the Borough of Bathurst v. 
 Macpherson, 4 App. Ca. 256 ; Howitt v. Nottingham Tramways 
 Co., 12 Q. B. D. 16 ; and Barham v. Ipswich Docks Commission- 
 ers, 54 L. T. 23. 
 
 A word may be said about the liability of the Hundred to Damage by 
 make compensation for damage done by rioters. The statute to rioters, 
 be consulted is 7 & 8 Geo. IV. c. 31, and the leading case is 
 Drake v. Footitt, 7 Q. B. D. 201. That was a case arising out of 
 an election at Great Mario w in April, 1880, and it was held that 
 a house damaged by rioters is not "feloniously demolished 
 wholly or in part " so as to entitle the person damnified to com- 
 pensation from the Hundred under 7 & 8 Geo. IV. c. 31, s. 2, un- 
 less the rioters when attacking the house had an intention irholly to 
 destroy it. It would appear that the Hundred cannot be made 
 liable for things stolen by rioters, that being a substantive 
 
 fro) 5th ed., p. 667.
 
 282 ACTIONS AGAINST MASTERS. 
 
 and distinct felony (n). The law, however, is in an unsettled 
 
 and unsatisfactory state, and fresh legislation may be antici- 
 pated. 
 
 [116.] 
 
 Servant Suing Master for Injury during Ser- 
 vice. 
 
 [115.] PRIESTLEY v. FOWLER. 
 
 [3 M. & W. 1 (1837).] 
 
 Fowler was a butcher, and Priestley was his man. 
 It was Priestley's duty to take meat round in a van to 
 the various customers. These seem to have been pretty 
 numerous, for one day such a quantity of shoulders of 
 mutton and rounds of beef were put on board that the 
 van broke down, and Priestley's thigh was fractured. 
 The unfortunate butcher- boy now brought an action 
 against his master, but it was held that the action did 
 not lie. "The servant," said the court, "is not bound 
 to risk his safety in the service of his master, and may, 
 if he thinks fit, decline any service in which he reason- 
 ably apprehends injury to himself ; and in most of the 
 cases in which danger may be incurred, if not in all, 
 he is just as likely to be acquainted with the probabil- 
 ity and extent of it as the master." 
 
 MELLORS r. SHAW. 
 [30 L. J., Q. K, 333 (1861).] 
 
 This was an action by a miner against his masters, 
 the proprietors of the mine. The sides of the shaft had 
 been left in an unsafe condition, and in consequence 
 some of the " bind " fell on the man's head and injured 
 
 («) See Beckwith v. Wood, 1 B. & Aid. 487; Burrows v. 
 Wright, 1 East, 615; and Greasley v. Higginbottom, 1 East, 636.
 
 ACTIONS AGAINST MASTERS. 283 
 
 him severely. The plaintiff was ignorant of the dan- 
 ger under which he was working, but one of the defend- 
 ants, being the superintendent of the mine, was of course 
 aware of it. On these facts it was held that the action < 
 
 could be maintained. 
 
 As a rule, .1 servant cannot bring an action against his master Common em- 
 for an injury sustained in the course of the service. All the or- ployment. 
 dinary risks of the service, including the risk of one of his fel- General rule, 
 low-servants engaged in a common employment negligently caus- 
 ing him any injury, he is taken to have contemplated at the time 
 of the contract, and to have made allowance for his wages (o). 
 
 Until 1880 there were not many exceptions to this rule. But Exceptions, 
 it was the master's duty to take reasonable precautions to insure 
 the safety of his servants. Thus, if be had omitted to provide 
 competent lellow-servants, or safe and efficient machinery, or if 
 his own personal negligence — or even that of a person who might 
 be regarded as a deputy-master — had brought about the accident, 
 he was not exempt from liability ; unless indeed where, as in the 
 case of a servant being very well aware of the dangerous ma- 
 chinery he was working with, the maxim volenti non fit injuria 
 had application (p). 
 
 Though the doctrine of common employment has not by any Employers 
 means been abolished yet (q), — whether such a consummation is Liability 
 to be wished or not,— the Employers Liability Act, 1880 (43 & Act ' 188 °- 
 44 Vict. c. 42), gives "workmen" increased rights of action against 
 their masters for personal injuries sustained during the service. 
 " As far back," says Mr. Justice Cave, in his very clear judg- Historical 
 ment in Griffith v. the Earl of Dudley (r), " as the date of the review by 
 decision in Priestley v. Fowler, the law was that the workman p 
 could not recover for injuries sustained by him through the neg- 
 ligence of a fellow-servant. In Priestley v. Fowler this rule was 
 said to be founded upon an implied contract between master and 
 workman that the master should not be liable. The courts of 
 common law have always felt hesitation in holding that tbere 
 could be any right of action otherwise than arising out of con- 
 tract or tort. They therefore applied the doctrine of implied con- 
 tract, the effect of which, so far as a man's legal liability was eon- 
 
 (o) SeeWigrnore v. Jay, 5 Ex. v. New Gas Co., 1 Ex. D. 251 ; 
 3.54 ; Charles v. Tavlor,*3 C. P. Woodley v. Met. Ry. Co., 2 Ex. 
 1) V.):l ; Wilson v. Merry, L. R. D. 384 ; and Senior v. Ward, 1 
 1 Sc. App. 326 ; Swainson v. N. E. & E. 385. 
 E. Ry. Co., 3 Ex. D. 341 ; and (7) It is still the law with re- 
 Morgan c. Vale of Neath Ry. gard to all actions begun in the 
 Co., L. R. 1. Q. B. 149. High Court of Justice. The 
 
 (p) See Murphy v. Smith, 19 new Act will expire, unless re- 
 
 C. B., N. S., 361 ; Ashworth v. newed, on Dec. 31st, 1887.— 
 
 Stanwix, 1 B. & S. 437 ; Webb. Sec. 10. 
 i'. Tarrant, 18 C. B. 787 ; Allen (r) 9 Q. B. D. 365.
 
 284 ACTIONS AGAINST MASTERS. • 
 
 cerned, was much the same as if there had heen an express con- 
 tract. The doctrine was extended by Wilson v. Merry (s) to in- 
 juries caused to a workman by a foreman or person occupying a 
 position of superintendence in the same employment. The Em- 
 ployers Liability Act, was passed to remove the difficulty arising 
 from the decision in Wilson v. Merry. The effect of it is that the 
 workman may bring his action in five specified cases, and the em- 
 ployer shall not be able to say in answer that the plaintiff" occu- 
 pied the position of workman in his service, and must therefore 
 be taken to have impliedly contracted not to hold the employer 
 liable. In other words, the legal result of the plaintiff being a 
 workman shall not be that he has impliedly contracted to bear 
 the risks of the employment." 
 
 „. , . „ Let us proceed to consider the cases in which the new Act gives 
 
 Rights of , , • , 
 
 workmen a wor ™an the right to sue his employer. 
 
 under Act of The first question is, Who is a " workman?" The 8th section 
 
 1880. f the Act says — 
 
 " Work- " The expression ' workman ' means a railway servant and any 
 
 men." person to whom the Employers and Workman Act, 1875 (t) ap- 
 
 plies." 
 
 Turning to the Act referred to, we find that 
 " The expression 'workman' does not include a domestic or 
 menial servant, but save as aforesaid means any person who being 
 a labourer, servant in husbandr}', journeyman, artificer, handi- 
 craftsman, miner, or otherwise engaged in manual labour, whether 
 under the age of twenty-one years or above that age, has entered 
 into or works under a contract with an employer, whether the 
 contract be made before or after the passing of this Act, be ex- 
 press or implied, oral or in writing, and be a contract of service 
 or a contract personally to execute any work or labour." 
 
 Section 13 provides that the Act "shall not apply to seamen, 
 or to apprentices to the sea service. 
 
 The term '"workman," as above defined, includes one who has 
 contracted personally to execute manual work, although he is as- 
 sisted by others whom he selects and pays (u). But in Morgan 
 v. London General Omnibus Co. (x), it was held that the conduc- 
 tor of an omnibus was not entitled to the benefit of the Employ- 
 ers Liability Act. " I cannot think," said Bret, M.R., "that he 
 falls within any of the classes enumerated : he is not ' engaged in 
 manual labour,' he does not lift the .passengers into and out of 
 the omnibus ; it is true that he may help to change the horses, but 
 his real and substantial business is to invite persons to enter the 
 omnibus and to take and keep for his employers the money paid 
 by the passengers as their fares ; in fact, he earns the wages be- 
 coming due him through the confidence reposed in his honesty." 
 If the workman has been hurt through a preventible defect in 
 
 (s) L. R. rHrLTSec. 326. (x) 12 Q. B. D. 201, and see 
 
 (M 38 & 39 Vict. c. 90. Jackson v. Hill, 13 Q. B. D. 618, 
 
 in (iraingeru. Aynsley and and Brown v. ButterlyCoal Co., 
 
 Bromlej v. Tarns, G Q. B. D. 182. 53 L. T. 964.
 
 ACTIONS AGAINST MASTERS. 
 
 285 
 
 the condition of the irays, works, machinery, or plant used in his 
 master's business (.»/); or through the negligence of a superintend- 
 ent (z); or of any fellow-servant whose on/as lie had to obey, audi 
 was obeying, at the time of the accident (a); or through a fel- 
 low-servant's obedience to stupid rules or instructions of his mas- 
 ter (b); or through the negligence of a fellow-servant having the 
 charge or control of any signal, points, locomotive engine, or train 
 upon a railway (c); — in all these cases, — the workman (or, if he 
 dies, his representatives) may sue his employer for compensa- 
 tion {d). If, however, he was previously aware of the defect or 
 
 (//) The Act applies to the 
 case of plant being unfit for the 
 purpose for which it is used, 
 though no part of it is shown, 
 to be unsound. In Cripps v. 
 Judge, 13 Q. B. D. 583, the 
 plaintiff had been injured by 
 the breaking of a ladder, which 
 may have been good enough 
 for ordinary purposes, but 
 which was insufficient for the 
 particular purpose for which it 
 was being used, and he was 
 held entitled to recover, Heske 
 v. Samuelson, 12 Q. B. D. 30, 
 being approved and followed. 
 But in McGiffin r. Palmer's 
 Shipbuilding Co., 10 Q. B. D. 
 5, it was held that "any defect 
 in the condition of the ways" 
 meant a defect of a permanent 
 or quasi-permanent nature, so 
 that an action could not be 
 brought for an injury caused by 
 a piece of iron having been neg- 
 ligently left projecting into the 
 roadway. See also Paley v. 
 Garnet t, 16 Q, B. D. 52, and 
 Howe v. Mark Firth, W. N.Ap. 
 10, 1886. 
 
 (z) in Osborne v. Jackson, 11 
 Q. B. D. 619, it was held that 
 a man might be "in the exer- 
 cise of superintendence, "though 
 at the time voluntarily assist- 
 ing in manual labour, and 
 Shaffers v. General Steam Navi- 
 gation Co., 10 Q. B. D. 356, was 
 distinguished on the ground 
 that "the negligent person 
 there had two duties, and was 
 not negligent in his duty of 
 superintendence so as to cause 
 the accident." 
 
 (a) See Mill ward v. Midland 
 Railway Co., 14 Q. B. D. 68, 
 where the plaintiff, a boy of 14, 
 employed by a railway com- 
 pany as a van guard, had met 
 20 COMMON LAW. 
 
 with an accident (iron window 
 frames falling on him) through 
 obeying the directions of the 
 driver, and was allowed to re- 
 cover. But see also Bunker v. 
 the same railway company, 
 where another boy who had 
 done what his foreman told him 
 to do was less fortunate in his 
 litigation. " In this particular 
 instance," said the Court, "the 
 plaintiff, being under «the age 
 of 15, knew that by the rules of 
 the defendant company he was 
 not allowed to drive; he there- 
 fore was not bound to obey this 
 order, as the foreman was not a 
 person to compel his obedience 
 to it." (47 L. T. N. S., 476.) 
 
 (b) Rules or bye-laws having 
 the sanction of a government de- 
 partment cannot be objected to 
 as improper or defective. — Sec. 
 2, sub-s. 2. 
 
 (c) The term " railway " ap- 
 plies to a temporary railway 
 laid down by a contractor for 
 the purposes of the construction 
 of works; Doughty v. Firbank, 
 10 Q. B. D. 358. But a steam 
 crane, fixed on a trolly and 
 propelled by steam along a set 
 of rails, is not a "locomotive 
 engine" within the section; 
 Murphy v. Wilson, 52 L. J., Q. 
 B., 524. Trucks upon a siding 
 in a goods yard are " upon a 
 railway," for the sidings form 
 a part of the line; Cox ». G. W. 
 Rv. Co., 9 Q. B. D. 106. In 
 Gibbs v. G. W. Ry. Co., 12 Q. 
 B. D. 208, it was held that a 
 person who was employed by a 
 railway company to clean, oil, 
 and adjust the points was not a 
 "person having the charge or 
 control " of them. 
 
 (d) Sec. 1; and see Robins v. 
 Cubitt, 46 L. T. 535.
 
 286 
 
 ACTIONS AGAINST MASTERS. 
 
 Conditions of 
 suing under 
 Act of 1880. 
 
 Inaccurate 
 notices. 
 
 Amount re- 
 coverable 
 under Act of 
 
 1880. 
 
 negligence which caused the injury, he must have told his. mas- 
 ter about it, or he will be out of court altogether (e). 
 
 Written (/) notice (which, however, may be excused on good 
 grounds in case of death), giving the name and address of the per- 
 son injured, and stating in ordinary language the cause and date of 
 the injury, must be served (g) on the employer within six weeks, 
 and the action must be commenced (in the county court, unless 
 removed (h) on the application of either party) within six months 
 of the accident. In the case of death, the action may be com- 
 menced any time within twelve months from the time of death ( i). 
 
 Defects and inaccuracies in the notice required by the Act are 
 of no consequence unless the judge before whom the case is tried 
 believes two things, viz., first, that the defendant is prejudiced 
 in his defence by the bad notice, and secondly, that the defect or 
 inaccuracy was not the result of accident or ignorance, but was 
 for the express purpose of misleading (k). Moreover, "The 
 notice is supposed to be given by a person in humble sphere of 
 life, and not possessed of much knowledge. It is to be written 
 in 'ordinary language,' that is, the party is to use his own un- 
 tutored language. If it is to be construed with vigorous strict- 
 ness, the Act will be made nugatory " (l). 
 
 The plaintiff in an action under the Employers' Liability Act, 
 1880, cannot recover more than "such sum as may be found to 
 be equivalent to the estimated earnings, during the three years 
 preceding the injury, of a person in the same grade employed 
 during those years in " a similar employment and the same dis- 
 trict (in). In Borlick v. Head (») it was held that a plaintiff 
 might give evidence, not only of the wages which he had been 
 
 (e) Sec. 2, sub-s. 3; and see 
 Stuart v. Evans, 31 W. R. 706; 
 Weblin v. Ballard, 34 W. R. 455; 
 Griffiths v. London and St. 
 Katharine Docks Co., 13 Q. B. 
 D. 259; and Martin v. Conuah's 
 Quay Alkali Co., 33 W. R. 216. 
 In the last-mentioned case a 
 wagon was in a defective state, 
 of which the plaintiff was 
 aware, and he used it in such a 
 way as to cause injury to him- 
 self when he knew how to use 
 it and might have used it so as 
 not to cause injury to himself. 
 
 (/) Moyle v. Jenkins, 51 L. 
 J., Q. B., 112; and see Keen v. 
 Millwall Dock Co., 51 L. J., 
 Q. B., 277. The notice may 
 probably be contained in sev- 
 eral documents. 
 
 (g) As to mode of service, see 
 Adams v. Nightingale, 72 L. T., 
 p. 424. 
 
 (h) An action may be remov- 
 ed into the Superior Court (1.) 
 by certiorari, (2.) by order of 
 the High Court, or (3.) by or- 
 der of the county court where 
 it turns out that the amount is 
 beyond the jurisdiction of the 
 county court. See the recent 
 case of Munday v. Thames 
 Ironworks, etc., Co., 47 L. T., 
 N. S., 351. 
 
 (i) Sees. 4 and 7. 
 
 (k) Sec. 7. In Carter v. 
 Drysdale, 12 Q. B. D. 91, the 
 plaintiff's notice did not give 
 the date of the injury, but the 
 omission was held to be of no 
 consequence. 
 
 (/) Per Cave, J., in Stone v. 
 Hyde, 9 Q. B. D. 76; and see 
 Clarkson v. Musgrave, 9 Q. B. 
 D. 386. 
 
 (m) Sec. 3. 
 
 (n) 34 W. R. 102.
 
 NEGLIGENCE OF RAILWAY COMPANIES. 287 
 
 earning with the defendants, but also of what he had been get- 
 ting for overtime with another employer. "Section 3 of the 
 Employers Liability Act, 1880, " said Cave, J., "does not give. 
 a measure of damages, but the limit of the maximum damages 
 which may be awarded under that Act. " 
 
 A contract by a workman not to claim compensation for per- Contracting 
 sonal injuries under the Act is valid ; and, if the injury results out of Act. 
 in death, destroys the surviving relatives' right of action under 
 Lord Campbell's Act (o). 
 
 It is proposed by many persons to amend the Employers Lia- Probable 
 bility Act by preventing persons from contracting out of it. by Amendment 
 checking the removal of cases into superior courts, by abolishing 
 the necessity for notice, by raising the limit of compensation re- 
 coverable, by extending the benefits of the Act to seaman, and 
 in other ways. 
 
 A person who volunteers to assist servants engaged in their work Volunteers, 
 becomes their fellow-servants so far as an action for personal in- 
 juries against the employer is concerned (p\ But the consignee 
 of goods who with the employer's assent assists the employer's 
 servants to unload is not a volunteer (q). 
 
 Liability of Contracting Company for Negli- 
 gence of a Second Company. 
 
 THOMAS v. RHYMNEY RAILWAY CO. [117.] 
 
 [L. R. 6 Q. B. 266 (1871).] 
 
 Mr. Thomas was a railway passenger from Caerphilly 
 to Cardiff. Midway between these two stations was 
 Llandaff. From Caerphilly to Llandaff the line be- 
 longed to the Rhymney Railway Company, and from 
 Llandaff to Cardiff to the Taff Vale Railway Company, 
 the Llandaff station being also the exclusive property 
 and under the exclusive control of the latter company. 
 
 (o) Griffiths v. Dudley, 9 Q. S. 800. 
 B. D. 357. (q) Wright v. L. & X. W. Ry. 
 
 (p) Deggv. Midland Ry. Co., Co., 1 Q.- B. D. 252; and see 
 
 1 H. & N. 773 : and see Abra- Holmes v. N. E. Ry. Co., L. R. 
 
 ham v. Reynolds, 5 H. & N.143, 6 Ex. 123. 
 and Potter v. Faulkner, IB. &
 
 288 NEGLIGENCE OF RAILWAY COMPANIES. 
 
 The Rhymney Railway Company, however, had run- 
 ning powers over the line from Llandaff to Cardiff, and 
 issued through tickets for the whole journey from Caerp- 
 hilly to Cardiff. It was one of these tickets that Mr. 
 Thomas took ; and his contract therefore was with the 
 Rhymney Railway Company. 
 
 All went well till the episcopal city was reached ; but 
 at Llandaff station the station-master, a servant of the 
 Taff Vale Company, was guilty of a gross piece of bung- 
 ling. He allowed the train in which Mr. Thomas was 
 travelling to* leave the station only three minutes after 
 an engine and tender of the Taff Vale Company, carry- 
 ing no tail light, though the night was very dark, had 
 started on the same line of rails. The consequence was 
 that Mr. Thomas's train ran into the engine and tender, 
 and Mr. Thomas, with other passengers, was much hurt. 
 The question was whether the Rhymney Company were 
 responsible to the plaintiff for the negligence of the 
 Taff Vale Company, and it was held that they were, 
 for it was with them that the contract had been made. 
 
 Blake's case. I n deciding Tltomns v. The Rhymney Railway Co., the judges 
 followed a case of Great Western Railway Co. v. Blake (r), hold- 
 ing that it made no difference as to the defendants' liability 
 whether they ran over the other company's line by virtue of 
 running powers conferred on them by Act of Parliament or by 
 arrangement. 
 
 Mr. John on The principle is not confined to railway companies. A Mr. 
 board the John wished to go by the defendant's steam-boat from Mil ford 
 steamer. Haven to Liverpool. Passengers embarking with that object 
 
 used first to go on board a hulk in the harbour belonging, not to 
 the defendant, but to a Mr. W T illiams ; and thence they would 
 go on board the steamer. Through the negligence (presumably) 
 of Mr. Williams, a certain hatchway on board this hulk was left 
 unprotected, and Mr. John after taking his ticket fell down it (s). 
 For this disaster the steam-boat proprietor was held respon- 
 sible on the Blake and Rhymney principles, namely, that he 
 must be taken to have warranted that no part of the road should 
 be defective through negligence. 
 
 (r) 7 A. & N. 987. (s) John v. Bacon, L. R. 5 C. 
 
 P. 437.
 
 NEGLIGENCE OF RAILWAY COMPANIES. 289 
 
 It is to be observed, however, that the contract of a company Contracting 
 
 with the person to whom they have issued a ticket as to accidents company not 
 
 happening through other people's negligence extends only to per- responsible 
 
 sons connected with carrying the passenger. They are not re- collateral 
 
 ., , . ,. , . ,. , operations, 
 
 sponsible for collateral operations. In a case some years ago a 
 
 gentleman took a ticket from the .Midland Railway Company to 
 be carried by them on their line from Leeds to Sheffield. The 
 London and North Western Railway Company had running 
 powers over a portion of the line and through the driver disobey- 
 ing the Midland signals, one of their trains dashed into the Mid- 
 land train and injured the traveller bound for Sheffield. He 
 brought liis action, but was not successful, because, as he was in- 
 formed, the judges "cannot connect with the management of the 
 railway something which is the direct effect not of defective 
 regulations of the company, not of any act to which they were 
 parties, not of the neglect of any person whose services they use, 
 but of the neglect of some persons over whom they have no con- 
 trol whatever, and of whose services they do not make use" (t). 
 
 A railway company may protect itself by an unsigned condi- Effect of 
 tion from liability for the loss of goods beyond its own line, the conditions 
 Railway # and Canal Traffic Act only having reference to a com- i'r. a j " 
 
 pany's own line. The chief authority for this is a case where a 
 person, having taken a ticket from the South Eastern Railway 
 Company to go from London to Paris, lost his portmanteau be- 
 tween Calais and Paris on the Great Northern of France Railway 
 (w). In a recent case it appeared that a Mr. Burke had taken 
 from the South Eastern Railway Company a return ticket to 
 Paris. On the ticket was a condition (which Mr. Burke never 
 read or knew anything about) that the company would not be 
 responsible for anything happening off their lines. Mr. Burke 
 was injured on some French railway, which his ticket entitled 
 him to travel over and he went to law with the South Eastern 
 Railway. But it was held that the condition, though they had 
 not taken any sufficient steps to bring it to the plaintiff's notice, 
 absolved them from responsibility (x). 
 
 As to when the injured traveller can sue the company that has g u j ng t ne 
 been negligent, instead of the company that has given him a other corn- 
 ticket, the recent cases of Foulkes v. Metropolitan Ry. Co. (y) pany. 
 and Hooper v. L. and N. W. Ry. Co. (z) may be consulted. 
 
 Other cases that may be referred to on the subject-matter of Other cases. 
 
 (0 Wright v. Midland Ry. C. P. D. 1, and see Wat kins v. 
 
 Co., L. R. 8 Ex. 137. Rymill, 10 Q. B. D. 178. 
 
 (u) Zunz v. S. E. Ry. Co., L. (y) 5 C. P. D. 157. 
 R. 4 Q. B. 539. (a) 43 L. T. 570. 
 
 (*) Burke v. S. E. Ry. Co., 5
 
 290 NEGLIGENCE OP RAILWAY COMPANIES. 
 
 this note are Daniel v. Met. Ry. Co., L. R. 5 H. L. 45 ; Birfcett 
 v. Whitehaven Junction Ry. Co., 4 H. & N. 730 ; Buxton v. N, 
 E. Ry. Co., L. R. 3 Q. B. 549 ; Muschamp v. Lancaster and Pres- 
 ton Ry. Co., 8 M & W. 421 ; Coxon v. G. W. Ry. Co., 5 H. & N. 
 274 ; Wei by v. West Cornwall Ry. Co., 2 H. & N. 703 ; and Col- 
 lins v. Brist. and Ex. Ry. Co., 29 L. J. Ex. 41. 
 
 Person Employing Contractor not Generally 
 Responsible. 
 
 [118.] QUAEMAN v. BURNETT. 
 
 [ 6 M. & W. 499 (1840).] 
 
 • 
 
 The defendants were a couple of elderly ladies resid- 
 ing in Moore Place, Lambeth. They kept a carriage of 
 their own, but neither horses nor coachman, and they 
 were in the habit of hiring both from a job-mistress 
 named Mortlock. They generally had the same horses, 
 and always the same coachman, a steady, respectable 
 person named Kemp. They paid him 2s. a week, but he 
 received regular wages from Miss Mortlock. The man 
 had a regular Burnett livery, which he always put on 
 when he drove the elderly ladies, and which used to 
 hang up in their hall. 
 
 A day or two before Christmas Day, 1838, Kemp 
 drove the Miss Burnetts out as usual, and after deposit- 
 ing them at their door went in himself to leave his 
 livery. He knew the horses well, and trusted them to 
 stand still while he was changing his coat. His confi- 
 dence, however, was misplaced. The horses got fright- 
 ened at something, and bolted, finally upsetting the 
 plaintiff and severely injuring him. 
 
 The question now was whether Kemp was the ser- 
 vant of the Burnetts, so as to make them responsible for
 
 EMPLOYERS OF CONTRACTORS. 291 
 
 what had happened, on the principle respondeat su- 
 perior. Counsel for the plaintiff made great capital out 
 of the livery, the weekly payments, and similar circum- 
 stances tending to show that the defendants were the 
 domince pro tempore ; but in the end it was held that 
 they were not liable (a). 
 
 REEDIE v. LONDON & NORTH "WESTERN [119.] 
 
 RAILWAY CO. 
 
 [4 Exch. 244 (1849).] 
 
 About forty years ago the London and North Western 
 Railway Company, being engaged in constructing a 
 line between Leeds and Dewsburg, agreed with some 
 contractors named Crawshaw that the latter should 
 make two miles of it in a particular part. By the terms 
 of this agreement the company were to have a general 
 right of superintending the progress of the work, and 
 if the contractors employed incompetent workmen, the 
 power to dismiss them. This being the agreement 
 between the company and the contractors, it happened 
 that Mr. Reedie was one day taking a quiet stroll along 
 the Gromersall and Dewsbury turnpike road, and was 
 just passing under one of the company's viaducts in the 
 part of the line which was being done for them by 
 Messrs. Crawshaw and Co., when by the carelessness of 
 one of the contractors' workmen a big stone fell from 
 above and killed him. 
 
 This action was brought by the widow under Lord 
 Campbell's Act ; but she was unsuccessful, as the work- 
 man whose negligence had caused Mr. Reedie's death 
 was considered not to be a servant of the railway com- 
 pany, notwithstanding their power to dismiss him for 
 incompetence. 
 
 (a) The same point had been previously (in Laugher v. Pointer, 
 5 B. & C. 547) fully discussed, hut, through an equal division, 
 left undecided.
 
 292 
 
 EMPLOYERS OF CONTRACTORS. 
 
 Person em- 
 ploying con- 
 tractor not 
 generally 
 liable for con- 
 tractor's neg- 
 ligence. 
 
 Jones v. 
 
 Liverpool 
 
 Corporation. 
 
 Exceptions. 
 
 Interference. 
 
 To make one person responsible for the negligence of another, it 
 must be shown that the relation of master and servant subsisted 
 between them. 
 
 "I apprehend it to be a clear rule," said Willes, J., in 1870, 
 "in ascertaining who is liable for the act of a wrong-doer, that 
 you must look to the wrong-doer himself or to the first person in 
 the ascending line who is the employer and has control over the 
 work. You cannot go further back and make the employer of 
 that person liable" (b). 
 
 Quarman v. Burnett was followed in the recent case of Jones v. 
 the Liverpool Corporation («), where a person named Dean had 
 contracted with the corporation, as urban sanitary authority, to 
 supply by the day a driver and horse foi their watering-cart. In 
 an action to recover damages for injuries caused by the negligent 
 conduct of the driver whilst in charge of the cart it was held that 
 the defendants were not liable. 
 
 A contractor exercising an independent employment is not the 
 servant of the person who engages his services, and does not 
 make such person liable for any torts he or his servant may com- 
 mit (d). Nor, again, is a sub-contractor the servant of the con- 
 tractor who has employed him. A railway company entered 
 into a contract with A. to make part of their line. A. contracted 
 with B. to build a bridge in that part of the line, and B. in his 
 turn contracted with C. to erect a scaffold, which was necessary 
 for the building of the bridge. Through the negligence of C.'s 
 workmen somebody tumbled against the scaffold and by and by 
 brought an action against B., the builder of the bridge, for per- 
 sonal injuries. But it was held that he ought to have sued C, 
 if anybody (e). 
 
 There are, however, some exceptional cases in which a person 
 employing a contractor is liable for the contractor's wrongful 
 acts : — 
 
 1. Where the employer personally interferes. 
 
 The proprietor of some newly-built houses had his attention 
 drawn by a policeman to the fact that a contractor he had em- 
 ployed to make a drain had left a heap of gravel by the roadside. 
 The proprietor said he would get it removed as soon as possible, 
 and paid a navvy to cart it away. The navvy did not do his 
 work thoroughly, and a person driving home was upset and in- 
 jured. In an action by this person against the proprietor, Quar- 
 man v. Burnett (/) was cited for the defence, and it was urged 
 that it was the contractor who was liable. But the proprietor 
 was held liable, on the ground that it did not appear that the 
 contractor had undertaken to remove the gravel, and the proprie- 
 tor had busied himself about it (g). 
 
 (b) Murray v Carrie, L. E. 6 (e) Knight v. Fox, 5 Ex. 721. 
 C. P. 24. (/) 6 M. & W. 499. 
 
 (c) 14 Q. B. D. 890. (g) Burgess v. Gray, 1 C. B. 
 
 (d) Milligan v. Wedge, 12 578.' 
 Ad. & E. 737.
 
 EMPLOYERS OF CONTRACTORS. 293 
 
 2. Where ihe thing contracted in be done is unlawful Illegality 
 A company, without the special powers for that purpose which 
 
 they ought to have had, employed a contractor to open trenches 
 in the streets Sheffield. The plaintiff walking down the street, 
 fell over a heap of stones left there by the contractor, and broke 
 her arm. She succeeded iu getting damages out of the company, 
 the distinction being clearly drawn between a contractor being 
 employed to do something lawful and to do something unlaw- 
 ful (ft). 
 
 3. Where the thing contracted to he done is perfect/'/ lawful in Injurious 
 itself, but injurious consequences must in the natural course of things consequences 
 arise, unless effectual means to prevent them are adopted. not guarded 
 
 The defendant wishing to rebuild his house, employed a con- a " ainsr - 
 tractor to pull it down and erect a new one. The contractor under- p" er v ' 
 took the risk of supporting the plaintiff's house during the work, 
 and to make good any damage and satisfy any claims arising 
 thereon, but the defendant was held liable for injury to the 
 plaintiff's house, caused by the insufficiency of the means taken 
 by the contractor to support it (i). 
 
 The same thing was held in Hughes v. Percival (ft), which was Hughes v. 
 also a case of dangerous building operations. Percival. 
 
 4. Where an employer is bound by statute to do a thing efficiently, statutory 
 
 A railway company were authorised by Act of Parliament to obligation to 
 make an opening bridge over a navigable river. They employed ( '° tiling 
 a contractor, and that gentleman ingeniously made them a bridge P I0 P erl y- 
 which wouldn't open. The plaintiff's vessel was in consequence 
 prevented from navigating the river, and the company were held 
 responsible to him (I). 
 
 The following cases may also be referred to on the subject- Other cases, 
 matter of this note: — Gray v. Pullen, 5 B. & S. 970; Glover v. 
 East Lond. Waterworks Co., 17 L. T. 475; Blake v. Thirst, 2 H. 
 & C. 20; Bush v. Steinman, 1 B. & P. 408; and Angus v. Dalton, 
 6 App. Ca. 740. 
 
 Responsibility of Master for Torts of Servant. 
 
 LIMPUS v. LONDON GENERAL OMNIBUS CO. [120.] 
 
 [32 L. J. Ex. 34 (1862.)] 
 
 "During the journey,"' say the regulations of the 
 London General Omnibus Company, "he must drive 
 
 (h) Ellis r. Sheffield Gas Con- (ft) 8 App. Ca. 443. 
 
 sumers' Co., 23 L. J., Q. B., 42. (/) Hole v. Sittingbourne By. 
 
 CO Bower v. Peate, 1 Q. B. Co., CH.&N. 488. 
 D. 321.
 
 294 RESPONDEAT SUPERIOR. 
 
 his horses at a steady pace, endeavouring as nearly as 
 possible to work in conformity with the time list. He 
 must not on any account race with or obstruct another 
 omnibus, or hinder or annoy the driver or conductor 
 thereof in his business, whether such omnibus be one be- 
 longing to the company or otherwise." In defiance of 
 this excellent rule, one of the company's drivers be- 
 tween Sloane Street and South Kensington, obstructed 
 and upset a rival 'bus belonging to the plaintiff. In 
 an action for the damage so done it was urged for the 
 defendants that the driver was acting contrary to his 
 orders, and therefore outside the scope of his employ- 
 ment. This contention, however, was not successful, 
 for it was held that though the driver had acted reck- 
 lessly and improperly and in flat disobedience to his 
 express orders, he had acted, as he thought, for the 
 good of his employers, and sufficiently in the course of 
 his employment to make them liable. 
 
 [121.] POULTON v. LONDON & SOUTH WESTERN 
 
 RAILWAY CO. 
 
 [L. E. 2 Q B. 534 (1867).] 
 
 Mr. Poulton, a horse dealer, took a horse to the 
 Salisbury Agricultural Show, and, after winning any 
 number of prizes, returned with it to Romsey. When 
 he arrived at his destination he gave up a ticket for 
 himself, and a certificate for his horse. This, however, 
 did not satisfy the station-master, who called upon him 
 to pay 6s. lOd. for the carriage of the horse, under a mis- 
 taken notion that it could not be carried free by that 
 train. Poulton refused to pay this sum, and was con- 
 sequently arrested by a couple of policemen acting un- 
 der the station-master's orders, and detained in cus- 
 tody till it was found by telegraphing that Poulton was 
 right and the station-master wrong.
 
 RESPONDEAT SUPERIOR. 295 
 
 The injured horse dealer now brought an action 
 against the railway company for false imprisonment, but 
 was bowled over on a point of law. They successfully 
 answered his claim by saying that, as they themselves 
 would have had no right to apprehend the plaintiff for not 
 paying his horse's fare, so their servant the station-mas- 
 ter could have had no implied authority from them to do 
 what he did. 
 
 In order that a master may be responsible for a tort committed General rule, 
 by his servant, the latter must in general have been acting in the 
 course of his regular employment. If while driving me, or driving 
 on my business, my servant negligently injures a person, I am 
 clearly liable. So am I even if the accident occurs while the ser- Temporary 
 vant is temporarily deviating for a purpose of hisown. A contrac- deviation, 
 tor gave strict orders to his workmen that they were not to leave 
 their horses, or to go home during the dinner hour. One of them 
 however, disobeyed these orders, and went home to his dinner a 
 quarter of a mile off, leaving.his cart and horse standing unattend- 
 ed outside. They ran away, and injured the plaintiff's railings. 
 The man's master was held responsible, on the ground that the 
 workingman teas acting within the general scope of his authority to 
 conduct the horse and cart during the day (m). 
 
 But if the enterprise is entirely the servant's — if, for instance, he Total devia- 
 takes his master's carriage without leave for purposes entirely his tion. 
 own — the master is not responsible. One May Saturday in 1869 
 a city wine merchant sent a clerk and carman with a horse and 
 cart to deliver wine, at Blackheath, and to bring back a quantity 
 of empty bottles to the offices, which were the Minories. On the 
 homeward journey, after crossing London Bridge, they should have 
 turned to the right; instead of- that they turned to the left, and went in 
 the opposite direction on some private matter of the clerk's. While 
 thus going quite against their orders, they ran over a child. It 
 was held that the city wine-merchant was not responsible (/()• 
 
 It is obvious, however, that these two cases run somewhat fine. 
 
 A recent case on this subject is Stevens v. Woodward (o). The The clerk 
 plaintiff's were the well-known law publishers carrying on busi- who left the 
 ness at 119, Chancery Lane, and the defendants were some solic- ""'ater run- 
 itors occupying premises over their shop. In the private room "' 
 of one of the defendents was a lavatory, which the clerks had clear 
 instructions never to use. One afternoon, however, after this gen- 
 
 (m) Whatman v. Pearson, L. Q. B. 476, and see Wilson v. 
 R. 3 C. P. i±>. Owens, 16 L. R. Q. 225. 
 
 (m) Storey v. Ashton, L. R. 4 (o) 6 Q. B. D. 318.
 
 Cabby. 
 
 29G KKSPONDEAT SUPERIOR. 
 
 tleman had left, a disobedient clerk, tbinking no one would ever 
 know, went into tberoom to wash bis bands. " I turned the tap," 
 tbe young man afterwards said in evidence, "and the water did 
 not flow; and then I went out.'" But after tbe youtb badgoneout, 
 the water did llow, and flowed so abundently tbat a large num- 
 ber of treatises of Messrs. Stevens and Sons down below were 
 spoilt. In an action against tbe solicitors for tbe mischief thus 
 inflicted, it was held that tbe act of the clerk was not within the 
 scope of his authority, or incident to tbe ordinary duties of his 
 employment, and therefore bis masters were not liable. " Tlie 
 clerk, ' ' said Lindley, J. , " was a trespasser after his master had left. ' ' 
 Was be ser- The point, of course, is often taken for the defence in cases of 
 vant? this kind tbat the person causing the mischief was not the defen- 
 
 dant's servant so as to make him liable. An important class of 
 such cases are those in which it is sought to make the proprietor 
 of a cab liable for tbe negligence of the driver. Strictly, where 
 the driver has hired the cab from its owner for a fixed sum, tbe 
 relation between tbe parties is that of bailor and bailee, but it 
 has been held that the effect of the Acts of Parliment regulating 
 cabs is, in tbe interests of the public, to render tbe proprietor re- 
 sponsible for the torts of the driver. Thus, in the case of a cab 
 proprietor who let out a cab and horses by tbe day, the amount 
 paid for hire being independent oi the cabman's earnings, where 
 through the negligence of the latter his fare found himself minus 
 his luggage, the proprietor was held responsible (p). And in tbe 
 more recent case of Venables v. Smith (q), the arrangement be- 
 tween the parties being tbe same as in Powles v. Hider, it was 
 held that the proprietor of the cab was responsible to tbe plaintiff 
 King v. for a drunken driver's running him down. But in a later case 
 
 Spurr. than either of tbe above it has been held that where tbe driver 
 
 hired a cab, and himself jwovided the horse and harness, the owner 
 of the cab was not answerable for tbe consequences of the driver's 
 Master of negligence (r). In Steel v. Lester (s) the action was brought by 
 ship having tbe owner of a wharf at Spalding for injury done to his wharf 
 share of y,y a s i o0 p, which through tbe negligence of her master, a man 
 
 P ro s ' named Lilee, had broken loose from her moorings. The sloop 
 
 really belonged to Lester, and he was registered as the owner; but 
 Lilee did not merely act as hired servant : there was an agree- 
 ment between them by which Lilee not only had complete con- 
 trol over the vessel, but pocketed two-thirds of tbe net profits. 
 In spite of this agreement it was held that Mr. Lester must pay 
 for tbe mending of Mr. Steel's wharf. In Lucas t;.Mason (t), 
 
 (jp)Powels«. Hider,6El. &B1. (r) King v. Spurr, 8QB.D. 
 
 207; and see Fowler r. Lock, L. 104. 
 
 R. 7 C. P. 275. (s) 3 C. P. D. 121 
 
 {q) 2 Q. B. D9. 27. (t) L. R. 10 Ex. 251.
 
 RESPONDEAT SUPERIOR. 297 
 
 decided rather earlier than the two cases just referred to, the Xoisy 
 action was by a man who had been turned out of a Church churchmen. 
 Liberation Association meeting in Lancashire against the chair- 
 man, who had said, "I shall be obliged to bring those men to the 
 front ivho arc making the disturbance. Bring those men to the front. ' ' 
 It was held that there was not the ordinary relation of master 
 and servant here, and that the chairman was not responsible. 
 
 A man is not answerable for the tortious acts of his servant Lending 
 whom he has lent to another, committed while in the service of that servants, 
 other. This was held in a case in which some colliery proprie- 
 tors had agreed with a Mr. Roger Whittle that he should do some 
 sinking and excavating for them, and that they should place cer- 
 tain of their servants under his entire control. One of these ser- 
 vants, an engineer named Lawrence, fell asleep when he ought - 
 to have been particularly wide awake. It was held that the 
 plaintiff, who had suffered injury in consequence, could not main- 
 tain an action against the colliery proprietors, because, though 
 the engineer remained their general servant, yet he was acting 
 as "Whittle's servant at the time of the accident (?c). 
 
 A master is never responsible for the wilful and malicious act of Wilful and 
 his servant, even while acting in his employment. If, for exam- malicious 
 pie, a driver were to lose his temper, and, out of angry feeling, ac s ,° ser " 
 were to drive his master's carriage against another carriage, and 
 so bring about an accident, the master would not be responsible. 
 As Lord Kenyon said in a well-known case on the subject : 
 " When a servant quits sight of the object for which he is em- 
 ployed, and without having in view his master's orders pursues 
 that which his own malice suggests, he no longer acts in pursu- 
 ance of the authority given him, and his master will not be lia- 
 ble for such act (.v). 
 
 It is scarcely necessary to say that a man is not liable crimi- c r ime of ser- 
 nalhj for the acts of his servants (?/). vant. 
 
 A person who puts, another in his place to do a class of acts in 
 his absence necessarily leaves him to determine, according to the 
 circumstances which arise, when an act of that class is to be done, 
 and trusts him for the manner in which it is done. Thus, in an 
 action for assault, a railway company was held liable for the vio- 
 lence of a porter who roughly pulled a passenger out of a carriage 
 because he thought that it was the wrong compartment (z). And 
 where the superintendent at a railway station without reasonable 
 cause gave a passenger into custody for travelling without a ticket, 
 
 (m) Rourke ?•. White Moss Col- D. 42. 
 
 liery Co., 2 C. P. D. 205, and see (z) Bayley v. The Manchester, 
 
 Jones r. Corporation of Liver- Sheffield and Lincolnshire Ry. 
 
 pool, 14 Q. B. D. 890. Co., L. R. 7 C. P. 415, and 8C. 
 
 (x) Macmanus v. Cricket, 1 P. 148 ; see also Seymour v. 
 
 East, 106. Greenwood, 7 H. & N. 355. 
 
 0) Reg. v. Holbrook, 4 Q. B.
 
 298 RESPONDEAT SUPERIOR — RUINOUS PREMISES. 
 
 and an Act of Parliament authorised this to he done in the case 
 of passengers travelling without having paid their fare, the com- 
 pany was held liahle (a). But it is not within the ordinary scope 
 of a bank manager's authority to order the arrest or prosecution 
 of offenders (6), nor has the booking-clerk of a railway company 
 authority to give into custody a person whom he suspects of at- 
 tempting to rob the till, after the attempt has ceased (e). Simi- 
 larly a railway porter left in charge of a station does not render 
 the company liable in an action for false imprisonment when he 
 gives an innocent person into custody on the charge of stealing 
 the company's property (d). "There seems no ground for say- 
 ing," remarked Keating, J., " that what was done was in the 
 ordinary course of the business of the company, nor that it was 
 for their benefit, except in so far as it is for the benefit of all the 
 Queen's subjects that a criminal should be convicted." In the 
 , recent case of Richards v. The West Middlesex Waterworks Com- 
 pany (e), it was held that a bailiff who committed an unneces- 
 sary assault in levying a distress was not acting within the scope 
 of his authority and did not make his employers responsible. See 
 also Furlong v. South London Tramways Co., 1 C. & E. 316. 
 
 Ruinous Premises. 
 
 [122.] TODD r. FLIG-HT. 
 
 [9 C. B. N. S. 377 (I860).] 
 
 Flight bought a shaky old house next door to the plain- 
 tiff's chapel, and let it to a tenant. By and by the house 
 tumbled down on the chapel, and did it the mischief in 
 respect of which this action was brought. Mr. Flight's 
 answer to the claim was — "The occupier, my tenant, is 
 responsible ; not I, the innocent reversioner." But it 
 was- held that, as Flight had let the house when he 
 
 (a) Goff v. The Great North- 270. 
 
 em Ry. Co., 3 E. & E. 672 ; see (c) Allen v. The London and 
 
 also Moore v. The Metropolitan South Western Ry. Co., L. R. 
 
 Ry. Co., L. R. 8 Q. B. 36, and 6 Q. B. 65. 
 
 Edwards v. Midland Ry. Co., 6 (d) Edwards v. The London 
 
 Q. B. D. 287. and North Western Ry. Co., L. 
 
 (b) Bank of New South Wales R. 5 C. P. 445. 
 
 v. Owston, L. R. 4 App. Cas. (e) 15 Q. B. D. 660.
 
 KUINOUS PREMISES. 299 
 
 knew the chimneys to be in a very dangerous condition, 
 and as the building had fallen by the laws of nature and 
 not through the default of the tenant, it was he who 
 must pay. 
 
 The general rule is that the occupier, not the landlord, is re- Occupier 
 
 sponsible for any injury happening to a third person through generally 
 
 premises being out of repair. Thus, in Tarry v. Ashton (/), it liable. 
 
 Avasheld that an occupier in the Strand who had a lamp project- The rotten 
 
 ing several feet across the pavement was bound to keep it in re- *\ im V ln tne 
 
 . • otranu. 
 
 pair so as not to be dangerous to persons passing along the street, 
 
 and was liable for damage done to an old woman on whom it fell 
 through want ot repair, notwithstanding that he had employed 
 a competent contractor to put it right. "There are only two L ari (ii or (i 
 ways," said the court, in a recent case (g), where an insufficiently liable in only 
 fastened chimney-pot got dislodged by a high wind and extin- two cases, 
 guished somebody, "in which landlords or owners can be made 
 liable in the case of an injury to a stranger by the defective re- 
 pair of premises let to a tenant, the occupier, and the occupier alone, 
 being prima facie liable : first, in the case of a contract by the land- 
 lord to do the repairs, where the tenant can sue him for not repair- 
 ing; secondly, in the case of a misfeasance by the landlord, as, 
 for instance, where he lets premises in a ruinous condition." 
 
 But a landlord is liable who lets land with a continuous nui- Letting land 
 sance upon it which he takes no steps to remove ; e.g., with an with nui- 
 obstructive wall (h), or a stinking privy (/). He is not liable, sance. 
 however, for a nuisance occasioned by the particular use to which Nuisance 
 
 the occupiers choose to put the premises (k), unless, indeed, the crea e 5 ^ 
 1 r i \ 11 occupier. 
 
 nuisance arises naturally and of necessity from the use of the 
 premises as contemplated by the demise (/). 
 
 Where the servant of the defendant causes the nuisance in the Whiteley v. 
 course of his employment, the defendant maybe liable, thougn Pepper, 
 neither occupier nor landlord ; e.g., where the carman of a coal 
 merchant delivering coals at a customer's removed an iron plate 
 in the footway without taking proper precautions against acci- 
 dents (m). 
 
 The following cases may also be consulted: — Pretty v. Bick- Other cases, 
 more, L. E. 8 C. P. 401 ; Gwinnell v. Earner, L. R. 10 C. P. 658; 
 Payne v. Rogers, 2 PI. Bl. 349 ; Russell v. Shenton, 3 Q. B. 449 ; 
 White v. Jameson, L. E. 18 Eq. 303 ; and Bishop v. Bedford 
 Charity, 1 E. & E. 697. 
 
 (f) 1 Q. B. D. 314. (k) Rich v. Basterfield, 9 L. 
 
 (g) Nelson v. Liverpool Brew- T. 356. 
 
 erv Co., 2 C. P. D. 311. (1) Harris v. James, 35 L. T. 
 
 (h) Rosewell v. Prior, 2 Salk. 240. 
 459. (m) Whiteley v. Pepper, 2 Q. 
 
 (0 R. v. Pedly, 1 A. &E. 822. B. D. 276.
 
 300 NEGLIGENT KEEPING OF FIRE. 
 
 Damage from Sparks of Railway Engines. 
 
 [123.] VAUGHAN v. TAFF VALE RAIL W AY CO. 
 
 [.-> JT. & X. 079 (I860).] 
 
 A quarter of a century ago Mr. Yaughan was the pro- 
 prietor of a plantation adjoining the embankment of the 
 Taff Vale Railway Company. The grass growing in the 
 plantation was of a vory combustible nature, and so were 
 some dry branches. In fact the whole was graphically 
 described by the plaintiff himself as being "in just 
 about as safe a state as an open barrel of gunpowder 
 would be in the Cyfarttfa Rolling-mill." One day this 
 susceptible plantation was discovered to be on fire, and 
 eight acres of it were burnt. It was not disputed that 
 it had taken fire from a spark from one of the defend- 
 ants' engines, but they contended, and it was decided, 
 that they were not responsible, as they icere authorised 
 to use such engines, and had adopted every precaution 
 that science could suggest to prevent injury. 
 
 Train In the earlier case of R. v. Pease (n) it had been derided that a 
 
 frightening railway company authorised by statute to use locomotive engines 
 horses. are not indictable for a nuisance if their engines frighten the 
 
 horses of persons travelling along a highway running paraHel to 
 the line. "The legislature," said the court, " must be presumed 
 to have known that the railroad would be adjacent tor a mile to 
 the public highway, and consequently that travellers upon the 
 highway would be in all probability incommoded by the passage 
 of locomotive engines along the railroad. That being presumed, 
 there is nothing unreasonable or inconsistent in supposing that 
 the legislature intended that the part of the public which should 
 use the highway should sustain some inconvenience for the sake 
 of the greater good to be obtained by other parts of the public in 
 the more speedy travelling and conveyance of merchandise along 
 the new railroad." 
 
 (n) 4 B. & Ad. 30, and see Lea Conservancy Board v. Mayor of 
 Hertford and others, 1 C. & E. 299.
 
 NEGLIGENT KEEPING OF FIRE. 301 
 
 The leading case and the one just referred to were both ap- The vibration 
 proved in the great case of the Hammersmith Railway Company case. 
 v. Brand (o), where it was held that the Lands Clauses Consolida- 
 tion Act, and the Railways Clauses Consolidation Act, do not 
 contain any provisions under which a person, whose land has not 
 been taken for the purposes of a railway, can recover statutory 
 compensation from the railway company in respect of damage or 
 annoyance arising from vibration occasioned (without negligence) 
 by the passing of trains, after the railway is brought into use, 
 even though the value of the property has been actually depre- 
 ciated thereby. 
 
 The recent case of the London, Brighton and South Coast Rail- Truman's 
 way Company v. Truman (p), is to the same effect. The occu- case - 
 piers of the houses near the East Croydon Station were very much 
 annoyed by the noise made by cattle and drovers brought on 
 to the land of the railway company, but it was held that the 
 company were protected by their Act against legal proceedings 
 for a nuisance. The Vaughan, Tease, and Brand cases were fol- 
 lowed, and the Hill case was distinguished. "I think it is 
 enough," said Lord Halsbury, L.C., referring to the last men- 
 tioned case, "in discussing that case to say that the ground 
 of the decision was one which distinguished it from the present 
 by reason of the very nature of the enactment which Avas then 
 under discussion. The Railway Acts, treated as a well-known 
 and recognised class of legislation, were expressly and carefully 
 distinguished from the permissive character of the legislation 
 which your lordships were then construing. Broadly stated, the 
 distinction taken amounted to this, that a small-pox hospital 
 might be built and maintained if it could be done without creat- 
 ing a nuisance, whereas the Railway Acts were assumed to 
 establish the proposition that the railway might be made and 
 used whether a nuisance were created or not." 
 
 On the other hand, if a company have been guilty of negli- Negligence, 
 gence — indeed, if they have not adopted the latest appliances to 
 prevent danger — their statutory authority will not help them (q). 
 An important case decided about fifteen years ago is Smith v. The 
 L. and S. W. Ry. Co. (r). In the middle of a hot summer some 
 workmen of the company, who had been cutting the grass and 
 trimming the hedges by the side of the line, left the trimmings 
 and stuff lying about in heaps, instead of carting them all away. 
 After the heaps had been there a fortnight, they were one day — 
 presumably from the sparks of an engine of the company that 
 
 (o) L. R. 4 H. L. 171. W. Ry. Co., 10 C. B., N. S., 
 
 (p) 11 App. Ca. 45. But see 89; and see Geddes ». Bann 
 
 R. v. Essex, 14 Q. B. D. 753, Reservoir, 3 App. Ca. 430, and 
 
 and Gas Light Co. v. St. Mary Brine v. G. W. Ry. Co., 31 L. 
 
 Abbotts, 15 Q. B. D. 1. J.. Q. B., 101. 
 
 {q) Fremantle v. L. and N. (r) L. R. 6 C. P. 14. 
 21 COMMON LAW.
 
 302 
 
 NEGLIGENT KEEPING OF FIRE. 
 
 \'<> statutory 
 authority. 
 
 Statutory 
 authority, 
 but common 
 law rights 
 reserved. 
 Small -pox 
 hospitals. 
 Traction 
 engines. 
 
 ( )ther cases. 
 
 House on fire. 
 
 Vaughan 
 Menlove. 
 
 had just gone by — discovered to he on fire. The fire was fanned 
 by a high wind, and finally burnt down the cottage of Smith, two 
 hundred yards off. It was held that the defendants, though their 
 engines were of the best possible construction, were responsible 
 for the damage thus done. So it has been held to be actionable 
 negligence to blow off steam at a level crossing (s,\ 
 
 Moreover, if persons are not authorised by statute to run loco- 
 motive engines, and yet do so, they are liable for injuries result- 
 ing, though negligence is expressly negatived (t). This is on the 
 principle of Fletcher v. Rylands («), viz., that when a man brings 
 or uses a thing of a dangerous nature on his own land, he must 
 keep it in at his own peril. 
 
 Further, where by statute a thing is permitted, not directed, to 
 be done, it is not in general to be inferred that the right of action 
 is taken away for a nuisance caused by the doing of such thing, 
 even if such nuisance is not due to any negligence in the manner 
 of the doing it. In virtue of this principle, some property 
 owners at Hampstead a few years ago managed to kick out a 
 small-pox hospital from their neighbourhood (or), and a farmer 
 down in Wiltshire got damages out of the owner of a traction 
 engine, the sparks from which had in some unaccountable way 
 set on fire one of his stacks. "It is hardly contended," said 
 Baggallay, L.J., "that the defendant isnot liable at common law; 
 but section 5 of the Locomotive Act, 1865, is relied upon as afford- 
 ing a defence. But I think it quite clear that the right at com- 
 mon law is preserved by section 12." 
 
 The following cases may also be referred to as to injuries re- 
 sulting from the exercise of statutory powers: — Cator v. Lewis- 
 ham Board of Works, 5 B. & S. 115; Lawrence v. G. N. Ry. Co., 
 16 Q. B. 653; Fleming v. Manchester Corporation, 44 L. T. 517; 
 Brownlow v. Metr. Board, 31 L. J. C. P. 140; Manley v. St. 
 Helens, &c, Co., 2 H. & N. 840; and Milnes v. Huddersfield, 10 
 Q. B. D. 124. 
 
 The law was formerly much stricter about the safe keeping of 
 fire than it is now. A man was responsible for an accidental fire 
 which broke out on his premises and burnt his neighbour's house. 
 And in days when houses were mostly made of Avood it was quite 
 right to be strict. But by 14 Geo. III. c. 78 (the Building Act) 
 it was provided that "no action should lie against any person in 
 whose house, chamber, stable, barn, or other building, or on 
 whose estate any fire should . . . accidentally begin" (y). A 
 case of some celebrity on the subject is Vaughan v. Menlove (z). 
 
 (s) Manchester South Junc- 
 tion Ry. Co. v. Fullarton, 14 C. 
 B., N.S., 54. 
 
 (t) Jones v. FestiniogRy.Co., 
 L. R. 3 Q. B. 733. 
 
 (m) See p. 255. 
 
 (x) Metr. Asvlum District v. 
 Hill, 6 App. Ca. 193; and see 
 Vernon v. Vestry of St. James, 
 16 Ch. D. 449. 
 
 (y) Sec. 86. 
 
 (s) 3Bing., N. C. 468.
 
 SUPPORT FROM NEIGHBOURING LAND. 30-3 
 
 A farmer in Shropshire had a hayrick in a highly dangerous con- 
 dition. It smoked, and steamed, and showed unmistakeable 
 signs of being about to take fire. To the advice and remon- 
 strances of his neighbors who pointed out its condition all the 
 answer the farmer vouchsafed was, " Oh, nonsense ! I'll chance 
 it. " Finally, indeed, he did take a kind of precaution ; he 
 made a chimney through the rick ; which, though done with 
 good intentions, was scarcely wise. The rick took fire, and burnt 
 the plaintiff's cottages in the next field. For this damage the 
 farmer was held responsible. "The care taken by a prudent 
 man, " said Tindal, C. J., "has always been the rule laid down ; 
 and as to the supposed difficulty of applying it, a jury has always 
 been able to say whether, taking that rule as their guide, there 
 has been negligence on the occasion in question." 
 
 A master is responsible (in spite of 12 Geo. III. c. 73, c. 35, Fires caused 
 which inijioses penalties on them) for fires negligently caused by by servants, 
 his servants whilst carrying into effect their master's orders (a). 
 But in Williams v. Jones (b) a master was held not liable for a 
 fire caused by the negligent use of a pipe by his servant, because 
 fire had no kind of connection with the work the man was en- 
 gaged on ; and a similar view was taken in another case (c), 
 where a maidservant, whose business was simply to light a fire, 
 took it into her head to clear the chimney of soot by setting 
 it on fire, and burnt the whole place down. 
 
 Support from Neighbouring Land. 
 
 SMITH v. THACKERAH. 
 [L. R. 1 C. P. 564 (1866).] 
 
 Mr. Smith having built a wall close to the edge of 
 his land, his neighbour, Mr. Thackerah, proceeded to 
 dig a well on his own land, but within a few feet of 
 the wall. The consequence was, down went Smith's 
 wall. Smith now went to law for the injury done to 
 his wall, but, as it appeared that, if there had been no 
 
 (a) Tubervil v. Stamp, 1 Salk. of the majority of the Ex- 
 
 13. chequer Chamber. 
 
 (6) 3 H. & C. 602. Justices (c) McKenzie v. McLeod, 10 
 
 Blackburn and Mellor, how- Bing. 385. 
 ever, dissented from the view 
 
 [124.]
 
 SU4: 
 
 SUPPORT FROM NEIGHBOURING LAND. 
 
 building on Smith's land, he would have suffered no 
 appreciable damage by Thackerah's proceedings, it was 
 held that lie had no right of action. 
 
 Sic ntcre tuo. 
 
 Unweighted 
 by buildings. 
 
 Brown v, 
 Robins. 
 
 Angus v. 
 Dalton. 
 
 Every man must so use his own property as not to injure his 
 neighbour's. In virtue of this principle an owner of land is en- 
 titled to require that his neighbor, whether he be the owner of 
 the subjacent soil or of the adjacent land, shall not so treat it as 
 to deprive him of due support. This right, however, exists only 
 in favour of land unweighted by buildings, that is to say, of 
 land in its natural state. The most obvious common sense dic- 
 tates that a person has no business to load his own soil with 
 buildings in such a way as to make it require the support of his 
 neighbour's land. Such rights to support, however, may be ac- 
 quired by grant or prescription. This grant may be implied. 
 For example, when one man sells (another) part of his land for 
 building purposes, he impliedly grants sufficient lateral support 
 from his adjacent land for such buildings. He would not be 
 allowed, for instance, to work mines dangerously near them (d). 
 And, even if there is no such easement by grant or prescription, 
 yet, if the damage done to the dominant land is so considerable 
 as to be actionable, damages may be recovered for injury sus- 
 tained by recently erected buildings. *'The moment the jury 
 found, " said Pollock, C. B., in Brown v. Robins (c), "that the 
 subsidence of the land was not caused by the weight of the 
 superincumbent buildings, the existence of the house became 
 unimportant in considering the question of the defendant's lia- 
 bility. It is as if a mere model stood there, the weight of which 
 bore so small a proportion to that of the soil as practically to add 
 nothing to it." Thus, if in Smith v. Thaclerah it had appeared 
 that Smith's land in its natural state would have suffered ap- 
 preciable damage by Thackerah's well, Smith would have been 
 entitled to claim compensation for the injury occasioned to his 
 wall. 
 
 The recent case of Angus r. Dalton (/) is very important on 
 this branch of the law. The action (originally tried before Lush, 
 J., at the Newcastle summer assizes, 1876) was brought for dam- 
 ages in respect of injuries to the plaintiff's coach factory by 
 pulling down the adjoining house. After a dreadful amount of 
 litigation, the plaintiff was successful ; it being held that a right 
 to lateral support from adjoining land may be acquired by twenty 
 years' uninterrupted enjoyment for a building proved to have 
 been newly built, or altered so as to increase the lateral pressure, 
 
 (d) Elliot v. N. E. Ry. Co., 
 10 H. L. C. ; and see Siddons 
 v. Short, 2 C. P. D. 
 
 (e) 4 H. & N. 186. 
 (/) 6 App. Ca. 740.
 
 SUPPORT FROM NEIGHBOURING LAND. 305 
 
 at the beginning of that time, and that it is so acquired if the en- 
 joyment is peaceable and without deception or concealment, and 
 so open that it must be known that some support is being en- 
 joyed by the building. 
 
 But, as between adjoining houses, the general rule is that there Adjoining 
 is 110 obligation toicards an eighbour cad by law on the owner of a houses. 
 house, merely as sucfi, to keep it standing and in repair : all he is 
 bound to do is to prevent its becoming a nuisance and falling on 
 to his neighbour's house (g). Cut a right to support of the kind 
 may be gained by grant, express or implied. Where, for in- 
 stance, two houses are built by the same man, and depend on 
 one another's support, there remains a mutual right to support 
 after they have passed into the hands of different owners (h). 
 
 It is to be observed that the right to support which a man may Neo-liience. 
 have in favour of his land or buildings is quite independent of 
 the question of negligence. A man, of course, is always respon- 
 sible to his neighbour for carrying out works on his own land in 
 a negligent and improper way. 
 
 In the important case of Bonomi v. Backhouse (i) the question B onom i v 
 arose as to the time at which an actionable injury arises, and in Backhouse, 
 the end it was held that it dates, not from the time of the com- 
 mencement of the wrong-doing — the digging, for instance — but 
 from the time oi the plaintiff's first sustaining actual injury : the 
 effect of which is that he will not necessarily be barred by the 
 Statute of Limitations lrom bringing his action seven or eight 
 years after the defendant's commencing to do that which ulti- 
 mately resulted in injury to the plaintiff. 
 
 The recent case of Mitchell v. The Darley Main Colliery Com- D ar i ev Main 
 pany (£), should be carefully studied. The plaintiff was the Colliery case, 
 owner of some land at Darfield, near Doncaster, and in 18G7 and 
 1868, but not afterwards, the defendants worked a seam of coal 
 lying under and near to his land, which subsided in consequence 
 of their excavations. Some cottages of the plaintiff standing on 
 his land were damaged by the subsidence, and were repaired by 
 the defendants. In 1882 a second subsidence of the plaintiff's 
 land occurred owing to the defendants workings in 1867 and 1868, 
 and the plaintiff's cottages were again damaged. In an action t 
 it was held (finally by the House of Lords) that the plaintiff's 
 right to sue for the damage done to his cottages in 1882 was not 
 barred by the Statute of Limitations (/). 
 
 (g) Chauntler v. Robinson, 4 operative Society, 16 L. E. Ir. 
 
 Ex. 163. 305. 
 
 {h) Richards r. Rose, 9 Ex. [i). 9 H. L. C. 503. 
 
 218; and see Hide v. Thorn- (k) Overruling Lamb v. Wal- 
 
 borough. 2 C. & K. 250. Solo- ker, 3 Q. B. D. 389. 
 
 iron r. Vintners Co., 4 H. & N. (/) In connection with this 
 
 585, and Latimer v. Official Co- case see the case of Brunsden v.
 
 306 SUPPORT FROM NEIGHBOURING LAND. 
 
 Land sun- -^ n owner of land has no right at common /aw to the support of 
 
 ported by subterranean water. There is nothing, therefore, apart from con- 
 water, tract, to prevent an adjoining landowner from draining his soil 
 if for any reason it becomes necessary or convenient for him to do 
 
 so (»i). 
 
 Highway * D a re cent case of the Highway Board of Macclesfield v. Grant 
 
 supported by («), the action was brought to recover some money the plaintiffs 
 wall, had spent in repairing a wall supporting their highway. The 
 
 wall belonged to the defendant, and the plaintiffs thought that, 
 as the defendant and his predecessors had occasionally repaired 
 it, he and his successors ought to go on doing so for ever. The 
 defendant did not see it, and his objection was supported by Mr. 
 Justice Lopes, who considered that "any repairs done by the de- 
 fendant or his predecessors in title were done for their own con- 
 Tenience, and not in consequence of any obligation." 
 Other cases. The following cases on the subject-matter of this note should 
 also be consulted : — Rowbotham v. Wilson, 6 E. & B. 593 ; Part- 
 ridge v. Scott, 3 M. & W. 220 ; Mundy v. Duke of Rutland, 46 
 L. T. 477 ; Humphries v. Brogden, 12 Q. B. 743 ; Corporation of 
 Birmingham v. Allen, 6 Ch. D. 284 ; Aspden v. Leddon, 1 Ex. 
 D. 496 ; Davis v. Treharne, 6 App. Ca. 460 ; Lamaitre v. Davis, 
 46 L. T. 407 ; Rigby v. Bennett, 21 Ch. D. 559 ; Normanton Gas 
 Co. v. Pope and Pearson, 52 L. J., Q. B., 629 ; Love v. Bell,' 9 
 App. Ca. 286 ; Chapman v. Day, 47 L. T. 705 ; and Dixon v. 
 White, 8 App. Ca. 833. 
 
 Nuisances. 
 
 [125.] SOLTATJ v. DE HEUD. 
 
 [2 Sim. N. S. 133 (1851).] 
 
 Mr. Soltau was a family man residing in a semi-de- 
 tached bouse at Clapham. The adjoining house was, 
 from 1817 to 1848, occupied as a private house, but in 
 the latter year it was bought by a religious order of 
 Roman Catholics, calling themselves "The Redemp- 
 
 Humfrey, 53 L. J.. N. S., 476, of the same act of negligence 
 
 where it was held by the Court but which did not develop till 
 
 of Appeal (dissentiente, Lord after the earlier action had been 
 
 Coleridge, C. J.) that a plain- brought. 
 
 tiff, who had recovered damages (/«) Popplewell v. Hodkin- 
 
 in the county court for injuries son, L. R. 4 Ex. 248. 
 
 to his cab, could afterwards sue («) 51 L. J., Q. B., 357 
 
 for personal injuries arising out
 
 NUISANCES. 307 
 
 tionists Fathers," and those gentlemen converted the 
 house into a chapel, and appointed de Held, a Roman 
 Catholic priest, to officiate therein. One of the first acts 
 of Mr. de Held, on entering on the scene of his minis- 
 trations, was to- set up a harsh and discordant bell, and 
 to ring it at the most unnecessary times. As Soltau, 
 speaking for himself and the neighbours generally, said 
 plainly — " The practice we complain of is offensive alike 
 to our ears and feelings ; disturbs the quiet and com- 
 fort of our houses ; molests us in our engagements, 
 whether of business, amusement or devotion ; and is 
 peculiarly injurious and distressing when members of 
 our household happen to be. invalids ; it tends also to 
 depreciate the value of our dwelling-houses." This 
 was a complaint emanating, not from the geDeral body 
 of Claphamites, who, being at a greater distance, were 
 more or less indifferent to the matter, but from those 
 who were the greatest sufferers, the immediate neigh- 
 bours, and it was on this ground of special annoyance 
 that Mr. Soltau was considered entitled to be heard. 
 
 -Nuisances are divided into two classes, public and private, and Public nui- 
 the rule is that it is only in respect of the latter that an action can sance, when 
 be brought. A public nuisance is suppressed by indictment or actionable, 
 information ; it is the public that is supposed to be aggrieved by 
 what the defendant has done, and individuals, as individuals, 
 have nothing to do with it. To this rule Soltau v. De Held offers 
 an exception, viz., that when the public nuisance is particularly 
 obnoxious to an individual, it is considered, as far as he is con- 
 cerned, to be also a private nuisance, and he may bring his action 
 or apply for an injunction. To take a venerable illustration, "//* 
 A. dig a trench across the highway, this is the subject of an indict- 
 ment ; but if B. fall into it, the particular damage thus sustained 
 by him will support an action." The bell-ringing, in so far as it 
 was a nuisance to all Clapham, was a public nuisance, and the 
 proper way to put it down was by indictment or information ; 
 but, in so far as it was a nuisance to Mr. Soltau personally, it 
 was a private nuisance, and an action lay. So in Iveson v. Moore T veson » 
 (o) the obstruction of a highway so as to prevent customers from Moore, 
 coming to a colliery was held to be an actionable nuisance ; and 
 
 (o) 1 Ld. Kaym. 486 ; and see Fritz v. Hobson, 14 Ch. D. 542.
 
 .SOS 
 
 NUISANCES. 
 
 Benjamin v. 
 Storr. 
 
 Winterbot- 
 
 tom i>. Derby. 
 
 People must 
 not be to 
 fastidious. 
 
 Importance 
 of particular 
 circumstan- 
 ces. 
 
 Coming to a 
 nuisance. 
 Innocent in- 
 tention no 
 excuse. 
 
 Statutory 
 right to be 
 a nuisance. 
 
 Easement. 
 
 Continuing 
 nuisance. 
 
 in Benjamin v. Rtorr (p) a coffee-house keeper in a narrow street 
 near Covent Garden successfully went to law with some auc- 
 tioneers who made an unreasonable use of the highway by their 
 vans blocking up the approaches to his premises and intercept- 
 ing the light, and by the offensive smells arising from the stale- 
 ing of their horses. But mere delay caused by an obstruction of 
 the highway, or the trouble and expense of removing it, being 
 common to all, will not support an action (7). 
 
 There is another important practical division of nuisances to 
 which the student's attention is requested, viz., into those which 
 cause damage to property, and those which merely cause personal 
 discomfort. When a nuisance causes substantial damage to a 
 man's property, he can always get compensation for it; but he 
 must put up with a good deal — there must be a real interference 
 with the comfort of human existence — before he can successfully 
 go to law for an annoyance of the other kind (/■). 
 
 A great deal, too, depends on the locality and circumstances. 
 What is a nuisance in one place may not be in another (s). 
 
 It is no answer to an action for a nuisance that the plaintiff 
 knew that there was a nuisance, and yet went voluntarily and 
 pitched his tent near it (I). 
 
 A man may be responsible for a nuisance, if it were the proba- 
 ble consequence of his act, although his intentions were not only 
 innocent but praiseworthy ; as, for instance, where a publican 
 erected an urinal but arranged the premises in such a way that a 
 space left was habitually used for improper purposes («). 
 
 It is a good defense, however, to an action for a nuisance to 
 show that the act complained of was expressly authorized by 
 statute (a-) ; and sometimes the defendant may claim an ease- 
 ment which entitles him to annoy the plaintiff. But user which 
 is neither physically preventable by the owner of the servient 
 tenement, nor actionable, cannot found an easement (y). 
 
 Where the nuisance is of a continuing kind, so that successive 
 actions may be brought, the jury cannot give damages for any- 
 thing after the date of the commencement of the action (z). 
 
 (p) L. R. 9 C. P. 400; and 
 see Rose v. Miles, 4 M. & S. 101, 
 and Hubert v. Groves, 1 Esp. 
 148. 
 
 (q) Winterbottom v. Derby, 
 L. R. 2 Ex. 316 ; and see Picket 
 v. Metr. Ry. Co., L. R. 2 H. L. 
 188. 
 
 (r) St. Helen's Smelting Co. 
 v. Tipping, 11 H. L. C. 642; 
 and see Crump v. Lambert, L. 
 R. 3 Eq. 409 ; Walter v. Selfe, 
 4 De G. & Sm. 315 ; Salvin v. 
 N. Brancepeth Coal Co., L. R. 
 
 9 Ch. 705. and Shottslron Co. v. 
 Inglis, 7 H. L. (Sc.) 518. 
 
 (s) Bamford r. Turnley, 3 B. 
 & S. 62. 
 
 (1) Per Byles, J., in Hole 'v. 
 Barlow, 27 L. J., C. P., 208. 
 
 (m) Chibnall v. Paul, 29 W. 
 R. 536. 
 
 (x) See Vaughan v. Toff Vale 
 By. Co., p. 300. 
 
 (;/) Sturges v. Birdgman, 41 
 L. T. 219. 
 
 (z) Battishill v. Reed, 18 C. 
 B. 696.
 
 SEDUCTION. 300 
 
 It is to be observed that when a nuisance is of a permanent Reversioner 
 nature, or injurious to the reversion, not only the tenant in pos- suing for nui- 
 session, but the reversioner also, may sue (a). sance. 
 
 In a recent case (b) it has been held that the Attorney-General The Attorney 
 may sue to restrain acts of interference with the public ways General. 
 without proof of public injury. 
 
 In Fletcher v. Bealey (c), it was held that, in order to main- 
 tain a quia timet action to restrain an apprehended injury, the Quia timet 
 plaintiff must prove imminent danger of a substantial kind, or action. 
 that the apprehended injury, if it does come, will be irreparable. 
 The plaintiff was a paper manufacturer on the Irwell near Man- 
 chester, and was terribly afraid of a large heap of refuse which 
 the defendants, who were alkali manufacturers, were depositing 
 on some land a mile or two higher up the river. Though there 
 was a .considerable prospect of damage ultimately resulting, it 
 was held that the plaintiff was premature in bringing his action, 
 and an injunction was refused him. 
 
 Seduction. 
 
 TERRY v. HUTCHINSON. [126.] 
 
 [L. R. 3 Q. B. 599 (1868).] 
 
 This case illustrates the law with reference to seduc- 
 tion. The plaintiff's daughter had been seduced by 
 the defendant, and the question to be decided was in. 
 whose service was the girl at the time the seduction 
 took place, the defendant denying that the daughter 
 was in the service of her father, the plaintiff, at that 
 period. The facts were as follows: the plaintiff's 
 daughter, aged nineteen, was in the service of a draper 
 at Deal. For misconduct in connection with a concert 
 at Deal, her master dismissed her summarily, and 
 she was on her way to her father's house at Canterbury 
 
 (a) Bedingfield v. Onslow, 3 bury Bridge Co., 51 L. J. Ch. 
 
 Lev. 209: and see Kidgill v. 746. 
 
 Moor, 9 C. B. 364 ; Young v. (c) 28 Ch. D. 688; and see 
 
 Spencer, 10 B. & C. 145; and Ripon *. Hobart, 3 My. & K. 
 
 Cooper v. Crabtree, 20 Ch. D. 169; Att.-Gen. v. Kingston, 13 
 
 589. W. R. 888; and Salvin v. North 
 
 (6) The Att.-Gen. v. Shrews- Brancepeth Coal Co., L. R. 9 
 
 Ch., 705.
 
 aio 
 
 SEDUCTION. 
 
 when she was seduced in the railway carriage by the 
 defendant. The court upon these facts held, that there 
 was sufficient evidence that the girl at the time of her 
 seduction was in the service of her father, the plaintiff, 
 inasmuch as she was on her way to resume her former 
 position as a member of her father's family. " The 
 girl," said the court, " is under twenty-one, and is 
 therefore prima facie under the dominion of her natu- 
 ral guardian; and as soon as a girl under age ceases to 
 be under the control of a real master and intends to 
 return to her father's house, he has a right to her ser- 
 vices, and therefore there was a constructive service in 
 the present case." 
 
 A legal fic- 
 tion. 
 
 Proof oi' ser- 
 vice. 
 
 Daughter 
 head of sepa- 
 rate estab- 
 lishment. 
 
 Governess on 
 a visit home. 
 
 The action for seduction is based upon a fiction. The plaintiff 
 is supposed to be the master of the girl seduced, and to have lost 
 the benefit of her services by what the defendant has done to her. 
 It is not necessary, however, for the plaintiff to prove any express 
 contract of service. If he is the father, and his child is under 
 age and not in actual service with some one else, service will be 
 presumed (d); and if he is not the father, or the girl is not un- 
 der age, service will, if she was living under his roof, be pre- 
 sumed from such slight acts of household duty as making tea or 
 milking cows (e). On the other hand, if the plaintiff's daughter 
 was, at the time of the seduction, in the service of another 
 man — though that other were himself the seducer — no action 
 would lie (/). In Manley v. Field (g) the woman seduced 
 rented a house and carried on the business of a milliner, her 
 mother and the younger members of her father's family residing 
 Avith her, and receiving part of their support from the proceeds 
 of her business. The furniture in the house belonged to the 
 father, who occasionally visited his 'family there, and contributed 
 something to their support. It was held on those facts that 
 there was no evidence of service. In Hedges v. Tagg (/;) the plain- 
 tiff 's daughter was in service as a governess, and was seduced 
 by the defendant whilst on a three days' visit, with her employer's 
 permission, to the plaintiff, her mother, for the purpose of at- 
 tending some races at Oxford. During her visit she gave some 
 assistance in household duties. Iu spite, however, of this fact. 
 it was held she was not in her mother's service, and the action 
 
 (d) Evans r. Walton, L. E. 
 2 C. P. 615. 
 
 (e) Bennett v. Alcott, 2 T. R. 
 168. 
 
 (f) Dean v Peel. 5 East, 47; 
 Grinnell r .Wells, 7 M.& G.1042. 
 (?) 7C. B., N. S., 96. 
 (h) L. K. 9. Ex. 2B3.
 
 SEDUCTION. 311 
 
 could not he maintained. Moreover, it would appear that where Serving two 
 
 the girl is in the service of one man at the time of the seduction, masters. 
 
 and of another at the time of the pregnacy and illness, no action 
 
 lies. The first master could not sue, hecause there was no illness 
 
 and loss of service while she was with him ; and thf second could 
 
 not, hecause the woman was not seduced while in his service. 
 
 An action for seduction cannot be successfully brought against Seducer but 
 
 a man who, tnough the seducer, was not the father of the child » ot lat . ht ' r of 
 
 , . ' . , ,, , ~ • /,x the child, 
 
 whose birth occasioned the loss of service (k). 
 
 A married woman, separated from her husband and living with Married 
 her father, may be the latter's servant so that he can maintain an woman. 
 action for seduction > V Z,. 
 
 Although a master may, as a rule, seduce his servant with im- Pretended 
 punity. it is a question for the jury whether the hiring was bond tilling. 
 fide, or for the express purpose of seduction, as in Speight v. Oli- 
 viera (m), where the wealthy defendant kept an empty house lor 
 the express purpose of engaging a pretty girl to look after it. 
 
 Although the action for seduction purports to be only an action The damages, 
 for loss of services, that is not the scale on which the damages are 
 calculated. "In point of form," said Lord Eldon, in aseduction 
 case, "the action only purports to give a recompense for loss of 
 service ; but we cannot shut our eyes to the fact that this is an 
 action brought by a parent for an injury to her child ; in such 
 case I am of opinion that the jury may take into their consider- 
 ation all that she can feel from the nature of the loss. They may 
 look upon her as a parent losing the comfort as well as the ser- 
 vice of her daughter, in whose virtue she can feel no consolation, 
 and as the parent of other children whose morals may be cor- 
 rupted by her example " (n). The plaintiff may show that the 
 defendant was addressing his daughter as an honourable suitor (o), 
 and may show his situation in life (p) but not his pecuniary po- 
 sition (q). He is not allowed to give evidence of his daughter's 
 good character till the other side try to shake it (r). 
 
 In mitigation of damages, evidence of the girl's immodest char- Q\ r y s 
 acter or conduct may be given (s). The defendant may also show character, 
 that by encouraging profligate acquaintanceships, the plaintiff is 
 really the author of her own wrong (/)• 
 
 (i) Davies v. Williams, 10 Q. (p) Andrews v. Askey, 8 C. 
 
 B. 725 ; and see Hedges v. Tagg, & P. 7. 
 
 supra. (q) Hodsell v. Taylor, L. R. 9 
 
 (k) Eager v. Grimwood, 1 Ex. Q. B. 79. 
 
 61. (r) Bamfield v. Massey, 1 
 
 (1) Harper v. Luffkin, 7 B. & Camp. 460. 
 
 C. 387. (s) Verry v. Watkins, 7 C. & 
 (to) 2 Starkie, 493. P. 308. 
 
 (h) Bedford v. McKowl,3Esp. (t) Reddie v. Scoolt, 1 Peake, 
 (o) Dodd M.Norris,3Camp,519. 316.
 
 312 SEDUCTION. 
 
 "When death is caused by seduction probably no action can be 
 maintained («). 
 Particulars ^ was decided recently in an action for seduction, that the 
 
 plaintiff will, not be ordered to give particulars of the times and 
 places when Jfhe seduction took place, until the defendant has 
 made an affidavit denying the seductiou (x). 
 
 Action for Deceit. 
 
 [127.] PASLEY v. FREEMAN. 
 
 [3 T. R. 51 (1789).] 
 
 This case illustrates the law with reference to repre- 
 sentations as to the character, ability and credit of third 
 parties and also comprehends all instances where a per- 
 son has been deceived by the wilful or thoughtless state- 
 ments of another by trusting to the accuracy of which 
 he has been damnified. The facts were as follows. 
 Pasley, the plaintiff, was a person who dealt in cochineal, 
 and at the time when the cause of action arose had a 
 large stock on hand of which he was anxious to dispose. 
 Freeman, the defendant, hearing of this told Pasley 
 that he knew a Mr. Falch who would purchase the cochi- 
 neal. Pasley said, "Is he a respectable and substantial 
 personV Certainly he is" answered Freeman, well 
 knowing he was nothing of the sort. On the faith of 
 this representation Pasley let Falch have sixteen bags 
 of cochineal, of the value of nearly £3000 on credit. 
 Upon the bill becoming due it turned out that Falch 
 was insolvent, and being unable to recover his money 
 from Falch, Pasley sued Freeman for making to him 
 a false representation whereby he was damnified, and 
 
 (m) Osborn v. Gillett, L. E. 8 (x) Thompson v. Birkley, 47 
 Ex. 88. L. T.
 
 ACTION FOR DECEIT. , 313 
 
 it was held that Freeman was liable to Pasley to the ex- 
 tent that he had suffered in consequence of Freeman's 
 false statement as to the credit and character of Falch. 
 
 By the 4th section of the Statute of Frauds, " no action shall Statute of 
 
 be brought upon any promise to answer for the debt, default, or * rauds, 
 
 " l , , . ... , iourth sec- 
 
 miscamage oi another, unless such promise is in writing and t j Qu 
 
 signed by the party chargeable." Freeman's representation was 
 not in writing, why therefore was he held liable? The reason 
 is this, that section refers only to contracts and Pasley sued Free- 
 man in tort and it is a well-known principle of law "thai wher- 
 ever deceit or falsehood is practised to the detriment of another there 
 the laio will give redress." Pasley v. Freeman was however a sub- 
 stantial violation of the Statute of Frauds and it gave birth to a 
 progeny of similar cases; till at length Lord Tenterden passed Lord Tender- 
 
 an Act in the ninth year of George the Fourth which provided < len s T A . ct » w 
 
 , , , ■, X.X. u Ge0 - IV- » c - 
 
 that no one who had made any representation as to the con- ^ 
 
 duct, character, credit, ability, &c, of another in order to induce 
 people to trust him, should be liable to an action for false repre- 
 sentation unless his statement were in writing and signed by 
 him. The point cannot be said to be 'quite settled but it is 
 probable that to represent a particular property on the security 
 of which a person was thinking of lending money, to be sound 
 and safe (e. g. to say that a person's life-interest in certain trust 
 funds was charged only with three annuities) would be held to 
 be precisely the same thing as representing the man himself to 
 be solvent, for a man's "ability" consists in the things that he 
 has (y). 
 
 It was held in Pasley v. Freeman that it is no defence to an p erson re p_ 
 action of the kind that the defendant had no interest in and was senting, 
 to gain nothing from telling his untruth. nothing to 
 
 Thus in the recent case of Leddell v. McDougal (z), where the ^ 
 defendant in answer to the plaintiff's letter asking him if he 
 could recommend a man named Thornton as a safe and respon- 
 sible tenant, had had "much pleasure in replying affirmatively" 
 though he knew Thornton to be a man of no resources and that 
 he had more than once failed in business similar to the one he 
 now wished to enter into, it was held that it was of no conse- 
 quence that what the defendant had said he had said out of mere 
 kindness and had no idea of making a halfpenny out of it or 
 even of deliberately deceiving the plaintiff. 
 
 In Pearson v. Seligman (a), it was held that it was no defence 
 to prove that the false representation was made for the benefit of 
 the person making it and not for the benefit of the person praised. 
 
 (y) Lyde v. Barnard, 1 M. & tal mistake. 
 
 W. 101; and see Swann v. Phil- (z) 29 W. R. 403; and see 
 
 lips, 8 Ad. & E. 457; and also Haycraft v. Creasy, 2 East, 103. 
 
 Joliffe v. Baker (post), acciden- (a) 31 W. R. 730.
 
 314 
 
 ACT-ION FOR DECEIT. 
 
 Representa- 
 tion need 
 nut be direct. 
 
 What plain- 
 tiff must 
 show. 
 
 Interest of 
 third par- 
 ties. 
 
 Simplex 
 commendatio. 
 
 To ground an aetion for deceit it is not necessary that the false 
 representation should he made directly to tlie plaintiff. It is 
 enough that the defendant intended that the plaintiff should act 
 upon it. If hank directors, for instance, circulate a false report 
 formally addressed to their shareholders, hut really intended to 
 catch widows and clergymen with money to invest, a widow or 
 clergyman who has thereby been inveigled into buying shares 
 may sue for the loss she or he has sustained {!>). But if the 
 plaintiff did not rely on the false statement complained of, he can- 
 not maintain an action for deceit (c). 
 
 In an action for deceit the plaintiff must show first, that the 
 false statements made to him were fraudulent: secondly, that 
 they were a cause inducing him to act to his prejudice (</). 
 
 In another case a man for the purpose of enabling a company 
 to have a fictitious credit in case of inquiries at their bankers, 
 placed money to their credit which they were told to hold in 
 trust for him. Some of the money having been drawn out with 
 his consent, and the company having been ordered to be wound 
 up while a balance remained: it was held that he could not 
 claim to have the balance paid to him (c). 
 
 In the case of Smith v. Land and House Property Corporation 
 (/) the plaintiffs advertised for sale by auction an hotel stated 
 in the particulars to be held by a '■'mod desirable tenant.'''' The 
 defendants sent their secretary down to inspect the property and 
 report thereon. The secretary reported very unfavourably stat- 
 ing that the tenant could scarcely pay the rent (£400), rates, and 
 taxes. The deiendants, relying on the statements in the par- 
 ticulars authorized the secretary to attend the sale and to bid up 
 to £5000. The property was bought in at the sale and the sec- 
 retary purchased it by private contract for £4700. It appeared 
 subsequently that the quarter's rent previous to the sale had 
 not been paid ; the previous quarter had been paid by 
 instalments, and six weeks after the sale the tenant filed 
 his petition. It appeared, however, that the hotel business 
 was as good during the last year as previously, and that the 
 month of the tenant's failure was the best he had had. The 
 plaintiffs brought an action for specific performance, relying in 
 answer to the defence and counter-claim for rescission (on the 
 
 (b) Scott v. Dixon, 29 L. J. 
 Ex. 62, n. ; and see Peake v. 
 Gurney, L. R. 6 H. L. 377; 
 Barry v. Crosskey, 2 J. & H. 1 ; 
 Gerhard v. Bates, 2 E. & B. 476; 
 and Richardson v. Silvester, L. 
 R. 9 Q. B. 34. 
 
 (c) Smith v. Chadwick, post. 
 
 (d) Taylor o. Ashton, 11 M. 
 & W. 401; Smith i>. Chadwick, 
 9 App. Cases, 187; 53 L. J. 
 Chancery, 873; 50 L. T. 697; 
 32 W. R. 687; 48 J. P. 644; H. 
 
 L. (E). 
 
 (e) In re Great Berlin Steam- 
 boat Co., 26 Ch. D. 616; 54 L. 
 J. Ch. 63; 51 L. T. 445; C. A.; 
 Hart v. Swain, 7 Ch. D. 42; 
 Evans v. Edmonds, 13 C. B. 
 777; Ark wright v. Newbold, 44 
 L. T. 393. 
 
 (/) Smith v. Land and House 
 Property Corporation, 49 L. T. 
 532; 48 J. P. 101; Denman, J. 
 28 Ch. D. 7; 51 L. T. 718; 49 
 J. P. 182: C. A.
 
 ACTION FOR DECEIT. 315 
 
 ground of misrepresentation) on the fact that the defendants had, 
 made their own inquiries. It was held that the statement that the 
 property was held by a " most desirable tenant " could not be treated 
 as "simplex eommendeitio" and that the defendants, having relied 
 thereon, were entitled to rescission of the contract on the author- 
 ity of Redgrave*. Hurd (20 Ch. D. 1.). 
 
 The directors of a company issued a prospectus inviting sub- Omission in 
 scriptions for debentures stating that the property of the company prospectus, 
 was subject to a mortgage of £21,500, but omitting to state a sec- 
 ond mortgage of £5000. The prospectus further stated that the 
 objects of the issue of debentures were (1) to purchase horses and 
 ■vans ; (2) to complete alterations and additions ; (3) to supply 
 cheap fish. The true object was to get rid of pressing liabilities. 
 The plaintiff advanced £1500 upon debentures under the errone- 
 ous belief that the prospectus offered him a charge and would not 
 have advanced his money but for such belief, but he also relied * 
 upon the false statements contained in the prospectus as to the 
 financial condition of the company. The court held the mis-state- 
 ment of the objects for which the debentures were issued was a 
 material mis-statement of fact, influencing the conduct of the 
 plaintiff and rendered the directors liable to an action for deceit, 
 although the plaintiff was also influenced by his own mistake (g). 
 
 It is not enough to show that the statement in a prospectus is p raU( i must 
 untrue, it may have been merely expressive of sanguine confi- be shown, 
 dence ; fraudulent misrepresentation must be shown (/*). 
 
 In Maddison r. Alderson (0 the plaintiff was induced to serve 
 a man as his housekeeper for many years and give up other pros- 
 pects of advancement in life, by a verbal promise made by him to 
 leave her a farm for her life. He signed a will leaving the farm 
 in accordance with his promise but the will was not duly wit- 
 nessed. The Lord Chancellor Selborne held that assuming a con- 
 tract in fact between A. and the appellant, there was no part per- 
 formance unequivocally referable to a contract so as to exclude 
 the operation of the Statute of Frauds : and that the appellant 
 could not recover the farm from the man's heir. 
 
 The fraudulent purpose must be proved by the plaintiff. The Concealment 
 active concealment of a material fact, e.g., where the vendor of a of material 
 house plasters over a defect in the wall, may operate as a misrep- Rep- 
 resentation (k), but no mere non-disclosure where there is no duty 
 
 (g) Edgingtonr. Fitzmaurice, (/) Maddison v. Alderson, 8 
 
 20 Ch. D. 459; 53 L. T, 369 ; 33 App. Cases. 473 ; 52 L. J. Q. B. 
 
 W. R. 911 ; C. A. affirming 32 737 ; 49 L. T. 303 ; 31 W. R. 820; 
 
 W. R. 848.— Denman, J. 47 J. P. 821 per Selborne, C. 
 
 (70 Bellairs v. Tucker ; see (k) Schneider v. Heath, 3 
 
 also Roots v. Snelling, 48 L. T, Camp. 505. 
 N. S, 216 ; 14 Q. B. D. 302.
 
 31G ACTION FOR DECEIT. 
 
 to disclose, as in the diseased pigs case where the seller declined to 
 •jive any kind of warranty or representation as to them, but left 
 the purchaser to go entirely by their appearance (I). As to the 
 rescinding of contracts on grounds of fraud, the equity leading 
 cases of Shirley v. Stratton (m), Attwood v. Small (n), and Red- 
 grave v. Hund (o) should be referred to. 
 Fraud a de- In Abouloif v. Oppenhcimer and Co., it was decided that a for- 
 fence to eign judgment obtained by the fraud of a party to the suit in the 
 
 a foreigp foreign court cannot be afterwards enforced by him in an action 
 
 judgment. brought in an English court, even although the question whether 
 the fraud had been perpetrated was investigated in the foreign 
 court, and it was there decided that the fraud had not been com- 
 mitted (})). 
 Omissions in -A- dwelling house and offices were put up for sale by public auc- 
 particulars of tion, under a printed condition in a common form, that the lot was 
 sale at S old subject to any existing rights and easements of whatever na- 
 
 auction. ture — an( j j.jj e p r i n ted particulars made no mention of any ease- 
 
 ment or of any claim to an easement. As the result of evidence 
 it appeared that the house was subject to an easement belonging 
 to the owner of a neighbouring tenement to use the kitchen for 
 particular purposes, and that the vendor's solicitor knew of the 
 rumoured existence of some such casement, but forbore to make 
 inquiries. No grant of an easement appeared from the abstract 
 and its existenee was, in fact, disputed on the pleadings. In the 
 auction room the plaintiff's solicitor said he had heard of some 
 such claim, but had no definite information about it, and the 
 auctioneer, in hearing of the plaintiff's solicitor, on being ques- 
 tioned, told the audience that they might dismiss the subject of the 
 rumoured claims from their minds, as nobody Avould probably ever 
 hear of them again. Held, that the conditions were misleading 
 and the statements in the auction room insufficient, and specific 
 performance of the contract refused (q). 
 Marriage ^ n an ac ti°n to set aside a marriage settlement, the plaintiff al- 
 
 settlement. leged as the ground of his action, that previous to the execution 
 of the settlement made upon the marriage between himself and 
 J. S., the latter stated to him that her first husband had been 
 divorced from her at her suit, by reason of his cruelty and adultery 
 and that she had not herself been guilty of adultery ; that such 
 statements were made to induce him to execute the settlement and 
 contract the marriage ; that in reliance on the representations he 
 executed the settlement and married J. S. ; that he subsequently 
 discovered that the representations were false to the knowledge of 
 
 (OWardn Hobbs73Q7B. _ ix {p)~io~Q'B7D729oT52 L. J. 
 
 150 ; and see Fletcher v. Krell, Q. B. 1 ; 47 L. T. 3:25; 31 W.R. 
 
 42 L. J. Q. B. 55. 57 ; C. A. affirming 30 W. R.429. 
 
 (»n) 1 B. R. C. C. 440. D. 
 
 (») C. A. & F. 232. (q) Hevwood v. Mallalien, 25 
 
 (o) 20 Ch. D. 1. Ch. D. 357; 53 L. J. Ch. 492; 49 
 
 L.T.658; 32 W. R. 538.— V.C.B.
 
 ACTION FOR DECEIT^ 317 
 
 J. S., that she herself had been divorced from her husband at his 
 suit and by reason of her adultery. Held, on motion by the de- 
 fendant, that the plaintiff's statement of claim must be struck 
 out under Ord. XXV., r. 4. as disclosing no reasonable ground of 
 action (r). 
 
 In an action to recover by way of damages money lost by the Concealment 
 fraudulent representations of the defendant, a reply to a defence oi fraud, 
 of the Statute of Limitations that the plaintiff did not discover Statue of 
 and had not reasonable means of discovering the fraud within six Limitation, 
 years before action, and that the existence of such fraud was 
 fraudulently concealed by the defendant until within such six 
 years was held good by the Court of Appeal (s). 
 
 The common law action to recover damages for the infringe- Trade marks 
 ment of a trade mark was based upon the ground of fraud (t). and copy- 
 But it is not now necessary — nor was it ever in equity — to n S nt; 
 prove fraud against a defendant in such a case («). raud. not 
 
 At common law there was no copyright in literary productions . \ 
 
 rj ° J r At common 
 
 after publication, but there was before (x). i aw 
 
 For the present law upon the subject of copyright, see for copy- gy statute, 
 right in books 5 & 6 Vic. c. 45. Copyright in designs 46 & 47 Vic. 
 c. 57, s. 113. Copyright in dramatic productions 3 & 4 Will. IV. 
 c. 15, s. 1—5 & 6 Vict. c. 45. ss. 2, 20, 22. Copyright in musical 
 compositions 45 & 46 Vict. c. 40. Copyright in newspapers 44 & 
 45 Vict. c. 60. Copyright in pictures 25 & 26 Vict c. 68. 
 
 The plaintiffs, who were upholsterers, published an illustrated B 00 ks 
 catalogue of articles of furniture, which was duly registered un- 
 der the Copyright Act as a book. The illustrations were en- 
 graved from original drawings made by artists employed by the 
 plaintiffs, but the book contained no letterpress of such a de- 
 scription as to be the subject of copyright, and it was not pub- 
 lished for sale, but was used by the plaintiffs as an advertise- 
 ment. The defendants published an illustrated catalogue, many 
 of the illustrations in which were Copied from those in the plain- 
 tiffs' book. Held, by the Court of Appeal (affirming the deci- 
 sion of Hall, V.C. ) that the plaintiffs were entitled to an injunc- 
 tion restraining the defendants from publishing any catalogue 
 containing illustrations copied from the plaintiffs' book. 
 
 A collection of prints published together in a volume is a book What is a 
 within the meaning of the Copyright Acts and the proper sub- book? 
 
 (V) Johnston v. Johnston, 53 (7) Rodgers v. Nowill, 5 C. B. 
 
 L. J. Ch. 1014 ; 51 L. T. 537; 109; Singer Co. v. Wilson, 2 
 
 32 W. K. 1016.— Pearson, J., Ch. D. 434. 
 
 affirmed 78 L. T. J. 1 19. (u) 38 & 39 Vict. c. 91 ; 39 & 
 
 (s) -Gibbs v. Guild, 9 Q. B. D. 40 Vict, c. 33; 40 & 41 Vict c. 
 
 59; see also Ecclesiastical Com- 37. 
 
 missioners for England v. North (x) Albert, Prince, v. Strange, 
 
 Eastern Railway Co., 4 Ch. D. 1 Mac. & (i. 25 ; and Reade v. 
 
 845; observed upon Barber v. Conquest, 9 C. B. N. S. 755. 
 Houston, 14 L. R. Ir. 273 Ex. D. 
 
 22 COMMON LAW.
 
 318 ACTION FOR DECEIT. 
 
 ject of copyright, though it contains no such letterpress as could 
 be the subject of copyright, and it makes no difference that the 
 book is not published for sale, hut only used as an advertisement 
 [Cobbett v. Woodward (L. It. 14 Eq. 40?) overruled] (y). 
 First pub- '" the case of Coote w. Judd (z) it was decided that registra- 
 
 lisher. tion of copyright is had if the name entered as that of " the pub- 
 
 lisher" is not that of the first publisher. In an action for in- 
 fringement of copyright, where objections to the registration are 
 not delivered within the prescribed time, the action may never- 
 « thelessbe dismissed if a defect in the registration is brought out 
 
 from the plaintiff's evidence. 
 Copyright in ^ n tne case °f Dicks v: Yates (a) the plaintiff published in 
 title of book, numbers in a weekly periodical called "Every Week" a tale in- 
 " Splendid tituled " Splendid Misery "; or " East End and West End," by C. 
 lsery. ^ Hazlewood. The defendant subsequently commenced issuing 
 
 in weekly parts, in a newspaper published by him, a tale by 
 Miss Braddon intituled "Splendid Misery." Plaintiff was regis- 
 tered as the proprietor of " Every Week " before the publication 
 of it began, and after the tale had been completed he had him- 
 self registered as the proprietor of " Splendid 3Iisery " ; or " East 
 End and West End," giving the date of publication of the num- 
 ber of "Every Week" which contained the first number of the 
 tale as the date of the publication of the tale. He then com- 
 menced an action to restrain the defendant from continuing his 
 publication of Miss Braddon's tale under the title of "Splendid 
 Misery," and moved for an injunction. Before the motion was 
 made, the defendant had altered the title of Miss Braddon's tale, 
 and the motion was ordered to stand over till the trial, the de- 
 fendant undertaking not to alter the new title in the meantime. 
 The tale was finished under the new title before the trial. It 
 was proved that a novel which once had a large circulation had 
 been published in 1801 under the title of "Splendid Misery, " and 
 that secondhand copies could still be met with. At the trial it 
 was decided by Vice-Chancellor Bacon that the defendant had 
 infringed the plaintiff's copyright, and made an order containing 
 no declaration of right, hut simply ordering the defendant to pay 
 the wholecosts of the action. The defendant appealed, contend- 
 ing that the plaintiff had no title, and that the action ought to 
 have been dismissed. On appeal it was decided that it is not 
 within the discretion of the court to make a defendant pay the 
 whole cost of an action, if the plaintiff has no right to sue, that 
 there was therefore implied in the order a declaration that the 
 plaintiff had a good cause of action, and that an appeal would 
 
 (y) Maple & Co. v. Junior Ch. 36; 48 L. T. 205; 31 W. R. 
 
 Armv and Navy Stores, 21 Ch. 423. — V. C. B. ; and see also 
 
 D. 369; '52 L.J. Ch. 67; 47 L. Weldon v. Dicks, 10 Ch. D. 
 
 T. 589; 31 W. R. 70; C. A. 247. 
 
 (z) 23 Ch. D. 727; 53 L. J. (n) 18 Ch. D. 76.
 
 ACTION FOR DECEIT. 319 
 
 lie : that though the registration of " Every Week" being made 
 before any part of that periodical was published was not a good 
 registration, the subsequent registration of the first number of 
 the tale was a good registration to enable him to sue in respect 
 of infringement of copyright in the title of the tale, supposing 
 such copyright to exist, but that the plaintiff had no copyright 
 in the title "Splendid Misery" for that copyright can only exist 
 in something original and the mere adopting as a title a hack- 
 neyed phrase, which moreover had been used as the title of a 
 novel many years before, and which for anything that appeared 
 might have been copied from that novel, could not give any copy- 
 right in that title ; therefore the plaintiff had no title to sue for 
 infringement of copyright, and that as it was clear that the pub- 
 lic could not he misled into purchasing the defendant's tale under 
 the belief that it w r as the same as that of the plaintiff, so that 
 there was no ground for the interference of the court on the prin- 
 ciples applicable to trademarks, the action ought to be dismissed 
 with costs. It seems that, as a general rule, there cannot be any 
 copyright in the title of a bookv. 
 
 The plaintiff in Ager v. Peninsular and Oriental Steam Navi- Copyright to 
 gation Co. (b) published "The Standard Telegram Code," a book "code." 
 of words selected from eight languages, for use in telegraphic 
 transmissions of messages, and it was accompanied by figure 
 cyphers for reference or private interpretation. The book was 
 registered under the Copyright Act, 5 & 6 Vict. c. 45. The de- 
 fendants bought a copy of the book, and compiled for their own 
 use with its aid a new and independent work, as alleged, which 
 was their own private telegraph code, and they distributed copies 
 of their book amongst their agents at home and abroad, but they 
 had not printed their book for sale or exportation. It was de- 
 cided that the defendants had infringed the copyright of the 
 plaintiff, and that a perpetual injunction must be granted. 
 
 An author and lecturer upon various scientific subjects, deliv- Public lec- 
 ered from memory, though it was in manuscript, a lecture at the ture, no right 
 Working Men's College, upon "The Dog as the Friend of Man. " to verbatim 
 The audience were admitted to the room by tickets issued gratui- 
 tously by the committee of the college. P., the author of a sys- 
 tem of shorthand writing, and the publisher of works intended 
 for instruction in the art of shorthand writing, attended the lec- 
 ture and took notes, nearly verbatim, in shorthand, of it, and 
 afterwards published the lecture in his monthly periodical "The 
 Phonographic Lecturer." The court, on motion for an injunc- 
 tion to restrain the publication, decided that where a lecture of 
 this kind is delivered to an audience limited and admitted by 
 
 (6) 20 Ch. D. 637 ; 53 L. J. Ch. 589 ; 50 L. T. 477 ; 33 W. R. 
 116.— Kay, J.; and see Cable v. Marks, 52 L. J. Ch. 107 ; 47 L. 
 T. 432 ; 31 W. E. 221 — V.-C. B.
 
 320 
 
 ACTION FOR DECKIT. 
 
 Person ag- 
 grieved by 
 
 entry. 
 
 Face of 
 barometer 
 not a book. 
 
 Designs. 
 
 Dramatic 
 productions 
 and musical 
 compositions 
 
 tickets, the understanding between the lecturer and the audi- 
 ence is that, whether the lecture has been committed to writing 
 beforehand or not, the audience are quite at liberty to take the 
 fullest notes for their own personal purposes, but they are not at 
 liberty to use them afterwards for the purpose of publishing the 
 lecture for profit ; and the publication of the lecture in short- 
 hand characters is not regarded as being different in any material 
 sense from any other; and an injunction was accordingly 
 granted (c). 
 
 Where a person shall deem himself aggrieved by any entry in 
 the register of copyright, the court will make an order varying 
 such entry (d). 
 
 In Davies v. Comitti (c) it was held that the face of a barome- 
 ter displaying special letterpress was not capable of registration 
 under the Copyright Act, 1842, as not being within sec. 2 "a 
 book separately published. ' ' 
 
 The law upon copyright in designs, as has been pointed out, is 
 governed entirely by the Patents, Designs, and Trade Marks 
 Acts, 1883 (/), and the reader is referred to this extensive stat- 
 ute for information upon this important branch of the law of 
 copyright. 
 
 In Fielding v. Hawley (</) a butter dish consisting of a dish 
 and cover is one "article of manufacture " within the Copyright 
 (Designs Act, 1842, and it is a sufficient compliance with the Act 
 to stamp the registration mark upon the dish alone, though the 
 cover was separate from and not in any way attached to the dish, 
 and though the entire design was upon the cover, and protection 
 is not denied even though in the process of manufacture the 
 mark becomes illegible. 
 
 The publication in this country of a dramatic piece as a book 
 before it has been publicly represented or performed does not de- 
 prive the author of such dramatic piece or musical composition, 
 or his assignee, ol the exclusive right of representing or perform- 
 ing it (h). In another dramatic case the Court of Appeal decided 
 that the person whose right under s. 20 of 5 & G Vict. c. 4f>, to 
 such sole liberty of representing a musical composition has been 
 infringed is entitled to recover the penalty of 40s. given by sec. 
 2of3&4 Will. IV., c. 15, although such musical composition 
 has not been represented at a place of dramatic entertainment (i). 
 
 An amateur dramatic club gave a performance of a copyright play 
 
 (c) Nichols*. Pitman. 26 Ch. 
 D. 374 ; and see Abernethy v. 
 Hutchinson, 3 L. J. Ch. O. S. 
 209. 
 
 (d) Ex parte Poulton. 53 L.J. 
 Q. B. 32n : and see in re Riviere 
 & Co. 's Trade Mark, 53 L. J. 
 578 
 
 (e) 54 L. J. Ch. 419. 
 
 (/) 46&47Vict..c. 57, s. 113. 
 
 (g) 48 L. T. 639. 
 
 (/() Chappell v. Boosev. 21 
 Ch. D. 232 ; and see Reade v. 
 Conquest. 9 C. B. N. S. 
 
 (i) Wall v. Taylor, 11 Q. B. 
 D. 102 ; and see also Wall v. 
 Martin, ibid.
 
 ACTION FOR DECEIT. 321 
 
 at a hospital for the entertainment of the inmates. Admission 
 was free, the governors of the hospital paid for the seats and 
 costumes ; tickets were given to members of the dramatic club 
 to distribute among their friends, and some reporters for the 
 theatrical newspapers attended. It was decided that the per- 
 formance was not a performance in a "place of dramatic enter- 
 tainment" within 3& 4 Will. IV., c. 15 or 5 &6' Vict., c. 45, s. 
 20, and that the performers were not liable ta pay penalties to 
 the owners of the copyright (k). 
 
 A newspaper is within the Copyright Act (5 & 6 Vict., c. 45) Newspaper's, 
 and requires registration under that Act in order to give the pro- 
 prietor the copyright in its contents, and so enable him to sue in 
 respect of a piracy of any article therein. Also to enable the 
 proprietor of a newspaper to sue in respect of a piracy of any 
 article therein he must show, not merely that the author of the 
 article has been paid for his services, but that it has been com- 
 posed on the terms that the copyright therein shall belong to 
 such proprietor (1). 
 
 In Nottage r. Jackson ( m) it was decided that when a firm of Pictures, 
 photographers send one of their artists to take a negative he and 
 not they is the author of the photograph. Two oi more persons 
 may be registered as "authors" of a painting, drawing or photo- 
 graph, but quasre whether the copyright would subsist for the 
 joint lives, or the lives or life of the authors and seven years 
 afterwards. 
 
 The plaintiff may recover damages for any injury which is the Damages, 
 direct and natural consequence of his acting on the faith of the 
 defendant's fraudulent representations («). In Twycross v. 
 Grant (o) where the plaintitf had been induced by the fraud of 
 the defendant to take up shares which were really worthless, he 
 was held entitled to recover the full amount he had paid for them 
 although they had a market value at the time he took them. In 
 a recent case of Clarke v. Yorke {p) the question arose whether 
 a plaintiff who had already obtained damages in the county 
 court for false and fraudulent representations could bring an ac- 
 
 (k) Duck V. Bates, 49 L. T. 1 C. P. 559. 
 507 ; 32 W. R. 169 ; 42 J. P. (o) 2 C. P. D. 469. 
 231 ; 12 Q. B. D. 79 ; 53 L. J., (p) 31 W. R. 62 ; see also 
 
 Q. B. 97 ; affirmed bv 13 Q. B. Evans v. Collins, 5 Q. B. 820 ; 
 
 D. 843 ; 53 L. J., Q. B. 338; Pontifex r. Bignold, 3 M. &G. 
 
 50 I.. T. 778 ; 32 W. R. 813 ; 63 ; Cornfoot v. Fowke, ante ; 
 
 48 J. P. 501. Langridge v. Levy, post; Behn 
 
 (/) Walter v. Howe, 17 Ch. v. Burness, ante; Ormrod v. 
 
 D. 708 ; Cox v. Land and Hnth, 14 M & W. 651 : Sulli- 
 
 Water Journal Co., not fol- van v. Metcalf, 5 C. P. D. 4. r )f) ; 
 
 lowed, L. R. 9 Eq. 324 ; CA. Eaglefield r. Londonderry, 4 
 
 (m) Nottage v. Jackson, 11 Ch. D. 693 ; Cover's case, 1 Ch. 
 
 Q.'B. D. 627 ; 52 L. J., Q. B. D. 182} Cornell v. Hay, L. R. 
 
 760 ; 49 L. T. 339 ; 32 W. R. 8 C. P. 328 ; Brett v. Clowser, 
 
 106 ; C. A. 5 C. P. D. 376 ; Jury v. Stoker, 
 
 (n) Mullett v. Mason, L. R. L. R. Ir. 9 Ch. ' D. 384.
 
 ACTION FOR DECEIT. 
 
 tion in the High Court for further damages accrued since judg- 
 ment in the county court. It was held hy Pearson, J. that he 
 could not do this as the cause of action was not continuing and 
 his right of action was exhausted. 
 
 [128.] 
 
 Trespass ab initio. 
 
 VAUX v. NEWMAN. 
 
 (Sometimes called the Six Carpenters' Case.) 
 
 [8 Coke 146 (1611).] 
 
 This case illustrates the law with reference to those 
 cases wherein a person empowered by the authority of 
 the law to do certain things, forfeits the protection which 
 is given him by such authority by reason of the abuse 
 of the privilege. The facts in the leading case were as 
 follows: Six carpenters entered a tavern "and did 
 there buy and drink a quart of wine, and then paid for 
 the same." They then gave a further order for "another 
 quart of wine and a pennyworth of bread, amounting 
 to 8d." This order was also fulfilled. For the second 
 supply the men refused to pay. The question was, 
 whether this non-payment made their original entry 
 into the tavern tortious; in other words, whether it 
 made them trespassers ab initio. 
 
 The court held that the men did not become tres- 
 passer ab initio on the ground that mere non-feasance 
 is not enough. In order to constitut e trespass ab initio 
 there must be two conditions. First, there must be 
 misfeasance as distinguished from non-feasance; and 
 secondly, the authority abused must be one given by 
 the law, and not by an individual. 
 
 Who is tres- ^''' s * x car P enters abused an authority given them by the law. 
 
 passer ab The law gives every man a right to enteran inn, and if these men 
 
 inlio. had broken the glasses or actively done some illegal act they 
 
 would have been guilty of misfeasance and have become tres-
 
 TRESPASS AB INITIO. 323 
 
 passers ah initio; but they were only guilty of non-feasance, viz., 
 
 of declining to pay for their beverage. They did not, therefore, 
 
 fulfil the conditions essential to trespass a J initio. Instances of Examples. 
 
 trespassers ab initio may be mentioned ; the lessor who enters to 
 
 view waste and stays all night; the commoner who enters to view 
 
 his cattle and cuts down a tree ; and the man who enters a tavern 
 
 and continues there all night against the will of the landlord. In such 
 
 cases that is misfeasance, and the authority is conferred by the 
 
 law. The reason why misfeasance does not make a man trespasser 
 
 ab initio when the authority is conferred by an individual would 
 
 seem to be that those who voluntarily give powers can limit or 
 
 recall them as they please, while the abuse of powers given by 
 
 the law needs a more stringent protection. 
 
 The power of a landlord to distrain his tenant's goods, when Distress for 
 the latter will not pay rent, is authority given him by law, and rent, 
 had the legislature not intervened and otherwise provided, it 
 would have followed as a corollary from the principles enunciated 
 in the leading case that misfeasance in distraining would make a 
 landlord a trespasser ab initio. 
 
 Such a result would, in many cases, obviously work great hard- 
 ship, for in an action for illegal distress, where the defendant 
 can be treated as a trespasser ab initio, so as to make his posses- 
 sion of the goods wholly wrongful (q), the entire value of the 
 goods taken, without deducting the rent satisfied by the seizure, 
 will be recoverable, and not merely the actual damage sustained 
 by the tenant. The plaintiff in such a case can claim to be 
 placed in precisely the same position he was in before the tres- 
 pass took place. A remedial statute (?) has, however, provided 11 Geo. II. c 
 that where any distress is made for rent justly due, and an irreg- y > s< y# 
 ularity afterward occurs on the part of the landlord, the distress 
 is not on that account to be deemed unlawful, nor the persons 
 making it trespassers ab initio. In such case the parties aggrieved 
 may recover full satisfaction for the special damage they have 
 sustained, but no more. Indeed, if no actual damage can be 
 proved by the plaintiff (s) he has been held not entitled to nom- 
 inal damages, although he may have established the fact of an 
 irregularity. 
 
 A tenant under an agreement for a lease is liable to distress (t). 
 
 In Megson v. Mapleson («), where a bailiff has levied excessive Excessive 
 distress, a landlord may recover from him the amount he has had distress, 
 to pay to the injured tenant. Perhaps the most common form of 
 
 (q) Attack v. Bramwell, 32 L. (s) Lucas v. Tarleton, 27 L. 
 
 J., Q. B. 14(5. J. Ex. 246. 
 
 (r) 11 Geo. II., e. 19, s. 19 ; (t) L. J. N. Aug. 1883 ; Bar- 
 
 and as to distress for poor rate rington v. Hamshaw. 
 
 see 17 Geo. II., c. 38, s. 8. (w) W. R. 318 : 49 L. T. 7 1 1.
 
 324 
 
 TRESPASS AB INITIO. 
 
 Cattle dam- 
 age-feasant. 
 
 Wrongful 
 eviction and 
 apportion- 
 ment. 
 Trespass ab 
 initio as to 
 part. 
 
 irregularity is that known as excessive distress. By 52 Hen. III., 
 c. 1, it is enacted that they who take great and unreasonable dis- 
 tress shall be grievously amerced for the excess of such distresses. 
 It is. however, observable that (x) no action is maintainable for 
 distressing for mure rent than is due, provided the distress is not 
 excessive as to that which is due. Again, a frequent irregularity 
 committed is that of selling the goods without subjecting them 
 to the appraisement required by law, in which case the measure 
 of damages is the value of the goods minus the rent due. Of 
 course, it must not be assumed that a distress can never amount 
 to a trespass ab initio. The statute relieves only when the dis- 
 tress is in itself regular and proper, though marred by a subse- 
 quent irregularity. Thus it has no application (y) where the 
 distress is etfected by breaking open an outer door, or (z) where 
 it takes place between sunset and sunrise, or where the goods 
 taken were not distrainable at all. Nor, again, where the dis- 
 tress is made after tender of the amount due ; but, notice, that 
 tender after distress and before the goods are impounded makes 
 their detention, but not the original taking, wrongful. And this 
 is not because the statute steps in to relieve the landlord, but 
 because such detention is a mere non-feasance, and would not, 
 therefore, even at common law, render the distress a trespass ab 
 initio. 
 
 It will, too, be remarked that the statute is confined in its ap- 
 plication to the case of distraint for rent, and in no way relates, 
 for example, to the distress of cattle damage-feasant, so that the 
 working or killing of such cattle would amount to a trespass ab 
 initio on the part of him who had distrained them. 
 
 When an animal distrained as damage-feasant is impounded on 
 private premises, and not in a common pound, a subsequent ten- 
 der of sufficient compensation for the damage actually done is 
 good, and if the distrainer, by demanding an excessive sum for 
 damages as the condition of his release of the animal, obtains 
 payment of such sum from the owner, such payment is not vol- 
 untary, and the sum paid may be recovered in an action for 
 money had and received (a). 
 
 A landlord who has wrongfully evicted his tenant between two 
 quarter days is not entitled to the apportioned rent up to the day 
 of eviction under the Apportionment Act, 1870. 
 
 A landlord may be a trespasser ab initio as to part of the things 
 he distrains upon, and not as to the rest, as if there be a seizure 
 
 (.r) Tancred v. Leyland, 16 Q. 
 B. 669. 
 
 (y) Brown r. Glenn, 16 Q. B. 
 254. 
 
 . (z) Sutton v. Darke, 29 L. J. 
 Ex. 271. 
 
 (a) Green v. Duckett, 11 Q. 
 B. I). 275; 5-2 L. J., Q. B. 435; 
 
 48 L. J. 677 ; 31 W. R. 707 ; 47 
 J. P. 487. 
 
 (/>) Clapham v. Draper, 1 C. 
 & E. 484 : Mather, J. ; and see 
 Scott v. Brown, 51 L. T., 746, 
 Kay, J.; Sergeant, Ex parte, 
 Sander, In re, 54 L. J., Q. B. 
 331 ; 52 L. T. 516 ; 49 J. P. 582.
 
 ACTIONS AGAINST SHERIFFS. 325 
 
 of several chattels, some of which are by law seizable and others 
 not, the seizure is illegal only as to the part which it was unlaw- 
 ful to seize. Thus, in one well-known case (c), a landlord dis- 
 tained for rent, amongst other things, certain looms at work. 
 As there was quite sufficient distress on the premises without 
 these looms, they were not by law distrainable, so that so far as 
 regards them the distress was clearly a trespass a b initio. The 
 tenant paid the amount of the rent and the costs of the distress, 
 which was then withdrawn. It was held that the seizure of the 
 looms did not illegalise the whole proceeding, and that the ten- 
 ant was entitled to receive only the actual damage sustained by 
 the taking of these particular goods, and not the whole amount 
 paid by him. 
 
 In connection with the subject-matter of this note, it is usual Forcible 
 to refer to the position of a person having a right of possession entry, 
 in regard to his power of forcible entry on the land. Under an (d) 
 ancient statute the assertion of his right, if accompanied by a 
 breach of the peace, amounts to an indictable offence, but the 
 statute does not create any civil remedy (e), so that damages 
 cannot be recovered against a rightful owner for a forcible entry 
 on his land. For any independent wrong, however (such as an 
 assault or an injury to the furniture on the premises), committed 
 in the course of the forcible entry (/), damages can be recovered 
 even by a person whose possession was wrongful. 
 
 The reader is also referred to the cases of Thwaites v. "Wilding, 
 12 Q. B.D. 4 ; Nessf. Stephenson, 9 Q. B. D. 245 ; Ex parte Harris, 
 34 -W. R. 132. 
 
 Actions against Sheriffs, &c. 
 
 SEMAYNE r. G-RESHAM. 
 
 (Soinetimes called Semayne's Case.) 
 
 [5 Coke 91 (1605).] 
 
 Berisford and Gresham were two gay young sparks of 
 the sixteenth century. They were great churns, and 
 
 (c) Harvey v. Pocock, 11 M. & G. '644. 
 
 & W. 740. ( f ) Beddall v. Maitland, L. 
 
 (d) 5 Richard II., stat. 1, c. 8. R. 17 Ch. D. 174. 
 
 (e) Newton v. Harland, 1 M. 
 
 [129.]
 
 326 
 
 ACTIONS All A INST SHERIFFS. 
 
 lived together in a house, of which they were joint ten- 
 ants, in the suburb of Blackfriars. Berisford, as is the 
 manner of gilded youth, plunged deeply into debt, and 
 one of the largest and most pressing of his creditors 
 was a Mr. Semayne, to whom he "acknowledged a re- 
 cognisance in the nature of a statute staple." In these 
 impecunious circumstances he was lucky enough to die, 
 and, by right of survivorship, the ownership of the 
 house in Blackfriars became vested in the bereaved 
 Gresham. Now, in that house were "divers goods" of 
 the late Mr. Berisford, and to these, in virtue of the 
 little formality of the statute staple, Semayne not un- 
 reasonably considered himself entitled. Accordingly, 
 he gave instructions to the sheriffs of London to go 
 and do the best they could for him, and those function- 
 aries, armed with the proper writ, set off for Blackfriars. 
 But, when they came to the house, Gresham, who had 
 an inkling of what they had come for, shut the door in 
 their faces, "whereby they could not come and extend 
 the said goods." It was for thus "disturbing the ex- 
 ecution," and causing him to lose the benefit of his 
 writ, that Semayne brought this action. Much, how- 
 ever, to his surprise and disgust, he did not succeed, 
 for the judges said Gresham had done nothing wrong 
 in locking the front door, 'and that, even when the king 
 is a party, the householder must be requested to open 
 the door before the sheriff can break his way in. 
 
 Houses as 
 castles. 
 
 Process in 
 civil suit. 
 
 Semayne's ease is the chief authority for the popular legal 
 maxim, which says that every Englishman's house is his castle — 
 domus sua cat cuiquc lutissimum refugium — a maxim which, in the 
 lawless times from which our common law comes, was of the 
 utmost importance, for what the law cannot do in that it is weak, 
 a man must do for himself. 
 
 This maxim, however, in common with almost every legal 
 maxim, must be received with very considerable qualifications. 
 Thus, a sheriff or other officer of the law empowered to execute 
 process in a civil suit may, in pursuance of his duty, enter a 
 man's private dwelling house, although he would not be justified 
 in breaking any outer door or window in order to effect an en-
 
 ACTIONS AGAINST SHERIFFS. 327 
 
 trance into the house; and "when the king is a party," as, Capturing 
 e.g., in the ease of the apprehension of a felon, the officer may felons. 
 enter the house as hest he may by hreaking the door or otherwise. 
 It must, however, be carefully noted that no such breaking be- 
 comes justifiable until the officer, having given due notice of his 
 business and having demanded admission, lias been refused to be 
 allowed to enter the house. 
 
 Again, a landlord may enter upon the premises of a tenant who Distress for 
 has not paid his rent, for the purpose of distraining the tenant's rent, 
 goods. This is, however, subject to certain restrictions, as, for in- 
 stance, that the distress must take place after sunrise and before 
 sunset. And so. too, although a barn, or outhouse, not connected 
 with the dwelling-house, may be broken open in order to levy an 
 execution, yet it cannot be so broken in order to make a distress 
 for rent (g). The distinction has been stated to be '"between the 
 powers of an officer acting in execution of legal process and the 
 powers of a private individual who takes the law into his own 
 hands and for his own purposes." 
 
 And, as will perhaps be readily supposed, when a house has Recovery of 
 been recovered by an action of ejectment, the sheriff may break land, 
 the house and deliver possession to the plaintiff. For, after judg- 
 ment the defendant has no longer any right to retain possession 
 of the house. 
 
 Moreover, the rule that "every man's house is his castle" does sheltering 
 not apply to protect it from invasion in case his friend, upon a friends, 
 pursuit, takes refuge there or removes his goods thither in order 
 to avoid an execution. After demand of admission and refusal, 
 the sheriff may break open the doors of the house for the purpose ev, er ;g- 
 of executing the process of the law, but he does so at his peril, breaking 
 and, if it should turn out that his suspicions were not well open door, 
 founded, the act of breaking amounts to a trespass on his part (/<). 
 Indeed, it has been said that if the sheriff enters the house of a 
 stranger, even through an open door, he does so at his peril, and, 
 if the goods of which he is in search are not found there, he is a 
 trespasser (t). It appears, then, that, although the sheriff can- 
 not break the doors of one's house in the execution of a civil process 
 against one's own goods, he may yet justify a breach for the pur- 
 pose of seizing the goods of a stranger 'whose ordinary residence 
 is elsewhere. A house, however, in which a man habitually re- 
 sides would seem, on principle and on authority, to be on the 
 same footing as his own house so far as executions are concerned, 
 for it is there that one would naturally expect to find him and 
 his goods. The sheriff, therefore, could not break the outer door 
 of such a house to execute any process against the man's goods. 
 
 As to what is to be considered a breaking of the house as distin- What is a 
 
 (g) Brovvn^~Glenn, 16 Q. B. (i) Per Dallas, J., in Cooke v. hreaking. 
 254. Uiit, supra. 
 
 (h) Cooke v. Birt, 5 Taunt, 769.
 
 328 ACTIONS AGAINST SHERIFFS. 
 
 guished from a mere entry, the cases are not altogether reconcila- 
 ble. There are dicta and decisions which would lead to the con- 
 clusion that the opening of a door, which is simply latched, con- 
 stitutes a breaking on the part of the sheriff ; and so, too, if a 
 window be shut but not fastened it may not be opened for the 
 purpose of distraining (A). Where a pane in the window of the 
 house happened to be broken, it was held that the officer might 
 lawfully put his hand through the aperture in order to make the 
 arrest (/). 
 Execution If the sheriff in executing a writ break the house, without 
 
 good though authority of law for so doing, and thereby becomes a trespasser, 
 
 it seems that the execution, nevertheless, is good, and that the 
 trespasser. ' . ° 
 
 injured party has no remedy save an action lor trespass against 
 
 the sheriff. This, at any rate, appears true in respect of an 
 
 execution against goods. The execution creditor has done no 
 
 wrong, ami. therefore, so much of the sheriff's proceedings as 
 
 was for his benefit should be considered valid, the rest illegal. 
 
 An arrest of the person by means of an unlawful breaking has, 
 
 however, been deemed to be altogether void (m), and there is 
 
 authority for stating that, even in thecaseof an execution agaiust 
 
 goods, the court may in the exercise of its summary jurisdiction, 
 
 and in order to prevent an abuse of its process, undo the whole 
 
 of the proceedings (n) and set the execution aside. 
 
 The reader is referred to the following cases having reference to 
 sheriffs, they are too numerous to be dealt with at large in a book 
 so limited as the present volume : — 
 
 Smish v. Real, 9 Q. B. 340. Liability of execution creditor f>r 
 wrongful seizure under fi. fa. — Implied authority of solicitor — - 
 Direction to levy upon particular goods. 
 
 Royle v. Busby, 6 Q. B. D. 171. Sheriff's officer— Abortive 
 execution — Possession money — Who liable to pay. 
 
 Hillard p. Hanson, 21 Ch. D. 69. Wrongful seizure. — Fi. fa. — 
 Injunction — Costs. 
 
 Ex parte Webster, In re Morris, 22 Ch. D. 136. Costs on ap- 
 peal from an interpleader order. 
 
 Ayhvin v. Evans, 52 L. J. Ch. 105 ; 47 L. T. 568. Restraining 
 sale under fi. fa. 
 
 Smith v. Darlow, 26 Ch. D. 605 ; 53 L. J. Ch. 696 ; 50 L. T. 
 571 ; 32 W. R. 665. Interpleader — Possession money — Right of 
 appeal. 
 
 Ladmore r. Ludford, 13 Q. B. D. 415, Cave, J. Poundage — 
 Costs of execution. 
 
 (k) Nash v. Lucas, L. R. 2Q. (m) Kerbey v. Denbv, 1 M. & 
 
 B. 590. W. 336. 
 
 (I) Sandon v. Jervis, E. B. & (n) See Smith's L. C, vol. i., 
 
 E. 935, 942. p. 119.
 
 TROVER. 329 
 
 Scarlett?:. Hanson. 12 Q. B. D. 213. 
 
 Harvey v. Harvey. 2(5 Ch. D. 644. Duty in executing writ of 
 attachment. 
 
 Crabtree v. Robinson, 15 Q. B. D. 312 ; 33 W. R. 936. Entry 
 by window. 
 
 Crosthwaite, Ex parte, In re Pearce, 14 Q. B. D. 966 ; 54 L. J., 
 <J. B., 316 ; 2 M. B. R. 105. Duties oT sheriffs as to goods taken 
 i;i execution. 
 
 Willis v. Combe, 1 C. & E. 353. A sheriff is not liable for 
 ■damage to goods, which he has seized under a fi. fa., caused by 
 a mob breaking in and injuring the goods, if he has used reasona- 
 ble care and diligence respecting them — Stephen, J. 
 
 In re Purcell, 13 L. R. Ir. 489, Miller, J. Sheriff only entitled 
 io retain fees on amount actually levied. 
 
 Hunt v. Fenshawe, 12 Q. B. D. 162 ; 32 W. R. 316. D. Court 
 may order private sale of goods instead of public auction. 
 
 Kelly v. Browne, 12 L. R. Ir. 348 Ex. D. False return— Levy 
 — Cheques from debtor — Performance of condition. 
 
 Martin v. Tritton, 1 C. & E. 226, Lopes, J. Liability for 
 seizure — Interpleader order rescinded. 
 
 Trover, &c. 
 
 ARMORY v. DELAMIRIB. ri3Q.] 
 
 [1 Str. 504 (1722).] 
 
 A youthful chimney sweeper was fortunate enough 
 to find a very valuable jewel, and he took it to a jewel- 
 ler's to ascertain its value. The jeweller, taking ad- 
 vantage of the boy's simplicity, told him it was worth- 
 less, and offered him three halfpence for it, which the 
 lad declined, and demanded his prize back. The jeweller 
 refusing to return it, the boy went to law with him, and 
 elicited from the judges a favourable decision. 
 
 "You have fairly found this jewel," they said, "and
 
 330 
 
 TROVER. 
 
 Finding not 
 keeping. 
 
 Possession 
 nine-tenths 
 of the law. 
 Encroach- 
 ments on 
 commons. 
 
 Command 
 
 c m be de- 
 nied. 
 
 Jus tertii. 
 
 Spoilers. 
 
 nobody except the real owner has a better title to it 
 than yourself ; till he shall appear, you may keep it 
 against all the world, and maintain trover for it.' 
 
 There is not more than a couple of grains of truth in the time- 
 honoured tradition that finding is keeping. The duty of the finder 
 of a jewel, or other valuable article, is to discover, if he can, Ihe 
 person who has lost it; and, if he keeps it though he knows per- 
 fectly well who that person is, he will merit nobody's sympathy 
 if he finds himself shortly afterwards undergoing six months' 
 imprisonment with hard labour for stealing (<>). 
 
 This note, however, is concerned with the case where the real 
 owner of the thing found is not ascertainable, and the chief point 
 on which Armory v. Delamirie is an authority is as to what is 
 sufficient to enable a person to maintain an action for trover. It 
 is not merely the person in whom resides the right of properly 
 who can maintain such an action. Armory had not that right. 
 It was all along in the person who had lost the jewel. All Arm- 
 ory had was the right of possession ; but it was considered that 
 that was quite a sufficient foundation for an action of trover as 
 against a mere wrong-doer. On the same principle (viz., that 
 mere possession is sufficient as against a wrong-doer) rests a well- 
 known rule in actions of ejectment, namely, that the plaintiff 
 must recover by the strength of his own title, and. not by the 
 weakness of his opponent's. Possession, as the popular adage has 
 it, is nine-tenths of the law. 
 
 A man in Bedfordshire enclosed some waste land, and died with- 
 out having had it for twenty years. It was held that the heir of 
 his devisee could maintain ejectment against a person who had 
 entered upou it without any title (p). 
 
 It is on the sa.me principle that the rule in pleading that a com- 
 mand cannot be denied rests. The position the person so pleading 
 takes up is this : "Granted that the person you profess to repre- 
 sent has better right than I have, yet you don't represent him ; he 
 never told you, for instance, to come and take my cattle. I may 
 not have a right against all the world, but I have a right against 
 you (q). * 
 
 So a defendant in possession may set up a jus frrlii — that is, 
 the right of a third person — .to the lands, to disprove the claim- 
 ant's alleged right. 
 
 Armory v. Delamirie also illustrates an important maxim 
 of the law, — omnia prsesumuntur contra spoliaiorem : that is say, to 
 every presumption shall be made to the disadvantage of a 
 wrong-doer (r). Delamirie refused to produce the stone when he 
 
 (o) See Shirley's Sketch of the 
 Criminal Law, p. 5'2. 
 
 ( p) Asher i>. Whitlock, L. R. 
 1 Q. B. 1 . 
 
 (q) Chambers r. Donaldson, 
 
 1 1 East, 65, and Dobree v. Na- 
 pier, 2 Bing., N. C, 781. 
 
 (r) Carter v. Bernard, 13 Q. B. 
 945.
 
 TROVER. 331 
 
 gave back the socket, so it was presumed as against him to be the 
 best kind of stone that would fit the socket. So, if a man with- 
 holds an agreement under which he is chargeable, it is presumed 
 as against him to have been properly stamped (s). A person once 
 claimed a debt from another, the proof of which was to be found 
 in certain documents which were sealed up and in his keeping. 
 Without having any business to do so, he broke the seal and opened 
 the bundle of documents. The court did not in the least doubt 
 that all the papers were before it, and did not doubt the justness 
 of the claim, but the creditor's whole demand was disallowed in 
 odium spoliatoris. So where a diamond necklace was missed, and 
 part of it traced to the defendant, who could give no satisfactory 
 account of how it came into his possession, it was held that the 
 whole necklace might be presumed to have come into his hands 
 so that he must pay the full value (I). 
 
 A third point was decided in the leading case, viz. , that "a Respondeat 
 master is answerable for the loss of a customer's property in- superior. 
 trusted to his servant in the course of his business as a trades- 
 man.' ' The responsibility of a master for the torts of his servant 
 will be found treated of under the leading case, Limpus v. Gen- 
 eral Omnibus Co., p. 293. 
 
 When goods are shipped under a bill of lading, drawn in parts Trover, 
 to be delivered to the consignee ' ' or his assigns, ' ' the one of which 
 bills being accomplished, the others to stand void, the master, or 
 the warehouseman who has the custody of the goods under the 
 Merchant Shipping Act, 1862, ss. G6-78 is justified in delivering 
 to the consignee, on production of one part, although there has 
 been a prior indorsement for value to the holder of another part, 
 provided the delivery be bond fide and without notice or knowl- 
 edge of such prior indorsement. Goods having been shipped for 
 London, consigned to C. & Co., the ship master signed a set of 
 three bills of lading marked first, second and third respectively, 
 making the goods deliverable to C. & Co. or their assigns, freight 
 payable in London, the one of the bills being accomplished, the 
 other to stand void. During the voyage C. & Co. indorsed the 
 bill of lading marked "first" to a bank in consideration of a 
 loan. Upon the arrival of the ship at London the goods were 
 landed and placed in the custody of a dock company in their 
 warehouses, the master lodging with them notice under the Mer- 
 chant Shipping Act, 1862, s. 68, &c, to detain the cargo until the 
 freight should be paid. C. & Co. then produced to the dock com- 
 pany the bill of lading marked "second" unindorsed, and the 
 dock company entered C. & Co. in their books as proprietors of 
 
 (s) Crisp v. Anderson, 1 Stark. (7) Mortimer v. Cradock, 12 
 
 35. L. J., C. P., 166.
 
 332 TROVER. 
 
 the goods. The stop for freight heing afterwards removed, the 
 duck company, bond fide and without notice or knowledge of the 
 bank's claim, delivered the goods to other persons upon delivery 
 orders signed by C. & Co. Held, affirming the decision of the 
 Court of Appeal, that the dock company had not been guilty of 
 a conversion, and that the bank could not maintain any action 
 against them («). 
 
 For cases on the subject of trover see — 
 
 Johnson v. Hook, 31 W. R. 812 Stephen, J. Measure of dam- 
 ages — also 1 C. & E. 89. 
 
 Delaney v. Wallis, 14 L. R. Ir. 31 C. A.; 15 Cox, C. C. 525, C. 
 A. Sale of stolen goods in market overt. 
 
 Tyler v. L. & S. W. Ry. Co., 1 C. & E. 285, B. Huddleson. 
 Goods in custody of police. 
 
 Comite des Assureurs Maritimes v. Standard Bank of South 
 Africa. 1 C. & E. 87, Stephen, J. Right of owner to follow pro- 
 ceeds of sale. 
 
 Conversion. 
 
 [131.] HILBERY v. HATTON. 
 
 [2 H. &C. 822 (1864).] 
 
 Mr. Hilbery, a Liverpool merchant, was the owner of 
 the ship John Brooks, which, in 1862, was chartered to 
 take a cargo to Africa. The ship arrived off the coast 
 of Africa, but unfortunately stranded there. The con- 
 signee of the cargo took possession of the vessel, and, 
 without any authority, had her put up for sale. One 
 Thompson, the agent of the defendants, some English 
 merchants, finding her going cheaply, bought the ship 
 for his principals without knowing that the consignee 
 had no business to sell her. The defendants, on being 
 apprised by Thompson of what he had done, wrote back 
 to him — " You do not say from whom you bought her, 
 
 a I rlyn, Mills, C'urrie & Co. v. East and West India Dock Co., 
 (i Q. B. D. I?.".. 7 App. Cases, 591.
 
 CONVERSION. 333 
 
 nor whether you have the register with her. You had 
 better for the present make a hulk of her.'''' In an ac- 
 tion by Hilbery, it was held that there was evidence of 
 a conversion by the defendants, in spite of their circum 
 spection. 
 
 This case is selected as illustrating the severity with which the "What consti- 
 Ittw views the intermeddling with another mail's property. The recent tutes con- 
 case of Kirk v. Gregory («), where the defendant had removed %ersion - 
 some jewel len" from the room of a dying man under the reason- 
 able fear of its being stolen, may also be referred to. Hiort v. 
 Bott (x) is also a good illustrative case. An ingenious scoundrel, 
 named Grimmett, persuaded the defendant to indorse to him a 
 delivery order for some barley, which he said had been sent to 
 the defendantby mistake. In spite of his good intentions, which 
 were simply to correct what he believed to be an error, the de- 
 fendant was held liable. 
 
 Everyone who takes part in the wrongful conversion of another Servant 
 man's property is responsible, even though he is only a servant obeying 
 obeying his master's orders (y). "The only question is," said or ers ' 
 Lord Ellenborough in the case last referred to, "whether this is 
 a conversion in the clerk which undoubtedly was so in the mas- 
 ter. The clerk acted under an unavoidable ignorance and tor his 
 master's benefit when he sent the goods to his master; but, never- 
 theless, his acts may amount to a conversion; for a person is guilty 
 of a conversion who intermeddles with my property, and disposes 
 of it, and it is no answer that he acted under authority from an- 
 other who had himself no authority to dispose of it. And the 
 court is governed by the principle of law, and not by the hard- 
 ship of any particular case. " About four or live years ago the 
 owner of some cabs let them to a Mr. Peggs, cab-master, under a 
 certain agreement. Mr. Peggs fraudulently got the defendant, Responsi- 
 an auctioneer, to sell them by auction. Though the auctioneer bility of 
 had thought all the time that the cabs belonged to Peggs, and ' 
 bad acted in a straightforward and correct manner, he was held 
 liable in conversion to the true owner. "The defendant," said 
 the court, "had possession of these goods; he advertised them 
 for sale; he sold them, and transferred the property in them, and 
 therefore, from beginning to end he had control over the property: 
 and unless we are prepared to hold contrary to all the definitions 
 of conversion which have been laid down, we must hold that such 
 acts amount to conversion. But the auctioneer will not be held 
 guilty of conversion if he has not claimed to transfer the iittc nor 
 purported to sell, but has simply re-delivered the chattels to the 
 
 (v) 1 Ex. D. 5.",, (y) Stephens v. Elwall, 4 M. 
 
 (x) L. R. 9 Ex. 86. S. 259. 
 
 23 COMMON LAW.
 
 334 CONVERSION. 
 
 person to whom the man from whom he received them told him 
 
 to delivei them (z). 
 
 Conversion Where the conversion cannot he proved hy any positive act, it 
 
 proved by nmv jj e inferred from proof of a demand of the goods by the plain- 
 
 ' ' . , ' tiff, and a refusal to deliver them by the defendant, he having the 
 
 control over them at the time (a). 
 Who may ^he owner of goods let to another for a term still continuing 
 
 sue. cannot maintain an action for conversion (b); hut any special or 
 
 temporary ownership with immediate possession is sufficient (c). 
 What may The action lies only in respect of specific personal property; there- 
 
 he sued for. f ore n ot f or money unless identified in specie (d). 
 The dam- The measure of damages is, in general, the value of the goods, 
 
 ages. B u t ^ n j s j s uo t necessarily so, the damages heing compensation for 
 
 the loss actually sustained by the wrongful act (e). 
 Other cases. The following cases on this subject may be consulted: — 
 
 Spackman v. Foster, where title deeds of the plaintiffs were 
 fraudulently taken from them and deposited by a third person, 
 without their knowledge, with the defendant in 1859, who held 
 them, without knowledge of the fraud, to secure the repayment 
 of a loan. The plaintiffs, on discovering the loss of the deeds in 
 1882, demanded them of the defendant, and upon his refusal to 
 give them up brought an action to recover them, to which the de- 
 fendant pleaded the Statute of Limitations. The court held 
 that, until demand and refusal to give up the deeds to the real 
 owners, they had no right of action against which the statute 
 would run (e). And see Hardman v. Booth, 1 H. & C. 803; 
 Cooper v. Chitty, 1 Bull. 20; Mullince v. Florence, 3 Q. B. D. 
 484; Jones v. Hough, 5 Ex. D. 115; Fouldes v. Willoughby, 8 M. 
 & W. 540; Glyn v. E. & W. India Dock Co., 7 App. Cases, 591 
 et ante : Lord v. Price, L. R. 9 Ex. 54; and Matthiessen v. Lon- 
 don and County Bank, 5 C. P. D. 7. 
 
 (z) National Mercantile Bank (d) Orton r. Butler. 5 B. & 
 v. Rymill. 44 L. T. 767. Aid. 652; and see Foster v. 
 
 (a) France v. Gaudet, L. P. Green, 31 L. J. Ex. 158. 
 
 6 Q. B. 199. and Philpott v. (e) Hiort v. L. & X. W. Ry. 
 
 Kelley, 3 A. & E. 106. Co., 4 Ex. D. 188; Chinery \\ 
 
 (b) Gordon v. Harper, 7 T. R. Viall, 5 H. & N., 288; and 
 9; and see Milgate r. Kebble, Livingstone v. Rawyards Coal 
 3 M. & G. 100. Co., 5 App. Ca. 25; and see 
 
 (c) Legg v. Evans, 6 M. & W. Spackman v. Foster, 11 Q. B. 
 36, and Brierly v. Kendall, 17 D. 99. 
 
 Q. B. 937
 
 DEFAMATION, 335 
 
 Defamation. 
 
 CAPITAL, AND COUNTIES BANK r. HENTY. [132.] 
 
 [7 App. Cases 741, 52 L. J., Q. B., 232; 47 L. T. 662; 31 W. R. 
 
 157; 47 J. P. 214 (1882).] 
 
 " Messrs. Henty and Sons hereby give notice that 
 they will not receive in payment cheques drawn on any 
 of the branches of the Capital and Counties Bank." 
 The publication of a circular to this' effect by some 
 Chichester brewers caused a run on the bank, and an 
 action for libel. But it was held that the circular was 
 not libellous. "It seems to me unreasonable," said 
 Brett, L.J., "that where there are a number of good 
 interpretations, the only bad one should be seized upon 
 to give a defamatory sense to the document." 
 
 A libel may be defined as the malicious publication of untrue Definition, 
 defamatory matter by writing, printing, or the like signs, with- Libel, 
 out j ust cause or excuse. 
 
 Slander consists of defamatory matter merely spoken. Slander. 
 
 An action for libel may always be brought when the words Special dam- 
 published expose the plaintiff to hatred, ridicule, or contempt, or age. 
 are calculated to injure him in his business. 
 
 But, except in three cases, the plaintiff in an action lor slander 
 must prove special damage. The three exceptional cases are: — 
 
 (1.) Where the words charge the plaintiff with having com- 
 mitted some indictable offence {infra). 
 
 (2.) "Where they impute to him a contagious or infectious dis- 
 ease. 
 
 (3. ) Where they are spoken of him as a professional or busi- 
 ness man. 
 
 In Riding v. Smith (/), it was held that a grocer and draper, 
 whose wife helped him in the shop, could recover damages for 
 slander charging her with having committed adultery on the 
 premises, there being evidence of loss of custom not accounted 
 for except by the slander. 
 
 (/) 1 Ex. D. 91.
 
 336 
 
 DEFAMATION. 
 
 Malice. 
 Repetition of 
 slander. 
 Inuendo. 
 
 Publication. 
 
 Criticisms. 
 
 Truth. 
 
 Injunction. 
 
 Evidence. 
 
 In Webb v. Beavan (g), words imputing that plaintiff had been 
 guilty of a criminal offence will support an action for slander, 
 without special damage, even though the criminal offence im- 
 puted is not indictable. 
 
 Malice is not really necessary to the plaintiff's case (/<.). 
 
 To repeat a slander is as actionable as to start it (/). 
 
 When the words used are not actionable in themseves, but by 
 reason-Of their intended meaning (e. g., if used ironically), an 
 inuendo must be laid, the question whether the words are capa- 
 ble of the meaning alleged, and whether such meaning is action- 
 aide, being for the court, and the question whether the words 
 were used with the alleged meaning for the jury (A). 
 
 Publication to a third party must be proved. The mere send- 
 ing a man an abusive letter contained in a fastened-up envelope 
 i$ not actionable (I). 
 
 Depreciatory criticisms, not being false and malicious, by one 
 tradesman on the goods of another are not actionable (m). 
 
 Truth is a complete answer to a claim for damages for slander 
 or libel. 
 
 As to restraining libels by injunction, see Hill v. Hart-Davis 
 (ji), and Quartz, &c, Co. v. Beall (o). 
 
 In an action for libel, evidence of the existence of rumours to 
 the same effect as allegations in the libel is - not admissible; nor 
 is evidence of particular acts of misconduct on the part of the 
 plaintiff; but general evidence of his reputation may probably 
 be given in mitigation of damage (p). 
 
 The action for slander of title, it may be mentioned here, is 
 not strictly an action for defamation, but an action for special 
 damage to the plaintiff by a false and malicious statement affect- 
 ing his title to property, and it does not matter whether the 
 words are written or spoken (q). 
 
 (g) 11 Q. B. D. 609; 52 L. J., 
 Q. B. 544; 49 L. T. 201; 47 J. 
 P. 488; and see Societe Fran- 
 caises des Asphalt es v. Farrell, 
 1 C. & E. 563; Simmons v. 
 Mitchell, 6 App. Cases, 156; 
 Weldon v. De Bathe, 54 L. J., 
 Q. B., 113; 33 W. R. 328, C. A. 
 
 (h) Bromage v. Prosser, 4 B. 
 & C. 255. 
 
 (0 Watkin v. Hall, L. R. 3 
 Q. B. 396. 
 
 (Jfe) Ruel v. Tatnell, 43 L. T. 
 507; Simmons v. Mitchell. 43 
 L. T., X. S., 710; and see the 
 leading case. 
 
 (7) Phillips v. Janser, 1 Esp. 
 625; Peacock v. Reynal, 2 
 
 Brown, 151; but see Delacroix 
 v. Therenot, 2 Stock, 63. 
 
 (m) Young v. Macrae, 3 B. 
 & S. 264; Harman v. Delaney, 
 2 Str. 898; Evans v. Harlow, 52 
 Q. B. 624; and W. Counties 
 Manure Co. v. Lanes, &c, Co., 
 L. R. 9 Ex. 218. 
 
 (n) 31 W. R. 22. 
 
 (o) 51 L. J. Ch. 874; and see 
 (IS.) post. 
 
 (})) Scott v. Sampson, 8 Q. 
 B. D. 491. 
 
 (q) Malachv v. Soper, 3 Bing, 
 N. C, 371; Brook v. Raw], 4 
 Ex. 371 ; Wren v. Weild, L. R. 
 4 Q. B. 730.
 
 DEFAMATION. 337 
 
 For the law of libel relative to newspapers, see the Newspaper Newspap< 
 Libel and Registration Act, 1881 {>•). 
 
 In Chamberlain v. Boyd (s), the plaintiff was a candidate for 
 membership of the Reform Club, but upon a ballot of the mem- 
 bers was not elected. A meeting of the members was called to 
 consider an alteration of the rules regulating the election of 
 members. The defendant falsely and maliciously spoke and pub- 
 lished of the plaintiff as follows: — " The conduct of the "plain- 
 tiff "was so bad at a club in Melbourne, that a round robin was 
 signed, urging the committee to expel" him; "as, however," 
 he was " there only for a short time the committe did not pro- 
 ceed further ;" whereby the defendant induced a majority of the 
 members of the club to retain the regulations under which the 
 plaintiff had been rejected, and thereby prevented the plaintiff 
 from again seeking to be elected to the club. It was decided 
 upon demurrer that the claim disclosed no cause of action, for the 
 words complained of, not being actionable in themselves, must 
 be supported by special damage in order to enable the plaintiff 
 to sue ; and the damage alleged was not pecuniary or capable of 
 being estimated in money, and was not the natural and proba- 
 ble consequence of the defendant's words. 
 
 The court has power to restrain a person from making slander- 
 ous statements, whether oral or written, calculated to injure the 
 business of another (I). 
 
 The vendor of a newspaper in the ordinary course of his busi- >j ews 
 ness, though he is prima 'facie liable for a libel contained in it, is vendors, 
 not liable if he can prove that he did not know that it contained 
 a libel ; that his ignorance was not due to any negligence on his 
 own part ; and that he did not know, and had no ground for sup- 
 posing that the newspaper was likely to contain libellous matter. 
 If he can prove these facts he is not a publisher of the libel (u). 
 As to the question of admitting as evidence other parts of a news 
 paper to show in what sense the words constituting the alleged 
 libel were used, see Bolton v. O'Brien (v). For the law upon Criminal in- 
 criminal informations for libel, see. Reg. v. Yates (x). As to par- formation, 
 ticulars, see Bradbury v. Cooper (y). 
 
 (r) 44 & 45 Vict. c. 60. B. D. 354. 
 
 (s) 11 Q. B. D. 407 ; 52 L. J., (v) 16 L. R. Ir. 97 Q. B. D. 
 Q. B., 277; 48 L. T. 328; 31 W. (a;) 14 Q. B. D. 648; 54 L. J., 
 
 R. 572; 47 J. P. 372, C. A. Q. B., 258; 52 L. T. 305; 33 W. 
 
 (1) Herman Loog v. Bean, 26 R. 482; 49 J. P. 436, C. A. 
 Ch. D. 306 ; 53 L. J.Ch. 1128 ; (y) 32 W. R. 32 ; 12 Q. B. D. 
 
 51 L. T. 442 ; 32 W. R. 994 ; 48 94 ; 53 L. J., Q. B., 558 ; 48 J. 
 
 J. P. 708, C. A. P. 198. 
 
 (m) Emmens v. Pottle, 16 Q.
 
 ;;::s 
 
 PRIVILEGED COMMUNICATIONS. 
 
 Privileged Communications. 
 
 [133.] HARRISON v. BUSH. 
 
 [5 E. &B. 344 '(1855).] 
 
 At Frome, in Somersetshire, there was a contested 
 election, with the visual amount of excitement and party 
 feeling. After it was over, Mr. Bush, an elector of 
 Frome, wrote a letter to Lord Palmerston, who was then 
 Home Secretary, complaining of the conduct of one of 
 the local magistrates during the election, and saying 
 that he bad been stirring up and encouraging sedition, 
 instead of putting it down with a strong hand. The 
 magistrate brought this action for libel, but, as Mr. Bush 
 had written his letter with the best intentions and in 
 the discharge of what he considered to be a public duty, 
 he was not successful. 
 
 Absolute or 
 conditional. 
 
 Duty or 
 interest. 
 
 A man must always discharge his duty to society and himself, 
 notwithstanding that it may involve the employment of harsh 
 speech or writing concerning his neighbours ; and therefore such 
 speech or writing, even though it happens not to be true, is 
 privileged. 
 
 The privilege may be absolute or conditional. 
 
 Speeches in Parliament (z), or in a law court (a), 2xe absolutely 
 privileged. So, too, are the statements of witnesses, however 
 irrelevant ib). 
 
 Ordinary communications, however, are not privileged abso- 
 lutely, but only prima facie ; and the rule is that wherever one per- 
 son haiing an interest to protect, or a legal or moral duty to perform, 
 make* a communication to another, such other having a corresponding 
 
 (z) R. v. Abingdon, 1 Esp. 
 228; Davison v. Duncan, 7 E. & 
 B. 229; and Goffin v. Donnelly, 
 G Q. B. D. 307. 
 
 (a) Scott v. Stansfeld, L. R. 3 
 Ex. 220. and Mackay ». Ford, 
 5 H. & N. 792; Minister ». Lamb, 
 11 Q. B. D. 588; 52 L. J., Q.B., 
 
 726; 49 L. T. 252: 32 W. R. 248; 
 47 J. P. 805. C. A., dissenting 
 from Kendillon ?•. Maltby. C. & 
 M. 402: 2 M. & R. 438. 
 
 (b) Seaman r. Netherclift, 2 
 C. P. D. 53: Dawkins v. Roke- 
 bv, L. R. 7 H. L. 744: and Gof- 
 fin v. Donnellv, 6 Q. B. D. 307.
 
 PRIVILEGED COMMUNICATIONS. . 339 
 
 interest or duty, this communication in prima facie privileged. If, 
 for example, a person of indifferent character were to try to get 
 elected into a respectable club, a member who knew something 
 of his antecedents would be justified in making to the commit- 
 tee, or to another member, such a communication as would in- 
 sure his being duly pilled. So, too, a master who parts with a 
 servant is justified in telling a person who, with a view to em- 
 ploying the man, inquires about his character, that he is a thief 
 or a drunkard (>). In the recent case of Waller v. Loch (d) the Waller v. 
 plaintiff was the daughter of a deceased officer in the army, and Loch. 
 was in distressed circumstances. A subscription list was started 
 for her, and she would have made a good hatful out of it, if 
 somebody, a friend of one of the intending subscribers, had not 
 written to the Charity Organisation Society, of which the defend- 
 ant was the secretary, for information about her. The society's 
 report was unfavourable, — the lady was an imposter, it said, and 
 a begging letter writer who lived extravagantly while she was 
 appealing for charity. This report Avas held to be a privileged, 
 communication. "A duty of imperfect obligation," said Cotton, 
 L.J., i: attaches on everyone to do what is for the good of soci- 
 ety. In that sense it is the dutyof those who have knowledge 
 as to persons seeking charitable relief to communicate it when 
 asked by persons who wish to know whether the applicants are 
 deserving objects." 
 
 But even in those cases where a man has a right to make a £> on if. te j| 
 communication affecting another's character, he must take care to everybody. 
 make if to the" proper person. He will not be protected against the 
 unpleasant consequences of an action for slander if, as a worthy , 
 
 draper in the Harrow Road did, he goes about telling everybody 
 he meets that So-and-so has been robbing him (e). 
 
 Privilege, moreover, is not more than a presumption. It is Express 
 open to the plaintiff to give proof of express malice, and show that malice de- 
 the defendant's professed zeal for the public, or the urgent neces- stioys P m 'i- 
 sity of protecting his interests, is all pretence, and that he really 
 has no other object than to injure the plaintiff (/). 
 
 Privilege or not, is a question for the judge; but express malice Judge and 
 or not, is for the jury (</). J U1 T- 
 
 An interesting case (/<) on privileged communications has come 
 
 (<■) See Davies v. S nea< h L. son, but was held privileged, 
 
 P. 5 Q. B. 6U8, and Webb v. as it would have been had it 
 
 East, 5 Ex. D. 108. been correctly forwarded; and' 
 
 (d) 7 Q. B. D. 619. Peg. v. Perry, 15 Cox, C. C. 
 
 (c) Harrison v. Fraser, 29 W. 169. Huddleston, B. 
 P. 652; and see Toogood v. ( f) Clark v. Molvneiix, 3 Q. 
 
 Spy ring, 1 C. M. & R. 181; and B. D. 2-16. 
 
 see Tompson v. Dashwood. 11 (a) Cooke v. Wildes, 5 E. & 
 
 Q. B. D. 43;. 52 L. J., Q. B. 425; B. 328. 
 
 48 L. T. 943, D., where the let- (//) Botterill r. Whytehead, 
 
 ter was sent to the wrong per- 41 L. T. 588.
 
 340 
 
 PRIVILEGED COMMUNICATIONS. 
 
 ( Jhurcharchi 
 ed are. 
 
 Newspapers. 
 
 Newspaper 
 reports of 
 certain meet- 
 ings privileg- 
 ed. 
 
 Privilege to 
 be exercised 
 with judg- 
 ment. 
 
 before the Exchequer Division. It having been determined to 
 restore Skirlaugh Church, an ancient Gothic edifice near Hull, 
 the committee were thinking of putting the work in the hands 
 ofBotterill & Co., some Hull architects, when they received a 
 memorial from the defendant, a clergyman, a resident in the 
 neighbourhood, and a member of the Society for the Protection 
 of Ancient Buildings and Monuments, recommending them not 
 to do so, as Botterill & Co. were Wesleyans, and knew nothing 
 about church architecture. It was considered that this letter of 
 the aesthetic clergyman was not entitled to any particular privi- 
 lege, and the architects were allowed to keep the verdict with 
 substantial damages which the jury had given them. 
 
 The fair reports of newspapers are privileged. But in Stevens 
 v. Sampson (■<) it was held that a true report of the proceedings 
 in a Court of Justice sent to a newspaper by a person who is not a 
 reporter on the staff' of the newspaper is not privileged absolutely, 
 and that if it be sent from a malicious motive an action will lie. 
 By the 2nd section of the Newspaper Libel Act, 1881 (k), it is 
 provided that "Any report published in any newspaper of the 
 proceedings of a public meeting shall be privilege, if such meet- 
 ing was lawfully convened for a lawful purpose and open to 
 the public, and if such report was fair and accurate, and 
 published without malice, and if the publication of the matter 
 complained of was for the public benefit; provided always, 
 that the protection intended to be afforded b} r this section 
 shall not be available as a defence in any proceeding, if the 
 plaintiff or prosecutor can show that the defendant has refused to 
 insert in the newspaper in which the report containing the mat- 
 ter complained of appeared a reasonable letter or statement of 
 explanation or contradiction by or on behalf of such plaintiff or 
 prosecutor. ' ' 
 
 It may be remarked that, even when a communication is pri- 
 vileged, it must be made temperately and judiciously. It is one 
 thing, for instance, to make your communication in a sealed 
 envelope, and another to make it unnecessarily by a telegram, 
 which in the course of its transmission must of course be read 
 and giggled over by a number of clerks (7). In a case (in) in Ire- 
 land it appeared that the defendants, some seed merchants, had 
 applied to a customer for the payment with a post-card, on which 
 was written — 
 
 • " Sir, — Your plea of illness for not paying this trifle is mere moon- 
 shine. We will place the matter in our solicitor's hands if ivc have 
 not stamps by return, if it costs us ten times the amount." 
 
 The customer brought an action for libel, and the seed mer- 
 
 (i) 5 Ex. D. 53. 
 
 (k) 44 & 45 Vict. c. 60. 
 
 (/) Williamson v. Freer, 
 
 L. 
 
 R. 9 C. P. 393. 
 
 (m) Robinson v. Jones, L. R. 
 Ir. 4 C. L. 391.
 
 TORTS AND FELONIES. 341 
 
 chants set up the defence of privileged communication ; hut the 
 court, following Williamson v. Freer, held that the defendants, 
 though the communication might he prima facie privileged, had 
 gone beyond their rights in making it by post-card. " It is diffi- 
 cult,"' said Palles, C.B., "to conceive any case in which there can 
 be a necessity to substitute a post-card for a closed letter. 
 
 "Where a person cburts the alleged slander by a question, the 
 occasion is privileged (Palmer v. Hummerston, 1 C. & E. 36, Day, 
 J.; and see Jones v. Thomas, 34 W. K. 104 D., and Proctor v. 
 Webster, 16 Q. B. D. 112). 
 
 Torts which are also Crimes. 
 
 WELLS v. ABRAHAMS. [134.] 
 
 [L. R. 7 Q. B. 554 (1872).] 
 
 Mr. Wells, becoming impecunious, decided to try 
 and borrow some money. He instructed his wife to 
 take a quantity of jeweller}', including a magnificent 
 brooch, to the shop of Mr. Abrahams, and get a sub- 
 stantial loan on the security. The negotiations came' 
 to nothiDg, and Abrahams returned a packet purport- 
 ing to contain the jewellery. When the packet came to 
 be opened, there was no brooch inside, and Mrs. Wells 
 charged Abrahams with having stolen it. Instead, 
 however, of a prosecution for felony, this action of tro- 
 ver was brought against him, and a verdict was found 
 for the plaintiff for £150. The question now was 
 whether the judge ought to have nonsuited the plain- 
 tiff, on the ground that the facts showed a felonious 
 taking of the brooch, and Wellock v. Constantine (n) 
 Was cited. It was held, however, that the judge was 
 quite right in not having nonsuited, for he was bound 
 to try the issues on the record. 
 
 (n) 32 L. J. Ex. 285.
 
 342 
 
 TORTS AND FELONIES. 
 
 The supposed 
 
 rule and its 
 enforcement. 
 
 Rapes and 
 
 assaults. 
 
 Wrong to 
 nonsuit. 
 Ball's case. 
 
 View of 
 
 Bramwell 
 
 J. 
 
 " It is undoubtedly laid down in the text-books," says Lush, 
 J., in the leading ease, " that it is the duty of the person who is 
 the victim of a felonious act on the part of another to prosecute 
 for the felony, and he cannot obtain redress by civil action until 
 he has satisfied that requirement ; but by what means thai duly is 
 in bt enforced we arc nowhere informed.' 1 ' 1 
 
 Wellock !>. Constantine was an action by a young woman 
 against her master for an assault; but when she came into the 
 witness-box her case turned out to be that she had been raped, and 
 so the judge nonsuited, telling her to go and prosecute her mas- 
 ter criminally before she asked a civil court to give her dam- 
 ages. 
 
 Wills v. Abrahams, however, shows that a nonsuit under such 
 circumstances is wrong ; and what is the proper course, no one 
 knows. A perusal of the judgments in the recent case of Ex parte 
 Ball (o) will show how doubtful and unsatisfactory is the present 
 state of the law. The following remarks of Bramwell, L.J. (in 
 which James, L.J., said that he entirely concurred), though 
 rather long, are quite worth transplanting from the Reports into 
 a text book: — "In this case the debt which is sought to be 
 proved arose from the felonious act of the bankrupt in embez- 
 zling the moneys of his employers. The question is, whether, 
 that being so, and no more having been done than has been done 
 towards prosecuting the bankrupt, the trustee in the liquidation 
 of Messrs. Willis & Co., the employers, can prove the debt in the 
 bankruptcy. The law on this subject is in a remarkable state. 
 For 300 years it has been said in various ways by judges many 
 of the greatest eminence, without intimating a doubt, except in 
 one instance, that there is some impediment to the maintenance 
 'of an action for a debt arising in this way. The doubt is that 
 which was not so much expressed by Mr. Justice Blackburn, in 
 Wells v. Abrahams (p), as to be inferred from what he said. But 
 though such an opinion has been entertained and expressed for 
 all this time, there are but two cases in which it has operated to 
 prevent the debt being enforced. These two cases are Wellock 
 v. Constantine (q) and Ex parte Elliott (r). Wellock v. Con- 
 stantine has been said to be no authority. If I may speak of 
 myself, I have no doubt I concurred in the judgment, or the 
 statement that I did so would have been set right ; but I 
 am sure I must have done so in the faintest way, not only 
 from what I think now, but from what I am reported 
 to have said then, and from there being no reason given 
 for the judgment which I should have desired to give if I 
 had thought there were any good ones to support it. But, at all 
 events, there are the opinions ot Chief Baron Pollock and Mr. 
 
 (o) 10 Ch. Div. rif.7. 
 
 (p) Law Rep. 7 Q. B. 554. 
 
 (?) 2 H. & C. 146. 
 (r) 3 Mont. &A. 110.
 
 TORTS AND FELONIES. 343 
 
 Justice "Willcs — opinions which no one who knew those judges 
 will undervalue. Then there is the judgment in Ex parte Elliott, 
 besides the expressed opinion for centuries that the felonious 
 origin of a debt is in some way an impediment to its enforce- 
 ment. But in what way ? 1 can think of only four possible 
 ways : — 1. That no cause of action arises at all out of a felony ; 
 2. That it does not arise till prosecution ; 3. That it arises on 
 the act, but is suspended till prosecution ; 4. That there is 
 neither defence to nor suspension of the claim by or at the in- 
 stance of the felon debtor, but that the court, of its own motion, 
 or on the suggestion of the Crown, should stay proceedings till 
 public j ustice is satisfied. It must be admitted that there are 
 great difficulties in the way of each of these theories. That the 
 first is not true is shown by Marsh v. Keating (s), where it was 
 held that prosecution being impossible, a felony 'gave rise to a 
 recoverable debt. It is difficult to suppose that the second sup- 
 posed solution of the problem is correct. That would be to make 
 the cause of action the act of a felon plus a prosecution. The 
 cause of action would not arise till after both. Till then the 
 Statute of Limitations would not run. In such a case as the 
 present, or where the felon had died, it would be impossible. 
 And it is to be observed that it is never suggested that the cause 
 of action is the debt and the prosecution. The suspension of a 
 action is a thing nearly unknown to the law. It exists where a • 
 negotiable instrument is given for a debt, and in cases of com- 
 positions with creditors, and these were not held till after much 
 doubt and contest. There may be other instances. And what 
 is to happen ? Is the Statute of Limitations to run ? Suppose 
 the debtor or his representative sue the creditors, is his set-off 
 suspended ? Then how is the defence of impediment to be set 
 up? By plea? That would be contrary to the rule, nemo 
 allegans suam turpitudinem est audiendus. Besides, it would be 
 absurd to suppose that the debtor himself ever would so plead 
 and face the consequences. Then is the fourth solution right ? 
 Nobody ever heard of such a thing ; nobody in any case or book 
 ever suggested it till Mr. Justice Blackburn did as a possibility. 
 Is it left to the court to find it out on the pleading ? If it ap- 
 pears on the trial is the judge to discharge the jury ? How is 
 the Crown to know of it ? There are difficulties, then, in all the 
 possible ways in which one can suppose this impediment to be 
 set up to the prosecution of an action. But, again, suppose it 
 can be, what is the result? It has been held that when the felon 
 is executed for another felony the claim may be maintained. 
 What is to happen when he dies a natural death, when he goes 
 beyond the jurisdiction, when there is a prosecution and an ac- 
 quittal from collusion or carelessness by some prosecutor other 
 
 (s) 1 Bing. N. C. 198.
 
 344 
 
 TORTS AND FELONIES. 
 
 than the party injured ? All these cases create great difficulties 
 to my mind in the application of this alleged law, and go a Ling 
 way to justify Mr. Justice Blackburn's doubt. Still, after the 
 continued expression of opinion, and the cases of Ex parte Elliott 
 (/) and XVellock v. Constantine (w), I should hesitate to say that 
 there is no practical law as alleged by the respondent." 
 Leslie's case. The still more recent case of Ex parte Leslie (x) in itself hardly 
 touches the point. Some bankers allowed a customer to over- 
 draw, on his depositing some acceptances which turned out to be 
 forgeries, and the question was whether they could prove in his 
 subsequent bankruptcy without having prosecuted. "We have 
 been referred," said Jessel, M. R., with whom the rest of the 
 court agreed, "to a line of authorities which seem to show that 
 when a claim arises out of a felony, you cannot sue for it until 
 you have prosecuted the felon, or some one else has prosecuted 
 him, or a prosecution has become impossible. That may or may 
 not he so; I do not wish to discuss that question on the present oc- 
 casion. But, assuming that it is so, the rule has no application 
 to the present case, in which the claim is founded on an inde- 
 pendent contract antecedent to the corrupt bargain." 
 
 It is to be observed that the rule only applies when the action 
 is against the person guilty of the felony. It does not prevent 
 anyone from suing an innocent third party. If somebody has 
 stolen my books and sold them to a bookseller, I may bring an 
 action of trover against the bookseller, though I have not made 
 the faintest attempt at prosecuting the thief {y). 
 
 It is also to be observed that the rule applies only to felonies. 
 For a misdemeanour, such as assault or libel, the aggrieved per- 
 son may bring an action, quite regardless of the fact that the 
 defendant is really a criminal. 
 
 Moreover, an action under Lord Campbell's Act may be 
 brought, "although the death shall have been caused under such 
 circumstances as amount in law to felony" (z). 
 Public There are other cases in which the right of bringing an action 
 
 policy. is restrained on grounds of publicpolicy. Xoaction forinstance, 
 
 lies against a commanding officer for acts done in the ordinary 
 course of military discipline (a). "The salvation of this country,'''' 
 
 Doubt sug- 
 gested by 
 Jessel, XI. I.'., 
 as to exist- 
 ence of rule. 
 
 Action 
 
 against third 
 party. 
 
 Rule does 
 not apply to 
 misdemean- 
 our. 
 
 Campbell's 
 Act. 
 
 (/) 3 Xlont. & A. 110. 
 
 (w) 2 H. & C. 146. 
 
 (*) 20 Ch. Div. 131 ; and see 
 Eoopet?. D'Avigdor, 10 Q. B. D. 
 412, where it was decided that 
 a statement of claim is not de- 
 murrable on the ground that it 
 shows the cause of action to be 
 a felony. 
 
 (y) White v. Spettigue, 13X1. 
 & XV. (»03 ; and see Osborn v. 
 Gillett, L. R. 8 Ex. 88 ; Lee v. 
 Bayes, 18 C. B. 599 ; and Stone 
 
 v. Marsh, G B. & C. 551 ; and 
 see Gimson ». Woodfall, 2 C. & 
 P. 41 ; Quinlan v. Barber, Batty's 
 Irish Rep, 47 ; Crosby v. Leng, 
 12 East, 413 ; Hughes v. Smith, 
 Smith & Batty's Irish Rep. 378. 
 
 (z) 9 & 10 Vict. c. 93, s. 1. 
 
 (a) Johnstone v. Sutton, 1 T. 
 R. 493 ; and see Dawkins v. 
 Rokeby, 4 F. & F. 806 ; Daw- 
 kins v. Paulet, L. R. 5 Q. B. 
 94 ; and Freer r. Marshall, 4 F. 
 &F. 485 ; and see The Midland
 
 PRIVITY. 345 
 
 said the court in Johnstone v. Sutton (6), " depends upon ihe dis- 
 cipline of the fleet. . . . If this action is admitted, every ac- 
 quittal before a court-martial will produce one." 
 
 In the recent case of Appleby v. Franklin (b), a paragraph in 
 a statement of claim which alleged that the defendant after se- 
 ducing the plaintiff administered to her certain noxious drugs 
 for the purpose of procuring abortion, was lately reinstated, when 
 a master had struck it out on the ground that it disclosed a fel- 
 ony tor which the defendant should have been criminally prose- 
 cuted. 
 
 Privity. 
 
 LANG-RIDG-E v. LEVY. [135.] 
 
 [4 M. & W. 337 (1838).] 
 
 Mr. Langridge, senior, walking one day down the 
 streets of Bristol, noticed a gun in a shop window with 
 the following seductive advertisement tied round its 
 muzzle: — 
 
 " Warranted, this elegant hoist gun by Nock, with 
 case complete, made for his late Majesty George IV.; 
 cost 60 guineas; can be had for 25." 
 
 He entered the shop, which was the defendant's, and 
 told him he wanted a nice, quiet, steady-going gun for 
 the use of himself and his sons. Finally, he bought 
 the elegant twist gun as warranted. 
 
 Now, we regret to say, this warranty was false and 
 fraudulent to the defendant's knowledge, and, shortly 
 after the purchase, one of the young Langridges was 
 using the gun in a perfectly fair and sportsmanlike 
 manner, when it burst and blew off his left hand. 
 
 It was this victim of Levy's dishonesty who now 
 brought an action against him, and the chief point re- 
 lied on by the defendant's counsel was that, if any one 
 had a right to bring an action, it was the father, to 
 whom the gun had been sold; as for the son, they said, 
 
 Insurance Co. v. Smith, a fire been prosecuted; and Hurst v. 
 insurance case, where it was Taylor, 14 Q. B. D. 918. 
 decided that the action was (b) Supra. Appleby v. Frank- 
 maintainable in spite of a fel- lin, 54 L. T. Reports, N. S. 
 ony having been the cause of 135; Weekly Notes, 1885, p. 
 action and the felon had not 220,
 
 :;t<; 
 
 PRIVITY. 
 
 False repre- 
 sentation, 
 when action- 
 able. 
 
 Privity not 
 always 
 
 necessary to 
 support an 
 action in 
 tort. 
 
 Poisonous 
 hair-wash. 
 
 there was no privity of contract between him and the 
 gunsmith. This defence, however, did not succeed, 
 and the youthful Langridge got as much consolation as 
 money could give him for the loss of his hand. 
 
 The decision in this case depended so much upon the special 
 circumstances that there can be deduced from it no wider prin- 
 ciple than this, that he who knowingly makes a false statement, 
 intending others to act upon it, is liable for any damage resulting 
 to any one to whom it may have been intended to be communi- 
 cated, and who has in fact acted upon it (c). The decision pro- 
 ceeded upon the ground of the knowledge and fraud of defend- 
 ant (d). 
 
 A particular transaction may sometimes be looked at as afford- 
 ing the right to bring an action either for the breach of contract 
 or in tort. Take, for instance, the too familiar case of a railway 
 disaster caused by the company's negligence: the company are 
 liable to the passenger, in contract, because they gave him a 
 ticket, and in tort, because they were not sufficiently careful in 
 carrying him. In such a case as this there is clearly direct pri- • 
 vity between the plaintift and the defendants. 
 
 But, generally speaking, privity is not necessary to support an 
 action in tort. In Langridge v. Levy the person with whom the 
 contract was made, and with whom alone there was privity, was 
 the father, and yet the son was allowed to bring an action and 
 recover damages. The reason of this is that Levy had been 
 guilty of a tort in making a false representation. If he had 
 made no false representation he would have only been liable to 
 the father for breach of contract. As it w r as, he was held 
 liable to the son, who confided in the representation, and who, 
 he knew, was going to use it. It is to be observed, however, 
 that if the plaintiff had been a friend of the family whose use of 
 the gun was not contemplated by Levy at the time of the sale, 
 no action could have been successfully maintained (e). George 
 v. Skivington (/), where a chemist sold some poisonous hair- 
 wash ior the use of a customer's wife, is a subsequent case ana- 
 logous to Langridge v. Levy, with the substitution (per Cleasby, 
 B.) of negligence for fraud. 
 
 In Blakemore v. Bristol and Exeter Railway Co. (g) the court 
 
 (c) See Pasley v. Freeman, p. 
 312. 
 
 (d) Wiuterbottom v. Wright, 
 10 M. & W. 109; and see Haigh 
 v. Royal Mail Steam Packet 
 Co., 52 L. J., Q. B., 640, C. A.., 
 affirming 52 L. J., Q. B., 39.",; 
 48 L. T. 267; 5 Asp. M. C. 47 
 
 D. ; Hurst v. Taylor, 14 Q. B. 
 D. 918: 54 L. J., Q. B , 310; 33 
 W. R. 582; 49 J. P. 359— D. 
 
 (e) Parry v. Smith, 4 C. P. 
 D. 325 ; but see Collis v. Selden, 
 L. R. 3 C. P. 495. 
 
 (/) L. R. 5 Exch. 1. 
 
 (g) 8 E. & B. 1035.
 
 PRIVITY. 347 
 
 declared that it had always been considered that Langridgc v. 
 Levy was not to be extended in its application. 
 
 The case of Langridgc v. Levy and George*. Skivington must A dangerous 
 be distinguished from Longmeid v. Holliday (h), where a trades- kmip. 
 man, in all honesty, warranted a defective lamp to he sound. The 
 
 lamp exploded and injured a person who was not a privy to the 
 contract, but whose use of the lamp had been contemplated by 
 the seller. This person, it was held, could not maintain an action 
 against him ; not in contract, because the plaintiff was not privy 
 to the warranty ; not in tort, because the defendant, saying only 
 what he believed to be true, was not guilty of any tort. 
 
 And, generally, when a wrong is founded on a contract, no one ^\ T ron <r 
 not a privy to the contract can sue in respect of such wrong. A founded oh 
 master, for instance, who had had nothing to do with the taking contract. 
 of the ticket, and was not in any way a party to the contract, 
 could not sue a railway company for loss of the services of one of 
 his servants as for a breach of their contract with the man to 
 carry him safely (/). But if a railway company contract with a 
 master to carry his servant, and in doing so are guilty of negli- 
 gence, which causes bodily hurt to the servant and consequent 
 damage by loss of service to the master, the company may be Pure tort, 
 sued in contract by the master and in tort by the servant (k). 
 The recent case of Berringer v. Great Eastern Railway Co. (/) de- 
 serves attention . It was an action by a father, a butcher, for 
 loss of the services of his son, who had helped him in the shop. 
 The boy had taken a ticket from the London. Tilbury, and South- 
 end Railway Co., and was injured at Stepney by the negligence 
 of the defendant company. The point was raised for the defence 
 that there was no privity of contract between the plaintiff and 
 the defendants. But the court held that the claim was valid, 
 saying, "The claim is against the company, not parties to the 
 contract of carriage, for a pure tort, such as would be committed 
 if a vehicle in the highway were wrongfully driven against, or 
 across the path of, another vehicle, whereby a servant therein 
 was hurt and his master lost his services." See also the note to 
 Thomas v. Rhymney By. Co., p. 287 ; and read the case of Heaven 
 
 (h) 6 Exch. 761 ; and see also L. J., C. P., 292. 
 
 the important case of Heaven v. (k) Marshall v. York, &c, Ry. 
 
 Pender, 11 Q. B. D. 503 ; 52 L. Co., 11 C. B. 655 ; and see also 
 
 J. Q. B., 702 ; 49 L. T. 357 ; 47 the case of Werderman r. So- 
 
 J. P. 709 C. A., reversing 9 Q. ciete Generate de l'Electricite, 
 
 B. D. 302 ; 51 L. J., Q. B., 465; 19 Ch. D. 246, which wasacase 
 
 47 L. T. 163 ; 30 W. R. 749 ; 47 where a patent was assigned 
 
 J. P. 87 — D. ; and as to liability by the plaintiff to a person who 
 
 for representations, see Barry v. made over the patent to a com- 
 
 Crosskey, 2 J. &H. 23 ; Peck v., pany, who were held liable in 
 
 Gurnev. L. R. 6 H. L. 412. contract to the plaintiff. 
 
 (i) Alton v. Midi. Ry. Co., 34 (I) 4 C. P. D. 163.
 
 348 PRIVITY. 
 
 r. render, cited ante; and see Elliott v. Hall, 15 Q. B. D. 315, injury 
 to servant of vendee ; and Jewson v. Gatti, 1 C. & E. 56'4, L>ay, 
 J., occupier of premises and strangers ; and Norris v. Catmur, 1 
 C. & E. 57G, landlord and sub-tenant. 
 
 Actions against Magistrates. 
 
 [136.] OREPPS v. DURDEN. 
 
 [Cowp. 640 (1777).] 
 
 It was very wrong, of course, of Peter Crepps to be 
 selling hot rolls on a Sunday morning instead of being 
 at church, and as it could not well be called a " work of 
 necessity and charity," it was no doubt a violation of 
 the Act of Charles II. of pious memory. But the Act 
 provides for a fine of 5s. only to be inflicted on the of- 
 fender, and, therefore, that worthy magistrate of West- 
 minster, Mr. Durden, had no business whatever to say 
 that because Crepps had sold four hot rolls he should 
 be fined £1 — that is to say, 5s. a roll. This was dis- 
 tinctly laid down to him by Lord Mansfield : " The pen- 
 alty incurred by this offence is 5s. There is no idea 
 conveyed by the Act that if a tailor sews on the Lord's 
 Day every stitch he takes is a separate offence. 
 There can be but one entire offence on one and the same 
 day." 
 
 Mjjuea i But xn Milnes v. Bale (m) it was held that, where a person has 
 
 Bale. been guilty of several acts of bribery at a municipal election, he 
 
 is liable to a penalty in respect of each such act of bribery. "Va- 
 rious decisions," said Brett, J., " were cited as authorities in fa- 
 vour of the contention that there can be only one penalty. If I 
 understand the effect of these cases rightly, in every case where 
 it was held that there could only be one penalty in respect of 
 several acts, it was because all the acts only constituted one of- 
 fence against which the penalty was enacted. The test, as it 
 
 (m) L. E. 10 C. P. 591. •
 
 ACTIONS AGAINST MAGISTRATES. 34!) 
 
 appears to me is, whether, having charged the offence against 
 which the penalty is enacted, you can prove it by giving in evi- 
 dcncejseveral distinct acts committed by the person charged. It 
 is not strictly accurate to speak of the penalties as cumulative in 
 such a case as the present. The questiou is, whether there is one 
 or more offences, and if the offences are distinct, there is only 
 one penalty for each offence. I cannot find that in any case in 
 which each act done was a complete offence in itself, and in 
 which it would have been inadmissible to give other acts in proof 
 of the committal of the same offence, it was held that several 
 penalties could not be inflicted. In the case of Reg. v. Scott (a), 
 the effect of the decision seems to me to be this: where several 
 oaths are made use of on one occasion it is but one swearing, 
 and consequently there is only one offence, and only one penalty 
 is incurred, though such penalty is cumulative, being at the rate 
 of two shillings for each oath; but if the same set of oaths were 
 used on distinct oecasions, though they all occurred on the same 
 day, there would be several offences, and a penalty would be in- 
 curred for each distinct swearing. There is no decision that if a 
 man swore at one person at one time of the day, and at another 
 person another time, he would not be liable to two penalties. It 
 seems to me that in such a case he would be liable to two penal- 
 ties because there would be two offences. In Garrett v. Messen- 
 ger (o) the offence charged was keeping open an unlicensed house. 
 It is not keeping it open for an hour that is the offence; the offence . 
 is the keeping a house to be used as a house of entertainment 
 without a license which is a comprehensive offence, to be proved 
 by many acts. According to the case of Marks r. Benjamin (p), 
 it is necessary in the case of a charge of this sort to give evidence 
 of more than having the house open for a short period, or in a 
 particular instance. In sucli a case a penalty cannot be imposed 
 for each act, because each act is not a separate offence. So in, 
 Pilcher v. Stafford (q) the ground of the decision was that there, 
 was only one offence, viz., leaving a child unvaccinated for a cer- 
 tain period, and consequently there could only be one penalty. 
 Again, in Crepps v. Burden, the offence contemplated was exer- 
 cising the party's ordinary calling on Sunday. It was not the 
 doing of one isolated act that would be evidence of the com- 
 mittal of the offence, but several acts might be given in evidence- 
 to prove one offence. All these decisions are inapplicable to the 
 present case, because each act of bribery' is a complete offence in 
 itself." 
 
 As to actions against magistrates, the student is referred to 1 1 Actions 
 & 12 Vict. c. 44, "An Act to protect justices of the peace from against 
 vexatious actions for acts done by them in the execution of their ^ us lce! 
 
 (») 4 B. & S. 368. ( p) 5 M. & W. 565. 
 
 (o) Law Rep. 2 C. P. 583. (j)4B. S. 775. 
 
 24 COMMOX LAW.
 
 350 ACTIONS AGAINST MAGISTRATES. 
 
 office" (r). It is sufficient here to point attention to the first two 
 sections of this Act, which provide that if the act complained of 
 was done by the magistrate as to any matter within his jurisdiction, 
 the plaintiff must show that he acted maliciously and without rea- 
 sonable and probable cause, and that if it was done in a matter in 
 which the magistrate had no jurisdiction, or if he exceeded his juris- 
 diction, the plaintiff must show that the conviction or order has 
 been quashed. 
 
 Other sections of this Act specify the time within which the 
 action is to be brought, the notice of action required, the way 
 and effect of tendering amends, &c, and in various other ways 
 the justice of the peace is hedged about and protected against 
 litigious evil-doers. 
 Claim of It may be mentioned that the jurisdiction of justices at petty 
 
 right. sessions is generally ousted if a bond fide claim of right is put 
 
 forward by the defendant. This subject, however, is not suffi- 
 ciently connected with nisi prius to be worth dealing with at any 
 length here; and the reader is referred to the following cases : — 
 Hargreaves v. Diddams, L. R. 10 Q. B. 582; Reg. v. Pearson, 39 
 L. J. M. C. 76; White r. Fox, 49 L. J. M. C. GO; White v. Feast, 
 L. R. 7 Q. B. 353; Denny v. Thwaites, 35 L. T., N. S., G28 ; 
 Reece v. Miller, 8 Q. B. D. 626 ; and Pearce v. Scotcher, 9 Q. 
 B. D. 162; R. v. Young, Ex parte White, 52 L. J. M. C. 55, 47 J. 
 P. 519. 
 
 Notice of Action. 
 
 [137.] ROBERTS v. ORCHARD. 
 
 [2 H. &C. 769 (1864).] 
 
 Mr. Orchard was a draper in Argyle Street, London, 
 and the plaintiff had been one of his shopmen. While 
 so employed, Mr. Orchard suspected him of helping 
 himself to a florin on a certain occasion, and gave him 
 into custody. The magistrates, however, thought there 
 was no evidence against the man, and at once discharged 
 him. This was an action for assault and false imprison- 
 
 (r) See also recent case of Clew v. Hale, W. N. Nov. 25th, 1882.
 
 NOTICE OF ACTION. 351 
 
 merit, and the great question was whether the defend- 
 ant ought to have had notice of action, as provided by 
 24 & 25 Vict. c. 90, s. 113. That Act of Parliament 
 says that any person " found committing" any offence 
 punishablo by virtue of that Act. with the exception of 
 angling in the day-time, may bo immediately appre- 
 hended without a warrant. It was held that it was not 
 sufiicient to entitle the defendant to notice of action 
 that he believed the plaintiff to have dishonestly taken 
 the florin ; he was not entitled to such notice unless he 
 believed that the plaintiff had been "found committing''^ 
 the offence. The proper question to be left to the jury 
 in such a case was — Did the defendant honestly believe 
 in the existence of those facts, which, if they had ex- 
 isted, would have afforded a justification under the 
 statute ? 
 
 A great number of statutes, with the object of protecting per- 
 sons rilling public offices or discharging public duties, require 
 that a month's notice shall be given before an action can be com- 
 menced against them. 
 
 As to the form of the notice, the statute requiring it should in p orm f 
 each instance be consulted. Speaking generally, however it may notice, 
 be said that it is sufficient if it conveys to the mind of the de- 
 fendant reasonable information of what the complaint is. In a 
 recent case a man went to law with a Lancashire Local Board for 
 an injury to his horse, caused by part of the road over which it 
 was being driven suddenly giving way (s). In the notice of ac- 
 tion which, by the Public Health Act, 1848 (11 & 12 Vict. c. 63), 
 he was bound to give, the plaintiff only complained of the de- 
 fendants' non-feasance, whereas he was really suing them for 
 wn'.s-feasance. But it was held that the notice was sufficient in 
 spite of the omission. " The object of a notice of action," said 
 the court, " is to enable a party to tender amends ; and therefore 
 it is sufficient if it states substantially the nature of the com- 
 plaint. In the recent case of Green v. Broad (0 an inaccuracy as inaccurate 
 to the date of arrest in a notice under 24 & 25 Vict. c. 96, s. 113, date, 
 was held to be pardonable, and the judge who had nonsuited in 
 consequence to be wrong. 
 
 In the absence of agreement as to the amount and mode of g ii c jt r 
 payment (it), a solicitor cannot begin an action for his fees till a suing for 
 
 costs. 
 
 (s) Smith v. West Derby Lo- («) See 33 & 34 Vict. c. 28, 
 cal Board. 3 C. P. D. 423. s. 15. 
 
 (0 73 L. T. 141.
 
 352 NOTICE OF ACTION. 
 
 calendar month after he has sent in a signed hill of costs (x). The 
 client, however, to whom an unsigned bill is delivered may waive 
 the want of signature and adopt it [y). 
 
 In Stone v. Hyde it was decided that the notice of action under 
 sec. 7 of the Employers Liability Act, 1880 (43 &44 Vict. c. 42), 
 need not be expressed in strictly technical language ; it is enough 
 if it substantially conveys to the mind of the person to whom it 
 is given, the name and address of the person injured and the 
 cause and the date of the injury. A letter from the plaintiffs 
 solicitor gave only the date of the injury, and stated that the 
 plaintiff was and had, for sometime past, been under treatment 
 at a hospital '''for injury to his leg." This defect iu the notice 
 did not render it invalid (z). 
 
 In Foat v. Mayor, &c, of Margate, it was laid down that in an 
 action for the recovery of land one month's notice need not be 
 given to the local authority, as is the statutory rule in other 
 cases. It being decided that sec. 264 of the Public Health Act 
 1875, does not apply to actions for the recovery of land (a). 
 
 A constable acting under the Contagious Diseases (Animals) 
 Act is not entitled to notice of action, as 1 & 2 Will. IV., c. 41 
 applies only to cases where the authority by which a constable 
 acted was given by the common law or by some statute existing 
 when 1 & 2 Will. IV., c. 41, was passed (6). 
 
 [138.] 
 
 Malicious Prosecution. 
 
 PERRYMAN v. LISTER, 
 [L. R. 4 H. L. 521 (1870).] 
 
 Mr. Lister was the owner of a rifle, which was left 
 under the charge of his coachman, Hinton. One day a 
 man named Perryman happened to call on Hinton, and, 
 
 (x) 6 & 7 Vict., c. 73. s. 37. son v. Musgrave, 9Q. B. D. 386. 
 
 (V) Inre Gedve, 14 Beav. 56; (a) 11 Q. B. D. 299; 52 L. J., 
 
 and Billing v. Coppoek, 16 L.J. Q. B., 711 ; 47 J. P. 535 D. ; and 
 
 Ex. 265, and see Ingle v. Me- see Midland Ry. Co. v. Witning- 
 
 Cutchan, 11 Q. B. D. 518; 53 L. ton Local Board, 11 Q. B. D. 
 
 J., Q. B.. 311; Penley v. An- 788: 52 L. J., Q. B., 689, 49 L. 
 
 struther, 52 L. J. Ch. 367 ; 48 T. 489; 47 J. P. 789 C. A. 
 
 L. T. 664. (b) Bryson v. Russell, 14 Q. 
 
 (z) 9 Q. B. D. 76, and Clark- B. D. 720.
 
 MALICIOUS PROSECUTION. 353 
 
 seeing the rifle, exclaimed what a capital one it was, 
 "and how much he would like to have just such an- 
 other. Not long afterwards the rifle was missed. 
 Hinton reported the loss to his master, and at the 
 same time informed him that one Robinson, the coach- 
 man of a gentleman living in the neighbourhood, had 
 seen it in a barn where Perryman lived, and had asked 
 him what he was doing with Lister's gun; to which 
 Perryman had replied, "It is not Lister's gun; it is my 
 gun;" but that Robinson said he was sure the gun he 
 saw was the one Lister had missed. Hinton added 
 that he had since gone with Robinson to Perryman's 
 and had been shown a gun which was not Lister's, and 
 which Perryman said was the only gun he had. Per- 
 ryman, having been tried and acquitted on the charge 
 of stealing the rifle, now brought an action for false 
 imprisonment. The judge at the trial directed the 
 jury that, as Lister had not seen Robinson before caus- 
 ing Perryman to be arrested, he had acted on hearsay 
 evidence alone, and without "reasonable and probable 
 cause." This, however, was held to be a misdirection, 
 on the ground that Lister had " reasonable and prob- 
 able cause " for instituting a prosecution; and the prin- 
 ciple was distinctly affirmed that it is for the jury to 
 find the facts on which the question of reasonable and 
 probable cause depends, but for the judge to determine 
 whether the facts found do constitute reasonable and 
 probable cause. 
 
 In an action for malicious prosecution the plaintiff must prove Four points, 
 four things: — 
 
 (1.) That the defendant preferred a criminal charge against him j. Theprose- 
 before a judicial officer. cution. 
 
 But if a person, acting conscientiously and like an honest man, 
 comes before a magistrate and makes his complaint, and the 
 magistrate foolishly treats as a felony what is really only a civil 
 matter, and issues his warrant accordingly, the person making Danby v. 
 the complaint is not answerable for the magistrate's mistake (c). Beardsley. 
 
 (c) Leigh v. Webb, 3 Esp. 165; Wyatt v. White, 5 H. & N. 
 371 ; and see Clarke v. Postan, 6 C. & P. 423.
 
 .l.M 
 
 MALICIOUS PROSECUTION. 
 
 2. Malice. 
 
 Subsequent 
 malice. 
 
 3. Reason- 
 able and 
 probable 
 cause. 
 
 I licks v. 
 Faulkner. 
 
 So where a doctor in Lancashire, having missed two pairs of 
 horse clippers from his stables, sent for a policeman, and said, 
 " / haw. had two pairs of clippers stolen from me, and they were last 
 seen in the possession of Danby," whereupon the policeman, having 
 made inquiry, and without communicating with the doctor, ar- 
 rested Danby, who had to appear before the magistrates and was 
 committed for trial, it was held that there was no evidence that 
 the doctor was the prosecutor, and therefore he was not liable in 
 an action for malicious prosecution {d). 
 
 (2.) That the defendant acted, maliciously. 
 
 " In an action of this description the question of malice is an 
 independent one — of fact purely — and altogether for the consid- 
 eration of the jury" (e). But if the defendant acted without 
 reasonable and probable cause, the jury will not generally have 
 much difficulty in arriving at the conclusion of malice. But, on 
 the other hand, it would not do the plaintiff any good to prove 
 malice alone, for a person may be actuated by the bitterest malice 
 and yet have plenty of ground for prosecuting. Malice is proved, 
 for example, by showing that the defendant did not really himself 
 believe in the plaintiff's guilt, or by it appearing that what he 
 really wanted was not to punish crime (as the beautiful theory 
 of our law is that all prosecutors wish primarily to do) (/), but 
 to enforce payment of a, debt (g). A prosecution which is not mali- 
 cious to start with may become so by the prosecutor discovering 
 that the. defendant is really innocent and yet going on with the crim- 
 inal proceedings (/<). 
 
 An action for malicious prosecution will lie against a com- 
 pany (i). 
 
 (3.) That the defendant acted without reasonable and probable 
 cause. 
 
 Whether there was reasonable and probable cause is, when the 
 facts are found, a question of law for the judge. Sir Henry 
 Hawkins, J., has very lucidly summarised the principles on 
 which a judge ought to act in deciding this question in the re- 
 cent case of Hicks v. Faulkner (k), where it was held that, even 
 
 (d) Danby v. Beardsley, 43 
 L. T. 603. 
 
 (e) Per Sir Henry Hawkins 
 in Hicks v. Faulkner, 8 Q. B. 
 D. 167; and see also Harrison 
 v. National Provincial Bank, 
 49 J. P. 390, D. 
 
 (/) For forensic purposes, a 
 great hole is made in a prose- 
 cutor's character by his admis- 
 sion in cross-examination that 
 he was willing to abandon the 
 prosecution on having the value 
 of his stolen goods restored to 
 him. This lofty zeal for the 
 public good, however, which 
 
 judges are pleased to expect, is 
 scarcely understood or appre- 
 ciated by ordinary business 
 men. 
 
 {q) See Hinton v. Heather, 
 14 M. & W. 131; Broad v. Ham, 
 5 Bing. N. C. 722; Heslop v. 
 Chapman, 12 Q. B. 267, and 
 Brooks v. AVarwick, 2 Stark. 
 393. 
 
 (h) FitzJohn v. Mackinder, 9 
 C. B., N. S., 505. 
 
 (i) Edwards v. Midland Ry. 
 Co., 6 Q. B. D. 287. 
 
 (A) 8 Q. B. D. 167.
 
 MALICIOUS PROSECUTION. 355 
 
 though a man might through a defective memory have forgotten 
 a particular occurrence, the recollection of which would have re- 
 strained him from instituting criminal proceedings, still, if it 
 was reasonable under the circumstances that he should trust to 
 his memory, he ought to be excused. Cut the learned knight 
 expressly points out that ''it would be unreasonable to rely either 
 on an informant known to be untrustworthy, or a memory known 
 to be unreliable, icithout express confirmation.'" 
 
 Counsel's opinion is no protection to the defendant who has Counsel's 
 instituted an unfounded and malicious prosecution (/). opinion no 
 
 (4.) That the proceedings terminat"d in (he plaintiff's favour. | Ternfina- 
 
 It may happen, however, that the proceedings were in their tion in plain- 
 nature incapable of terminating in the plaintiff' s favour (e.g., in tifTs favour, 
 the case of a malicious exhibition of articles of the peace), and Articles of 
 in such a case the plaintiff is excused from the proof (;«)• But peace, 
 he will not be excused merely because there is no appeal from a Xo appeal, 
 particular summary conviction of justices, though arrived at Avith 
 the usual intelligence of those functionaries (n). To hold other- 
 wise would be, as Byles, J., said in the case referred to, ''dis- 
 turbing foundations." 
 
 Further, in order to recover damages in an action for malicious Damages 
 prosecution, the plaintiff, must show that he has suffered either 
 in person, reputation, or pocket (o). Every expense properly in- 
 curred in defending himself from the false accusation may be re- 
 covered for [p). General evidence of the plaintiff's bad charac- 
 ter in mitigation of damages can only be given when he is trying 
 to palm himself off on the jury as a highly respectable individ- . 
 
 ual who ought to have extra compensation in consequence of the 
 injury to his formerly untarnished reputation (q). 
 
 An action may be maintained for maliciously causing a man Maliciously 
 to be made bankrupt (r). causing 
 
 Also akin to the action for malicious prosecution is the action bankruptcy, 
 for false imprisonment. False imprisonment is a trespass com- p a ] se j m . 
 mitted by one man against the person of another by unlawfully prisonment. 
 arresting him, and detaining him without any legal authority. 
 The imprisonment need not be by actual touch ; any show of 
 authority or force submitted to is sufficient (s). But the restraint 
 
 (I) Hewlett v. Cruchley, 5 uel, 11 Q. B. 41. 
 Taunt. 277. (q) Rodriquez v. Tadmire, 2 
 
 (m) Steward v. Gromett, 7 C. Esp. 721; Downing r. Butcher, 
 
 B., N. S., 191. 2 M. & Rob. 374; and Cornwall 
 
 (ji) Basebe v. Matthews, L. v. Richardson. Ry. & M. 305. 
 R. 2 C. P. 684. (>•) See Johnson ». Emerson, 
 
 (o) Freeman v. Arkell, 2B. C. L. R. 6 Ex. 329. and Farley v. 
 
 494, and Leith v. Pope, 2 W. Danks, 4 E. & B. 499. 
 Bl. 1326. (s) Grainger v. Hill, 4 Bing. 
 
 (p) Foxall v. Barnett, 2 E. & N. C. 212, and Warner v. Riddi- 
 
 B. 298, and Rowlands r. Sam- ford, 4 C. B., N. S., 206.
 
 :::><; 
 
 MALICIOUS PROSECUTION. 
 
 Maliciously 
 presenting a 
 
 petition. 
 
 Malicious 
 
 prosecution 
 reasonable 
 and probable 
 cause. 
 
 Bankruptcy. 
 
 nrasl be total; it is not falsely imprisoning a man to prevent his 
 going in a particular direction (f). " Tbe distinction between 
 false imprisonment and malicious prosecution," said Willes, J., 
 in Austin v. Dowling (w), " is well illustrated by the case where, 
 parties being before a magistrate, one makes acharge against an- 
 other, whereupon the magistrate orders the person charged to be, 
 taken into custody and detained until tbe matter can be investi- 
 gated. The party making the charge is not liable to an action 
 for false imprisonment, because he does not seta ministerial 
 officer in motion, but a judicial officer. The opinion and judg- 
 ment of a judicial officer are interposed between the charge and 
 the imprisonment." 
 
 An action will lie for falsely and maliciously'and without reason- 
 able and probable cause presenting a petition under the Com- 
 panies Acts, 18G2-1867, to wind up a trading company, even al- 
 though no pecuniary loss or special damage to the company can 
 be proved, for the presentation of the petition is from its very na- 
 ture calculated to injure the credit of the company. At the hear- 
 ing of a plaint in a county court to recover rent (x), the tenant's 
 son was called as a witness and swore that he had given up the 
 key of the premises to the landlord before the rent accrued due. 
 The landlord denied this and subsequently prosecuted the wit- 
 ness for perjury. He was acquitted and'brought an action against 
 the landlord for malicious prosecution. At the trial the plaintiff 
 and defendant repeated their evidence as to the key, and the 
 judge directed the jury alternatively that if they could not ar- 
 rive at a conclusion as to which of the parties was speaking the 
 truth, the plaintiff had not made out his case, and the defendant 
 was entitled to a verdict; and that if they thought the plaintiff 
 did give up the key, but the defendant owing to a defective mem- 
 ory had forgotten the occurrence and went on with the prosecu- 
 tion honestly believing that the plaintiff had sworn falsely and 
 corruptly, then the jury would not be justified in saying that the 
 defendant maliciously, and without reasonable and probable 
 cause, prosecuted the plaintiff, and the defendant would be en- 
 titled to their verdict: — It w T as decided that the direction of the 
 judge was right (y). 
 
 In the Metropolitan Bank r. Pooley (z), it was held that a bank- 
 rupt whose adjudication in bankruptcy has not been set aside 
 cannot maintain an action for maliciously procuring the bank- 
 ruptcy, and such an action may be summarily dismissed upon 
 summons as frivolus and vexatious. 
 
 (0 Bird v. Jones, 7 Q. B. 71:2. 
 
 (m) L. R. 5 C. P. 534; and see 
 also Cahill v. Fitzgibbon, 16 L. 
 E. Ir. 871— Q. B. D. 
 
 (x) Quartz Hill Qold Mining 
 Co. v. Eyre, 11 Q. li. D. 674, 52 
 
 •M W. R. 663. And see 50 L. 
 T. 274 D. 
 
 {>/) Hicks v. Faulkner, 8 Q. 
 B. D. 167. 
 
 {z\ 10 App. Cases 210; 54 L. 
 J. Q. B. 419: 53 L. T. 163; :::; 
 
 L. J., q. li., 488; 40 L. T. 240; W. R. 700,40 J. P. 756 H. L. (E).
 
 MALICIOUS PROSECUTION. 357 
 
 The law with reference to cases of malicious prosecution has Onus of 
 been recently illustrated by Alrath v. North Eastern Railway proof. 
 Company. In this case the following principle was laid down as 
 governing actions for malicious prosecution. The burden of proof 
 as to all the issues arising therein lies upon the plaintiff; and, 
 although the plaintiff proves that he was innocent of the charge 
 laid against him, and although the judge, in order to enable him- 
 self to determine the issue of reasonable and probable cause, leaves 
 subsidiary questions of fact to the jury, nevertheless the onus of 
 proving the existence of such facts as tend to establish the want 
 of reasonable and probable cause on the part of the defendant, 
 rests upon the plaintiff. The plaintiff, a surgeon, had attended 
 one M., for bodily injuries alleged to have been sustained in a 
 collision upon the defendants' railway. II. brought an action 
 against the defendants, which was compromised by the defend- 
 ants paying a large sum for damages and costs. Subsequently, 
 the directors of the defendants' company, having received cer- 
 tain information, caused the statements of certain persons to be 
 taken by a solicitor ; these statements tended to show that the 
 injuries of which M. complained were not caused at the collision, 
 but were produced wilfully by the plaintiff, with the consent of M., 
 for the purpose of defrauding the defendants. These statements 
 were laid before counsel, who advised that there was good ground 
 for prosecuting the plaintiff and M. for conspiracy. The defend- 
 ants accordingly prosecuted the plaintiff, but he was acquitted. 
 In an action for malicious prosecution, the judge directed the jury 
 to find whether the defendants had taken reasonable care to in- 
 form themselves of the true state of the case, and whether they 
 honestly believed the case which they laid before the magistrates ; 
 the jury having answered these questions in the affirmative, the 
 judge entered the judgement for the defendants, and it was held 
 by the Court of Appeal, reversing the decision of the Divisional 
 Court, that the judge had rightly entered the judgement for the 
 defendants (a). 
 
 The judgment of the Court of Appeal has been since upheld by 
 the House of Lords. 
 
 (a) 11 Q. B. D. 440 ; 52 L. J., Q. B., 620 : 49 L. T. 618 ; 32 
 W. R. !58 ; 47 J. P. 692 C. A. Ke versing 11 Q. B. D. 79 ; 52 L. 
 J., Q. B. 352 D.
 
 358 NO CONTRIBUTION BETWEEN DEFTS. IN TORT. 
 
 No Contribution Between Defendants in Tort. 
 
 [139.] MEKRYWEATHBR v. NIXAN. 
 
 [8 T. E. 186 (1799).] 
 
 Merryweather and Nixan destroyed the machinery 
 and injured the mill of a Yorkshireman named Starkey. 
 The mill-owner was not prepared to submit tamely, and 
 brought an action against the pair of them. The jury 
 gave him £840 as damages, and, instead of getting £420 
 from each, he made Merryweather pay the whole £840. 
 Merryweather did not see why he should pay for Nixan's 
 whistle as well as his own, and sued his "pal" for con- 
 tribution, that is to say, for £420. la fairness, of course, 
 Nixan ought to have made no difficulty about paying it; 
 but he steadfastly declined to do anything of the sort. 
 The law backed him up in this refusal, for ex turpi 
 causa non oritur actio. 
 
 No contribu- There is np contribution between defendants in iort. In contract 
 
 tion. there is. If there are two sureties, and one of them is made to 
 
 pay the whole debt, he can sue his brother surety for half of what 
 
 he has paid (b). In such a case there is no lurpis causa. 
 
 ttw.«™+;™ But the rule that one tortfeasor cannot sue another for contri- 
 
 -bxception 
 
 where plain- bution does not extend to the case where the former has acted 
 tiff quite in- quite innocently, and was simply obeying what he believed to be 
 the lawful instructions of his employer. Such a person may claim 
 not merely contribution, but an absolute indemnification. If A. 
 orders B. to drive cattle out of a field, and in obeying the order 
 B. unwittingly commits a trespass, A, must indemnify him ; but 
 it would be different if the order given and obeyed were to punch 
 C.'s head, without rhyme or reason, because B. must have known 
 that A. had no business to tell him to do that (c). 
 
 nocent. 
 
 (6) See Whiteher v. Hall, p. 18. Ad. & E. 57 f and Dixon 
 (c) Pearson v. Skelton, 1 M. Fawcuss, 30 L. J., Q B., 137. 
 & W. 504 ; Betts v. Gibbins, 2
 
 MEASURE OF DAMAGES IN TORT. 359 
 
 When several persons join in committing a tort, the person Each joint 
 injured may select one particular tortfeasor as his victim, and tortfeasor 
 make him pay all the damages. Thus, in an action against the lla,)le ' or 
 huntsman of the Berkeley hounds for destroying fences and in- 
 juring crops, it was held that the defendant, being a co-trespasser 
 was liable for ihc whole of the. damage done, not merely for -what he 
 had individually occasioned (d). 
 
 Judgment recovered against one joint tortfeasor is a bar to an Effect of 
 action against the others for the same cause, although the judg- judgment 
 ment remains unsatisfied (e). against one 
 
 A man for whose benefit a tort is committed may afterwards j e . lS01 . 
 ratify and adopt it (/'). " But to make a man a trespasser by re- Ro+ififtation 
 lation from having ratified and adopted an act to trespass done in f tort. 
 his name and for his benefit, it must be shown that the act was 
 ratified and adopted by him with full knowledge of its being a 
 trespass, or of its being tortious, or it must be shown that in 
 ratifying and taking the benefit of the act he meant to take upon 
 himself, without iuqiury, the risk of any irregularity which might 
 have been committed, and to adopt the transaction, right or 
 wrong" (</). 
 
 Measure of Damages in Tort. 
 
 LUMLEY r. GYE. [140.] 
 
 [2 E. & B. 21G (1853).] 
 
 Mr. Lumley, the lessee and manager of the Queen's 
 Theatre, engaged a fascinating young lady to sing and 
 perform on his boards for a period of three months. 
 During tho three months Mr. Gye, a rival manager, 
 persuaded her to break her engagement, and leave Mr. 
 Lumley ; and it was for this interference that the 
 present action was brought. It was held (in spite of 
 
 (d) Hume r. Oldacre, 1 Stark. & G. 23fi ; and see Hull v. 
 
 352. Piekersgill, 1 B. & B. 282, 
 
 (c) King v. Hoare, 13 M & and Buron v. Denman, 2 Ex. 
 
 W. 504, and Brinsmead v. Har- 167. 
 rison. L. R. 7 C. P. 547. (g) Add Torts, 5th ed., p. 87. 
 
 (/) Wilson v. Tumman, 6 M.
 
 360 
 
 MEASURE OF DAMAGES IX TORT. 
 
 Bowen w. 
 Hall. 
 
 Vicars r. 
 Wilcocks. 
 
 Not too re- 
 mote. 
 
 Looser 
 measure of 
 damages in 
 
 tort than in 
 '■on tract. 
 ►Seduction. 
 
 Assault. 
 
 the dissent of Coleridge, J., who thought thafc such an 
 action could only be brought when the strict relation- 
 ship of master and servant existed) that the action 
 could bo maintained, and damages recovered. 
 
 Lumley v. Gye was followed in the recent case of Bowen v. Hall 
 (/*), Lord Coleridge, C. J., however, with filial reverence, being 
 dissentient. 
 
 Before the leading case was decided, it used to he thought that 
 the damage in respect of which an action was brought must have 
 been the legal consequence of the defendant's act (/). If, for in- 
 stance as the consequence of the defendant's slander, a mob had 
 ducked the plaintiff in a horse-pond, such a consequence would 
 have been an illegal and unnatural consequence of the slander, 
 and could not be taken into account in estimating the compen- 
 sation to be paid by the defendant to the plaintiff. Lumley v. Gye, 
 however, alters this rule by allowing the wrongful act of the 
 third party to form part of the damage where such wrongful act 
 might be naturally contemplated as likely to arise from the 
 defendant's conduct. 
 
 The* damage, however, must not be too remote. Where, for 
 instance, the defendant libelled a public singer, in consequence 
 of which she broke her engagement with the plaintiff, and would 
 not sing, the plaintiff's injury was considered too remote. So it 
 was too, in another case, where the manager of a theatre brought 
 an action against a person who horsewhipped one of his actors 
 so soundly as to prevent him from performing. The cases of 
 Allsop v. Allsop (where a married lady was made ill by the de- 
 fendant's imputing incontinency to her), Ward v. Weeks (where 
 somebody repeated the defendant's slanderous words), and Hoey 
 v. Felton (j) (where a young man missed an engagement through 
 the defendant's falsely imprisoning him), may also be referred 
 to. all being cases in which the damage was held to be too re- 
 mote, and not the direct and immediate result of the defendant's 
 wrongful act. 
 
 The rules by which damages are assessed are much looser in 
 tort than in contract. Juries may generally take into account 
 all the surrounding circumstances, and give damages not so much 
 to compensate the plaintiff as to punish the defendant. Thus, 
 in the action of seduction, which in point of form purports to 
 give a recompense for loss of services, the plaintiff would recover 
 very different damages according to the seducer's social position 
 and the manner in which he had accomplished his purpose. So, 
 
 (/<) 6 Q. B. D. 333. 
 
 (/) See Vicars v. Wilcocks, 8 
 Last. 1. 
 
 ( /) Alsopp v. Alsopp. 5 H. 
 & X. 534 ; 29 L. J. Ex. 315; G 
 Jurist, N. S. 435. Ward v. 
 
 Weeks, 7 Bing. 211 ; 4 M. & P. 
 796. Hoey v. Felton. 11 C. B., 
 N. S. 14-2 ; 8 Jur., N. S. 764; 
 31 L. J.. C. P. 105 ; 5 L. T. 
 354 ; 10 W. R. 78.
 
 MEASURE OF DAMAGES IN TORT. 361 
 
 in .action for assault, the circumstances of time, place, and man- 
 ner should he taken into account ; it is a greater insult to be 
 beaten upon the Royal Exchange than in a private room (7.-). 
 Juries, in fact, have a very wide discretion, and there seems an 
 increasing unwillingness of the courts to interfere with their ver- 
 dicts on the ground of excesshe damages (/). In one case (in), Trespass, 
 where the action waslortrespassingon the plaintiff's land, and the 
 evidence showed that the defendant had made use of very offensive 
 language, the jury returned a verdict for £500 damages and the 
 court refused tj grant a new trial, saying, "Suppose a gentle- 
 man has a paved walk before his window, and a man intrudes, 
 and walks up and down before the window, and remains there 
 after he has been told to go away, and looks in while the owner 
 is at dinner, is the trespasser to be permitted to say, ' Here is a 
 halfpenny ior you, which is the full extent of all the mischief I 
 have done !' Would that be a compensation?" 
 
 In Phillips v. The London and South Western Railway Com- p) r Phillips's 
 pany (n) it was held that, in an action against a railway com- case, 
 pany for personal injuries to a passenger, — in this case a doctor 
 of some eminence, — the jury might take into their consideration, 
 besides the pain and suffering of the plaintiff, and the expense 
 incurred by him for medical and other necessary attendance, the 
 loss he had sustained through his inability to continue a lucra- 
 tive professional practice. 
 
 Where it is evident that the jury have not give proper atten- inadequate 
 tion to all the elements of the plaintiffs claim, a new trial will damages. 
 be granted on the ground that the damages are insufficient (o). 
 
 Before 184G, the surviving relatives of a person whose death 
 had been caused by the negligent or wrongful act of another had 
 no remedy against the wrong-doer, because actio personalis mor- 
 itur cum persona. This hardship was removed by Lord Campbell's Lord Camp- 
 Act (9 & 10 Vict, c. 93) ; and now, when the breadwinner of a bell's Act. 
 family is taken away under such circumstances, those who 
 are likely to be the greatest sufferers may claim compensation 
 (if the deceased himself might have brought an action for per- 
 sonal injuries) from the person wdiose "wrongful act, neglect, 
 or default" has caused the death. "Every such action," the Wives, hus- 
 Act provides, "shall be for the benefit of the wife, husband, hands, 
 parents, and 
 
 (k) " ^4/ra.rinjuiriarestimatur iam facit, velutisi in oculo [vel 
 
 vel ex facto, veluti si quis ab fundamento ?] quis percus- 
 
 alicpio vulneratus fuerit vel fus- serit." Jnst. Inst. Lib. 4, Tit. 4. 
 
 tibus csesus : vel c.r loco, veluti (I) See Lambkin v. S. E. Ry. 
 
 si cui in theatro vel in foro vel Co., 5 App. Ca. 352. 
 
 in conspectu Pra-toris injuria (m) Merest v. Harvey, 5 Taunt, 
 
 facta sit ; vel ex persona, veluti 442. 
 
 si magistratus injuriam passus (n) 5 C. P. D. 280. 
 
 fuerit, . . . Xonnunquam (o) Phillips v. L. and S. W. 
 
 et locus vulniris atrocem injur- Ry. Co., 5 Q. B. D. 78.
 
 302 
 
 MEASURE OF DAMAGES IN TORT. 
 
 Within 12 
 
 months. 
 
 Pecuniary 
 loss only to be 
 
 compensated 
 for. 
 
 Superior 
 education. 
 
 Funeral ex- 
 penses. 
 
 Only one 
 action. 
 
 Policy of in- 
 surance not 
 to be count- 
 ed. 
 
 Damage to 
 
 personal 
 
 estate. 
 
 parent (p), and child (q) of the person whose death shall have 
 been so caused, and shall be brought by and in the name of the 
 executor or administrator." If, however, there is no executor or 
 administrator, or if he does not start the action within six months 
 of the death, it may be brought by those really interested (r). 
 But, in either case, it must be commenced within twelvemonths 
 of the death. In estimating the damages under this Act, the 
 jury must compensate for pecuniary loss alone ; they cannot con- 
 sider the gri(f of those who have lost a dear relative (*). But 
 a reasonable expectation of pecuniary benefit from the continuance 
 of the life may be taken into account. The jury, for instance, 
 may give compensation for the loss of the benefit of a superior 
 education which the children would have received if their father 
 had lived (/). Funeral expenses are not recoverable (u). The 
 amount given is to be divided among the beneficiaries in such 
 shares as the jury shall direct (a-). If the deceased in his life- 
 time recovered damages for the injury done him, his relatives 
 cannot bring another action after he is dead (?/). But if a man 
 has been fraudulently induced to accept a sum of money and 
 sign a release by deed — by being told, for instance, that his in- 
 juries are of a very trifling nature, and that if he got worse, he 
 could claim fresh damages — in that case he (or if he died, his 
 representatives) could maintain a subsequent action (z). 
 
 A policy of insurance which a person injured may have effected 
 is not to be taken into account against him in settling the dam- 
 ages (a) ; but if the insurance money covers the whole conse- 
 quences of the injury, he is a trustee for the insurers of the money 
 he receives from the defendants (b). 
 
 In Bradshaw v. The Lancashire and Yorkshire Railway Com- 
 pany (c) it was held that where a passenger on a railway was in- 
 jured, and after an interval died in consequence, his executrix 
 might recover in an action for breach of contract against the defen- 
 dants the damage to his personal estate arising in his lifetime 
 
 (p) See Hetherington v. N. 
 Ry. Co.. 9 Q. B. D. 160. 
 
 (q) "'Child" includes a achild 
 en venire sa mere, but not a ille- 
 gitimate child. 
 
 (r) 27&28 Vict. c. 9.", s. 1. 
 
 (s) Blake v. Midland Rv. Co., 
 18 Q. B. 93. 
 
 (I) Pym v. G. N. Ry. Co. 4B. 
 & S. 396. 
 
 (m) Dalton v. S. E. Ry. Co., 
 27 L.J., C. P. 227. 
 
 (.') Sec. 2 ; and see Springett 
 v. Balls. 7 B. & C. 477. 
 
 (y Read v. G. E. Rv. Co., L. 
 R. 3 Q. B. 555. 
 
 (z) Hirschfield v. London, 
 Brighton and S. Coast Ry. Co., 
 2Q. B. D. 1. 
 
 (a) Bradburn v. G. W. Ry. 
 Co., L. R. 10 Ex. 1. 
 
 (b) See Randall v. Cockman, 
 1 Ves. Sen. 97 ; Simpson r. 
 Thompson, 3 App. Ca. 279; and 
 Clark v. Blything, 2 B. &C.254 ; 
 and see Bulmer v. Buhner. 25 
 Ch. D. 409 ; 53 L. J. Chan. 402, 
 32 W. R. 380 Chitty, J. 
 
 (c) L. R. IOC. P. 180; and 
 see Leggott v. G. N. Ry. Co., 1 
 Q. B. D. 599, and Potter v. Met. 
 Dist. Ry. Co., 30 L. T. 765.
 
 HEARSAY EVIDENCE. 363 
 
 from medical expenses and loss occasioned by his inability to at- 
 tend to business. But if the action were in tori (as where the de- 
 ceased was run over at a level crossing) such a claim could not be 
 supported (d). 
 
 The 25th section of the Regulation of Railways Act, 1868 (c), Arbitration, 
 provides for the reference to arbitration of any claim for dam- 
 ages in respect of injuries or death, if the parties are agreed. On 
 joint application in writing to the Board of Trade, an arbitrator 
 will be appointed, with power to determine the compensation, if 
 any, to be paid. 
 
 Hearsay. 
 
 DOE (1. DIDSBTJRY v. THOMAS. [141.] 
 
 [14 East, 323 (1811).] 
 
 In this case a lady named Ann Didsbury brought an 
 action of ejectment for a farm of thirty- five acres, called 
 the Meadow Farm at Tideswell in Derbyshire. She 
 claimed it under the will of a Mr. Samuel White, who 
 had died some time before. The will was dated November 
 26th, 1754, and the chief obstacle to Ann's success was to 
 prove that the lands were the testator's at that time. In 
 support of her case she called a witness who swore that 
 the farm in question, together with another farm called 
 Foxlow's Croft, was reputed to have been Sir John Stat- 
 ham's, and to have been purchased at the same time with 
 it by Samuel White of Sir John. That of course alone 
 did not fix any particular date. But to supplement this 
 evidence, and make it Berve the good woman's cause, a 
 deed was produced dated March 25th, 1752, whereby in 
 consideration of natural love and affection old Samuel 
 White bargained and enfeoffed his son Edward of Fox- 
 low's Croft, " all which said farm, &c, have been lately 
 
 [d) Pulling v. G. E. Ky. Co., (e) 31 & 32 Vict. c. 119. 
 
 9 Q. B. D. 110.
 
 364 HEARSAY EVIDENCE. 
 
 purchased amongst other lands and hereditaments by the 
 said Samuel White of and from Sir John Statham." 
 
 It was clearly proved that Richard, the testator's eldest 
 son, had taken possession of and occupied the Meadow 
 Farm at the same time that his younger brother Ned had 
 begun to occupy Foxlow's Croft ; and also that the per- 
 son immediately preceding Richard in the occupation 
 of the Meadow Farm was tenant to Sir John: and the 
 plaintiff's counsel argued that under the circumstances 
 the evidence of reputation could be received. It was 
 held, however that the evidence could not be received, 
 as reputation is not admissible in questions of private 
 right. 
 
 The reasons generally given why what another man said is not 
 evidence are that he was not on his oath when he said it, and that 
 he cannot be cross-examined. But the real principle of the exclu- 
 sion would seem to be, that " all second-handed evidence, whether 
 of the contents of a document or of the language of a third person, 
 which is not connected by responsible testimony with the party 
 against whom it is offered, is to be rejected" (/). 
 
 The chief exceptions to the rule that "hearsay is not evidence" 
 are the following : — 
 
 1. Hearsay is admissible respecting matters of public and general 
 interest, such as the boundaries of counties or parishes, claims of 
 highway. &c. The reason for the exception in this case is that the 
 origin of such rights is generally obscure and incapable of better 
 proof, that people living in the district are naturally interested 
 in local matters and likely to know about them, and that reputa- 
 tion cannot well exist without the concurrence of many persons 
 who are strangers to one another and yet equally interested. Such 
 Ante litem declarations, however, to be evidence must have been made ante 
 motam. litem motam, that is, before any dispute on the subject has arisen; 
 
 although they do not become inadmissible because they were made 
 Particular with a view of preventing the dispute from arising (g). They 
 facts not ad- must also be confined to general matters, and not touch the particular 
 missible. facts from which the general right or interest is to be inferred. 
 "Thus, if the question be whether a road be public or private, 
 declarations by old persons, since dead, that they have seen repairs 
 done upon it will not be admissible ; neither can evidence be re- 
 ceived that a deceased person planted a tree near the road, and 
 
 (/) Best on Evidence, p. C29. (g) Berkeley Peerage case, 4 
 
 Cam. 401.
 
 HEARSAY RVIDENCE. 365 
 
 stated at the time of planting it that his object was to show- 
 where the boundary of the road was when he was a boy (A). So, 
 proof of old persons having been heard to say that a stone was 
 erected, or hoys whipped, or cakes distributed, at a particular place, 
 will not be admissible evidence of boundary ; and where the 
 question was whether a turnpike stood within the limits of a 
 town, though evidence of reputation was received to show that 
 the town extended to a certain point, yet declarations by old 
 people, since dead, that formerly Ik>hs<x stood where none any 
 longer remained were rejected, on the ground that these state- 
 ments were evidence of a particular fact " (i). 
 
 As the leading case shows, evidence of this kind is not admis- Questions of 
 sible on questions of private right. In a case in which the ques- private right. 
 tion was who had the right to appoint to the head-mastership of 
 Skipton-in-Craven grammar-school, an old man of eighty years 
 was produced to prove the tradition he had received from his an- 
 cestors as to the mode of election in their time, but the evidence 
 was rejected on the ground that the question in dispute was one 
 of private right (k). Similar evidence was rejected in a case (?) 
 where the question was whether the sheriff of a county (Cheshire) 
 or the corporation of the county town were charged with the duty 
 of executing criminals. An ex officio information was filed by 
 the Attorney-General against the High Sheriff for not having ex- 
 ecuted some murderers ; and the chief witness for the Crown 
 was the Clerk of Assize. In cross-examination he was asked 
 whether he had not heard it reported amongst old persons in 
 Chester that the corporation were bound to execute. But the 
 clerk's evidence on this point was not allow r ed to be given. 
 "This,"' said Littledale, J., "is a private question, whether the 
 sheriffs of the county or the city are to perform a duty. The cit- 
 izens of Chester may, perhaps, have a particular interest ; and 
 how r do we know 7 that there may not be a grant of felons' goods 
 to them? However this matter may be, the question is imma- 
 terial to the public." 
 
 It seems to be a doubtful point whetherevidenceof reputation 
 can be given to prove or disprove a private prescriptive right or 
 liability in which the public is interested. Such evidence, how- 
 ever, was admitted in a case in which the inhabitantsof a county, 
 being indicted for non-repair of a public bridge, pleaded that 
 certain specified persons were bound ratione tenurse to repair 
 it (m). 
 
 It is, too, a well established rule of law that public documents puhii c 
 are admissible for certain purposes, where they have been made documents. 
 
 (h) R. v. Bliss, 7 A. & E. Esp. 3-23. 
 
 550. (/) R. v. Antrobus, 2 A. & E. 
 
 (?') Tavlor on Evidence, vol. 788. 
 
 i., p. 526. (m) E. v. Bedfordshire, 4 E. & 
 
 (k) Withnell v. Gartham, 1 B. 541. 
 
 25 COMMON LAW.
 
 366 
 
 HEARSAY EVIDENCE. 
 
 after public enquiry by a public officer. The word " public " is 
 utit to be taken in the sense of meaning the whole world. "I 
 think," says Lord Blackburn (n), "an entry in the books of a 
 manor is public in the sense that it concerns all the people inter- 
 ested in the manor. And an entry probably in a corporation 
 book concerning a corporate matter, or something in which all 
 the corporation is concerned, would be ' public ' within that 
 sense. But it must be a public document, and it must be made 
 by a public officer. I understand a public document to mean a 
 • document that is made for the purpose of the public making use 
 
 of it, and being able to refer to it. It is meant to be where there 
 is a judicial, or quasi-judicial, duty to inquire." 
 
 Pedigree. ~- Hearsay is admissible in matters of pedigree, where the ped- 
 
 igree to which the declarations relate is directly in issue. 
 
 "The question is, which of three sons (Fortunatus, Stephanus, 
 and Achaicus) born at a birth is the eldest. 
 
 "The fact that the father said that Achaicus was the young- 
 est, and he took their names from St. Paul's Epistles (see 1 Cor. 
 xvi. 17), and the fact that a relation present at the birth said 
 that she tied a string round the second child's arm to distinguish 
 it, are relevant" (o). 
 
 Such declarations, together with inscriptions on tombstones, 
 entries in family bibles, and the like, are admissible on the prin-, 
 ciple that they are the natural effusions of a person who must 
 know the truth, and has no motive for misrepresenting it. As 
 in the last case, the declarations must have been made ante litem 
 motam; and it is now settled that the persons making them must 
 have been, not merely servants, friends, or neighbors, but mem- 
 bers of the family (p). 
 
 And such statements by deceased members of the family may 
 be proved, not only by showing that they actually made the 
 statements, but by showing that they acted upon them, or as- 
 sented to them, or did anything that amounted to showing that 
 they recognised them (q). 
 
 Ancient "^ Hearsay is admissible in favour of ancient documents when 
 
 documents, tendered in support of ancient possession. 
 
 " The proof of ancient possession," said Willes, J., in a dis- 
 puted fishery case (r) , "is always attended with difficulty. Time 
 has removed the witnesses who could prove acts of ownership of 
 their personal knowledge, and resort must necessarily be had to 
 
 n Sturla v. Freccia, L. R. 5 (p) Shrewsbury Peerage case, 
 
 App. Ca. at p. 643. 
 
 Stephen on evidence, p. 
 41; and see Haines v. Guthrie, 
 13 Q. B. D. 818, 53 L. J., Q. 
 B., 521, 51 L. T. 645, 33 W. R. 
 99, 48 J. P. 756 C. A. 
 
 7 H. L. Ca. 26. 
 
 (q) per Blackburn, L. J., in 
 Sturla v. Freccia, supra, at p. 
 641. 
 
 (r) Malcolrnson v. O'Dea, 10 
 H. L. Ca. 593.
 
 HEARSAY EVIDENCE. , 367 
 
 written evidence. In somo cases written statements of title are 
 admitted even when they amount to mere assertion, as in the 
 case of a right affecting the public generally ; but the entry now 
 under consideration is admissible according to a rule equally ap- 
 plicable to a fishery in a private pond as to one in a public navi- 
 gable river. That rule is, that ancient documents coming outof 
 proper custody, and purporting upon the face of them to show 
 exercise of ownership, such as a lease or a licence, may be given 
 in evidence without proof of possession or payment of rent under 
 them as being in themselves acts of ownership and proof ol pos- 
 session. This rule is sometimes stated with the qualification, 
 provided that possession is proved to have followed similar docu- 
 ments, or that there is some proof of actual enjoyment in accord- 
 ance with the title to which the documents relate. And cer- 
 tainly in the case of property allowing of continuous enjoyment, 
 without proof of actual exercise of the right, any number of mere 
 pieces of paper or parchment purporting to be leases or licences 
 ought to be of no avail. It may be a question whether the ab- 
 sence of proof of enjoyment consistent with such documents goes 
 to the admissibility or only to the weight of the evidence ; proba- 
 bly the latter." 
 
 Mr. Justice Stephen in his " Digest" does not place this class 
 of evidence as an exception to the rule excluding hearsay, but 
 gives the effect of it separately, thus - "Where the existence of 
 any right of property, or of any right over property, is in ques- 
 tion, every fact which constitutes the title of the person claiming 
 the right, or which shows that he, or any person through whom 
 he claims, was in possession of the property, and every fact which 
 constitutes an exercise of the right, or which shows that its exer- 
 cise was disputed, or which is inconsistent with its existence, or 
 renders its existence improbable, is relevant. 
 
 " Illustrations. — (a.) The question is whether A. has a right of 
 fishery in a river. An ancient inquisitio post mortem, finding the 
 existence of a right of fishery in A.'s ancestors, licences to fish 
 granted by his ancestors, and the fact that the licencees fished 
 under them, are deemed to be relevant (s). 
 
 " (b.) The question is whether A. owns land. The fact that 
 A.'s ancestors granted leases of it is deemed to be revelant " (/). 
 
 Documents more than thirty years old are presumed to be in 
 the handwriting of the persons who purport to have written 
 them, provided they are produced from such custody as the judge 
 considers proper. 
 
 4. Hearsay is admissible in favour of declarations made by per- Entries 
 sons since deceased against their interest. against in- 
 
 . terest. 
 
 (s) Rogers t>. Allen, 1 Camp. (/) Doe v. Pullman, 3 Q. B. 
 309. 622.
 
 368 
 
 HEARSAY EVIDENCE 
 
 Entries in 
 coarse <>i' 
 business 
 
 Dying decla 
 rations. 
 
 Character. 
 
 Sheen r. 
 Bumpstead. 
 
 On this subject see Higham v. Ridgway, p. 369. 
 
 5. Also in favour of declarations made by such persons in the 
 ordinary courst of i/k ■•//• business. 
 
 On this subjecl see I'riee v. Torrington, p. 369. 
 
 6. Hearsay is admissible sometimes in favour of dying declara- 
 tions. 
 
 This, however, is confined to criminal law. And even then a 
 dying declaration is only admitted when the death of the person 
 making the declaration is the subject of the charge, and the cir- 
 cumstances of the death the subject of the dying declaration. 
 This may sound a hibernianism, but a little thought will con- 
 vince the student that it is not. The declaration, too, must be 
 made when the declarant has no hope of recovery and is in actual 
 danger of death. 
 
 7. In criminal cases, evidence is admissible to show that the 
 accused bears a good character. 
 
 Counsel defending prisoners sometimes ask a witness to char- 
 acter " Do you believe the prisoner to be an honest man ? " Such 
 a question is, however, irregular- it is not the belief of the wit- 
 ness that is admissible in evidence, but the general reputation 
 borne by the prisoner amongst his neighbors. 
 
 So, too, in a civil action evidence of character may become 
 relevant. Thus, in one case (u), a Yarmouth grocer named Wat- 
 son wanted some cheese ; so he wrote to a cheese-factor at Leices- 
 ter asking for some, and said another Yarmouth grocer named 
 Bumpstead would answer for him. On receiving this applica- 
 tion the cheese-factor wrote to Bumpstead, and asked him about 
 Watson. Bumpstead replied that to the best of his knowledge 
 Watson was a trustworthy person. Watson turned out an un- 
 satisfactory customer, and the cheese-factor went to law with 
 Bumpstead for a fraudulent misrepresentation. In defence, 
 Bumpstead called a witness who was asked by the defendant's 
 counsel, " Was Watson on the 24th of October. 1860, trustworthy 
 to your belief?" The question was held admissible, as tending 
 to show that Bumpstead made the representation in good faith. 
 Bramwell, B., however, dissented on the ground that the ques- 
 tion was one as to the witness's belief, and not as to Watson's 
 reputation ; and see the recent case of Scott v. Sampson, ol L. J. 
 Q. B. 380. 
 
 8. Spoken words may. too, sometimes become admissible as 
 forming part of the transaction, or, as it is technically called, as 
 part of the res gestae,. 
 
 Exclamations at the time of an assault, for instance, can be 
 given in a subsequent action In a rape prosecution, one of the 
 most important witnesses is usually the woman to whom the girl 
 complained. This woman can be asked, " Did she make a com- 
 
 (m) Sheen v. Bumpstead, 2 H. & C. 193.
 
 DECLARATIONS OF DECEASED PERSONS. 369 
 
 plaint to you?" but counsel is not generally allowed to go further 
 and ask, "What did she complain of ? " as what she said then 
 was not part of the rex gcstx. 
 
 Declarations by Persons since Deceased. ■ 
 
 PRICE v. TORRINGTON. [142.] 
 
 [1 Salk. 285 (1703).] 
 
 This was an action by a brewer against a noble lord 
 for beer which his household had drunk. The practice 
 at the plaintiff's brewery was for the draymen who had 
 taken out beer during the day to sign their names in a 
 book kept for the purpose before they went home. The 
 particular drayman who had taken Lord Torrington 
 his beer was dead, but he had duly made his entry,and 
 the question was whether it was admissible evidence 
 for the plaintiff. It was held that it was, on the ground 
 that it was an entry made by a disinterested person in 
 the ordinary course of his business. 
 
 HIGHAM v. RIDGWAY. [143,] 
 
 [10 East, 109 (1808).] 
 
 When was William Fowden born ? On the answer 
 to this question depended large estates in the county 
 of Chester. Elizabeth Higharn laid claim to them by 
 virtue of a certain remainder ; but those who contested 
 her right said that her remainder had been barred by 
 a recovery suffered on April 16th, 1789, by one Wil-
 
 370 DECLARATIONS OP DECEASED PERSONS. 
 
 Ham Fowden, since deceased. Mrs. Higham's answer 
 to this was that on the the day named William Fowden 
 had not yet come of age, and was therefore incapable 
 of suffering recoveries and barring remainders. So it 
 was that it was strenuously disputed on which side of 
 April 16th, 1768, the late Mr. Fowden had beeu born. 
 Was he or was he not of age on April 16th, 1789 ? It 
 was of course the object of Mrs. Higham to make out 
 that he was born later than April 16th ; and -the most 
 important piece of evidence she adduced in support of 
 that view was an entry in the diary of a man-midwife 
 who, like Fowden, had long since joined the majority. 
 In that diary, under the head of April 22nd, 1768, 
 there was this important entry : — 
 
 "W. Fowden, jun.'s, wife, 
 "Filius circa hor. 3 post merid. natus H. 
 "W. Fowden, jun., 
 
 "Ap. 22, nlius natus 
 "Wife, £1 6s. Id 
 "Paid, 25 Oct. 1768." 
 
 This entry was admitted in evidence on the ground 
 that it was a declaration against interest, the law 
 shrewdly suspecting that no one would put himself 
 down as paid when he had not been. 
 
 These two cases establish that statements made by deceased 
 persons are admissible in evidence when they were made in the 
 usual course and routine of business, or when they were made 
 against the interest of the declarant. In order that a statement 
 may be admissible as falling within the first of these two classes, 
 Four con- it must satisfy four conditions (x) : ''(1.) That it is an entry of 
 ditions. a transaction effected or done by the person who makes the entry, 
 
 (2.) that it is an entry made at the time of such transaction or 
 near to it, (3. ) that it is made in the usual course and routine of 
 business by that person, and (4.) that he was at that time a per- 
 son who had no interest to mis-state what had occurred," More- 
 over, the student must carefully notice that when the entry is 
 admissible as having been made in the ordinary course of the 
 
 (x) Per Brett, L. J., in Polini v. Gray, L. J. 49 C'h. at p. 49.
 
 DECLARATIONS OF DECEASED PERSONS. 371 
 
 deceased person's business, only so much of the entry as it was the Extra infor- 
 vui «'.-■ duly to make it admissible; any other fact which happens mation. 
 to be stated in the entry, no matter how naturally it occurs, is 
 excluded. Thus, in one well-known case (y) it became necessary Place of 
 to show that a person had been arrested in South Molton Street, arrest. 
 The officer who arrested him had died since the arrest, but it was 
 proposed to put in evidence a certificate made by him at the 
 time of the arrest, which specified, with other circumstances, (he 
 place of the arrest. It was held, however, that although the cer- 
 tificate would have been admissible to establish the fact of the 
 arrest, it could not be accepted in evidence to show where the 
 arrest had taken place, inasmuch as the duty of the officer was to 
 annex to the writ a certificate stating merely the fact of the ar- 
 rest, and not the particulars attending it. 
 
 A different rule, however, prevails as to entries admissible by 
 reason of being contrary to interest. Not only is the entry al- 
 lowed to prove the particular fact which is against the writer's 
 interest (e. g., that he has been paid), but any other facts which 
 may happen to be stated in the entry. It will be seen that, if 
 this had not been so, Mrs. Highani would not have been able to 
 prove by the entry produced the date of Mr. Fowden's birth, for 
 the only part of that entry which was contrary to interest was 
 the acknowledgement of payment, and that fact, however inter- 
 esting, would scarcely have aided the good woman's contention. 
 
 The word interest in the expression "contrary to interest" re- Meaning of 
 fers exclusively to pecuniary ox proprietary interest. An entry "interest." 
 (z), for instance, by a deceased clergyman to the effect that he 
 had performed a certain marriage was not allowed to be given in 
 evidence to prove the marriage merely because the marriage had 
 been performed under circumstances which would have rendered 
 the officiating clergyman liable to a criminal prosecution. Pro- 
 vided, however, that a pecuniary interest in fact exists, the 
 courts are not critical in weighing the amount of it. 
 
 In a recent case (a), an action for indemnity in respect of cer- Massey v. 
 tain shares purchased in the name of the plaintiff as trustee, the Allen, 
 plaintiff sought to prove that the shares were purchased for one 
 of the defendants by his stockbroker. To establish this the 
 plaintiff tendered in evidence an entry made by the stockbroker, 
 who had died before the trial, in his day-book. The entry was, 
 however, ruled to be inadmissible, because it might, according 
 to the turn of the market, have proved available for the advantage 
 of the stockbroker as well as against him. Nor was the entry al- 
 lowed to be received on the ground that it had been made In the 
 
 (y) Chambers v. Bernasconi, C. & F. 108. 
 1 C. M. & R. 347. (a) Massey v. Allen, L.J. 49 
 
 (z) Sussex Peerage case, 11 Ch. 76.
 
 372 DECLARATIONS OF DECEASED PERSONS. 
 
 ordinary course of business, and for this reason: the entry was 
 not made by the broker in the discharge of any duty by him.- The 
 day-book in which the entry was made was kept by the broker 
 simply for his own convenience. 
 
 It appears to be a moot point whether a declaration is admis- 
 sible as contrary to interest when it is the only evidence of the 
 charge of which it shows the subsequent payment (b). 
 Admissions The statements of persons in possession of land explanatory of 
 by persons in the character of their posssession are, if made in disparagement 
 possession of f the declarant's title, good evidence. But the declarations of 
 owners who have a limited interest in the property will not avail 
 against reversioners or remaindermen (c). 
 
 Verbal dec- The student will understand that not only are the written en- 
 larations. tries of a deceased person admissible, but also his verbal declara- 
 tions, when made under circumstances which satisfy the requisite 
 conditions. As the late Lord Justice Thesiger observed (7/)," The 
 principle upon which written entries of a deceased person are ad- 
 missible in evidence is this, that, in the interests of justice, where a 
 person who might have proved important material facts in an ac- 
 tion is dead, his statements before death — I pass over for the 
 moment whether in writing or verbal — relating to that fact are 
 admissible, provided there is a sufficient guarantee that the 
 statements made by him were true. It is considered, and pro- 
 perly considered, that where the statements made by a person 
 were statements against his interest, those statements, at all 
 events in the general run of cases, would probably be true. 
 Now, is there any reason in principle why there should be a dis- 
 tinction made between the written entries of such a deceased 
 person under such circumstances and his verbal declarations? I 
 can see no reason. When the statements* are merely verbal, 
 there is every reason for watching more carefully the evidence 
 by which those declarations are proved ; but provided you are 
 satisfied the declarations were in fact made, there is no reason 
 wdiatever why there should be any distinction between the ad- 
 missibility of the verbal declarations and the admissibility of 
 the written entries." 
 
 It was the practice that the proceedings of the Provost and 
 Fellows of King's College, Cambridge, should be entered in a 
 book and that the entries should be signed by the registrar of 
 the college, who was a notary public, and who signed the entries 
 in that character. One or two of the entries were not so signed. 
 It was decided that an unsigned entry was not admissible in 
 
 ib) Doe i' Vowles, 1 Mo. & B. 341; Crease v. Barrett. 1 C. 
 
 Bob. 261; R. v. Heyford, 2 S. M. & R. 917. 
 L. C. (d) Bewley v. Atkinson, L. 
 
 (e) R. v. Exeter, L. R. 4 Q. J. 49 Ch. at p. 160.
 
 GIFT. 373 
 
 evidence, notwithstanding thai it was proved to he in the hand- 
 writing of the person who usually made the entries at the time 
 when it was made(e). 
 
 F. was tenant to C. with a promise of a lease foT twenty-one 
 years from September, 1851, to September, 1872, at the rent of 
 £8-1 1 (is. Afterwards C. entered F.'s name in his rent hookas 
 the tenant of 128 acres at 16s. an acre,- at yearlyrentof £102 8s.. 
 less l' 1 for county cess £ l J8 S.s. " Tenure thirty-one years from 
 September, 1872, at rent of 16s. per acre, allowed £4 for county 
 cess."' The entry was in C.'s handwriting: — Held that it was 
 admissible in evidence as a statement against the proprietary 
 and pecuniary interest of C. (/). 
 
 Neither proof of an entry made by a deceased person in the or- 
 dinary course of business in a postage hook of a letter to be posted 
 nor proof of possession by the deceased person for the purpose of 
 posting, is sufficient evidence of posting (g). And consult the 
 recent cases of Newbould v. Smith, 29 Ch. I).. 882, 53 L. T. 137, 
 33 W. R. 690, North, J. Edwards, Ex parte, Tollemache, In Re, 
 14 Q. B. D. 415— C. A. Revell, Ex parte, Tollemache, In Re, 13 
 Q. B. D. 720 ; 54 L. J., Q. B. 89, 51 L. T. 376 ; 33 W. R. 288— 
 C. A. Turner, In Re, Glenister v. Harding 29 Ch. D. 985, 53 L. 
 T. 528, Chitty, J. The Lovat Peerage, 10 App. Cases, 763, H. 
 L., Sc. 
 
 Gift. 
 
 IRONS v. SMALL.PIECE. [144.] 
 
 [2 B. & Ali>. 551 (1819).] 
 
 Twelve months before his death, and while he be- 
 lieved himself to be still in the prime of life, Mr. Irons, 
 by word of month, made his son a present of a pair of 
 horses. The horses, however, were not delivered over 
 by the donor to the donee, but remained in the father's 
 
 (e) Fox v. Bearblock. 17 Ch. (g) Rowlands p. De Vecci, 1 
 
 D. 429; and see Dysart Peerage C. & E. 1<>, Day, J., and see 
 
 Case. 6 App. Cases, 489. D (Ids i> Tuke, 25 Ch. D. 617 : 
 
 (/) Conner v. Fitzgerald, 11 5.! L. Ch. 598 : 50 L. T. 320 ; 32 
 
 L. R. Ir. 106— V.-C. W. R. 121. V.-C. B.
 
 374 
 
 GIFTS. 
 
 l. p., 
 
 seal. 
 
 under 
 
 possession until his death; and this was an action by 
 the son, after the old gentleman's death, to obtain pos- 
 session of them. In this attempt, however, he failed, 
 on the ground that " by the law of England, there must 
 either be a deed or instrument of gift, or there must be 
 an actual delivery of the thing to the donee." 
 
 Importance 
 of delivery. 
 
 Declaration 
 of trust. . 
 
 Giving 
 cheques to 
 
 babies. 
 
 Gift to per- 
 son in fidu- 
 ciary relation 
 presumed to 
 
 have 
 
 And it is said that the necessity for delivery is no.t dispensed 
 with though the chattel is already in the possession of the donee (A). 
 
 But, even where there is neither deed nor delivery, if the donor 
 declares that he retains possession in trust for the donee, equity 
 will enforce the trust. But the declaration must be pretty clear. 
 A father once put a cheque for £900 into the hand of his son of 
 nine months old, saying, '' Look you here, I give this to baby; it is 
 for himself, and I am going to put it away for him, and will give him 
 a great deal more along with it. " "Don't let him tear it," re- 
 marked the grey mare. "Never mind if he does," sharply re- 
 plied her lord, " it is his own, and he may do what he likes with it. 
 Now, Lizzie," — this to the nurse — " I am going to put this away 
 for my own son." Then the fond parent took the cheque away 
 from the unappreciative infant, and locked it away in an iron 
 safe. A week afterwards, meeting his solicitor, he said, " I shall 
 come to your office on Monday to alter my will, that I may take 
 care of my son." The same day — such is life !— he died, and the 
 cheque was found amongst his effects. It was held that, though 
 a parol declaration of trust in favour of a volunteer may he valid, 
 there had under the circumstances been no gift to, or valid decla- 
 tion of trust for, the son (i). "It was all quite natural," re- 
 marked Lord Cran worth, L.C., "but the testator would have 
 been very much surprised if he had been told that he had parted 
 with the £900, and could no longer dispose of it. It all turns 
 upon the facts, which do not lead me to the conclusion that the 
 testator meant to deprive himself of all property in the note, or 
 to declare himself a trustee of the money for the child." 
 
 "When a fiduciary or confidential relation exists between the 
 donor and the donee, there is presumption that undue influence 
 has been exercised by the donee, and the onus lies on him of show- 
 ing that the transaction is one that can be supported. Thus, a do- 
 nation from achild to a parent (k), or fromaward to a guardian I /), 
 
 (A) Shower v. Pilch, 4 Ex. 478. 
 
 (i) Jones v. Lock, 1 Ch. App. 
 25; and see Ellison v. Ellison, 
 6 Ves. 656 ; Ex parte Pye, 18 
 Ves. 140; and Donaldson v. 
 Donaldson. Kay, 711. 
 
 [k) See Wright v. Vander- 
 plank, 2 K. & J. 1 ; Cocking v. 
 
 Pratt. 1 Yes. 401 : Blackborn v. 
 Edgeley, 1 P. Wms. 600 : and 
 Firmin v. Pulham, 2 De G. & 
 Sm. 99. 
 
 (/) See Hylton v. Hylton, 2 
 Ves. 549, and Hatch v. Hatch, 
 9 Ves. 296.
 
 GIFTS. 375 
 
 is looked upon with great suspicion. So, as the leading case (m) y, ocn procur- 
 on the subject shows us, silly women require to he protected ed by undue 
 against designing clergymen. " Perhaps no general rule can well influence, 
 be laid down as to what amounts to undue influence: that will 
 be a question for the judge to decide upon the circumstances of 
 each particular case, and such circumstances as the non-interven- 
 tion of a disinterested person, or professional adviser, on the behalf 
 of the donor — especially if the donor is, from age or weakness of 
 disposition, likely to he imposed upon — the statement of a consid- 
 eration where there was actually none, the absence of a power of re- 
 vocation, the improvidence of the transaction, furnish a probable, 
 though not always a certain, test of undue influence or.fraud " (n). 
 
 The two very recent cases of Mitchell r. Homfray (o) and Tay- . 
 
 lor v. Johnston (})) may just be mentioned here. 
 
 The action in the former case was by the executors of a Mrs. The doctor's 
 Geldard to recover a sum of £800 from the defendant, who had best custom- 
 acted as her medical attendant. The £800 had been given by Mrs. er - 
 ■Geldard to the defendant while she was his patient, and without 
 her having any independent advice; but the doctor had not been 
 guilty of any undue influence; and, after the relation of physi- 
 cian and patient had ceased, Mrs. Geldard elected to abide by the 
 gift, and did, in fact, abide by it during the remaining three or 
 four years of her life. Under these circumstances it was held 
 that the gift could not be impeached after Mrs. Geldard's death, 
 notwithstanding that it was not proved that the donor was aware 
 that the gift was voidable at her election. "In Rhodes v. Bate" 
 (q), said Lord Selborne, L. C, "it was laid down in clear terms 
 that, in order to uphold a gift made to a person standing in a con- 
 fidential relation, the donor must have had competent and inde- 
 pendent advice in conferring it. This is undoubtedly the rule 
 ■so long as the confidential relation exists ; but it is not laid down in 
 Rhodes v. Bate that advice of that kind is necessary when the con- 
 fidential relation has come to an end, and the donor is no longer sub- 
 ject to its influence.'" "If the transaction," said Baggallay, L. J., 
 "was not formally ratified, it was at all events adopted ; and, for 
 three years before her death, the testatrix kept to her determina- 
 tion not to impeach it." 
 
 In Taylor v. Johnston (r) the action was by personal repre- . gtrone- 
 sentatives for much the same purpose as in the case last referred minded 
 to, and it was held that, in the absence of proof of the exercise young lady. 
 of control or influence on the part of the donee, or of the exist- 
 ence of the relation of guardian and ward between the donee and 
 
 (m) Hugucnin v. Baseley, 14 in re Parker, Barker v. Barker, 
 
 Yes. 27:5. ' 16 Ch: D. 44. 
 
 (n) 2 Wh. & T. Eq. L. C, 584. (q) L. R. 1 Ch. 252. 
 (o) 8 Q. B. D. 587. (r) 19 Ch. D. 603. 
 
 (p) 19 Ch. Div. 603, and see
 
 37G 
 
 GIFTS. 
 
 Donaiiones 
 mortis causd. 
 
 Attitude of 
 donor. 
 
 Recovery or 
 revocation. 
 
 Actual de- 
 livery neces- 
 sary. 
 
 Mere symbol 
 will not do, 
 but key will. 
 
 Receipts for 
 
 South Sim 
 annuities. 
 
 the donor, a gift of her property within a month before her death by 
 an infant of twenty, of business habits, firm will, ami fully capable of 
 managing her own affairs, l<> a relative with whom she had been liv- 
 ing from the time of her lather's death live months before, is not 
 invalid. " She was at this time. " said the court, "in a moribund 
 state, as nobody can doubt. The doctor who spoke to the state 
 of her health speaks of it as leading, of her death as certain, but 
 of her mind as perfectly clear, her actions wholly uncontrolled. Un- 
 der these circumstances it is that she made the donation in ques- 
 tion. Now, in my opinion, it is perfectly lawful, under such cir- 
 cumstances, for an infant to make a donation If the relation- 
 ship of guardian and ward had subsisted, ," that would have 
 
 been a very different thing. 
 
 The last mentioned case seems to lead us gently and naturally 
 to the consideration of what are learnedly called donationes mortis 
 causa. 
 
 A donatio mortis causd is a conditional gift of personalty made 
 in contemplation of death. The donor would perfer (.s) that he 
 himself should remain the owner of the thing he gives, rather 
 than that it should have a new owner, whether the donee or any- 
 body else; but he is very ill and expects to die, and, knowing that 
 he cannot carry his property away with him, he hands it over to 
 the donee, to be his in the anticipated event of death. But the 
 gift will be defeated not only by the donor's getting better (I), but 
 also by his revoking (u) it. And even though the donor does not 
 expressly say that he will want the thing back, if by any acci- 
 dent he recovers, the law will imply a condition to that effect (x). 
 There must be an actual delivery of the thing to the donee, or to 
 some one else for the donee's use (y), and the donor must part, 
 not only with the possession, but the dominion (z); though the 
 gift may be saddled with a trust (a). A mere delivery to an agent 
 as agent/or the donor will not do (5). It is not sufficient to de- 
 livers symbol ; but where the nature of thethingwill not admit of a 
 corporeal delivery, a delivery of the means of coining at fhepossession 
 {e.g., a key) will be effective (e). In the leading case (d) on dona- 
 t joins mortis <-«usd it was held that the delivery of receipt for South 
 Sea annuities was not enough to pass the stock, notwithstanding 
 
 (.si FA, in suninia, mortis 
 causa donatio est cum magis se 
 (piis velit habere quam cum cui 
 donatur,niagisqueew?i cui donat 
 quam heredem suum. .lust. 
 [nst., Lib. 2, Tit. 7. 
 
 I / 1 Shiuilandr.Willott, 3 Mac. 
 & G. 664. 
 
 U Sec Edwards v. Jones. 1 
 My. & Cr. 233, and Tate v. Hil- 
 bert2 Yes. jun. 120. 
 
 << Gardiner v. Parker, 3 
 Madd. 184. 
 
 (y) Drury r. Smith, 1 P. Wins. 
 
 404. 
 
 (z) Hawkins v. Blewitt, 2 Esp. 
 663. 
 
 (a) Blount v. Burrow, 4 Bro, 
 C. C. 75, and Hills v. Hills, 8 
 M. & W. 401. 
 
 (b) Farquharson v. Cave, 2 
 Coll. 356. 
 
 (c Jones r.Sclbv.Prec.Chanc. 
 300;Smith v. Smith. 2 Stra,955; 
 and Bunn v. Markham, 7 Taunt. 
 224. 
 
 (d) Ward v. Turncr,2 Ves.431.
 
 GIFTS. 377 
 
 that there was strong evidence of the intent to make a gift of 
 such annuities. 
 
 A donatio mortis causd, probably cannol be made by d-eed with- I teed without 
 out delivery (< . delivery. 
 
 There may be a donatio mortis causd <>i' bonds (/>, bank- Documents. 
 notes (g), mortgage deeds (A), policies of insurance (/), or prom- 
 issory notes payable to order though not indorsed \k) ; butnotof 
 cheques (/), or railway stock (m). An old farmer, some years 
 ago. being in his last illness, gave his nephew, who had for some 
 years lived with him and helped him in his business, a cheque 
 for £4000, and with it his banker's pass book. Then the old 
 man died, having provided properly, as he thought, for his 
 nephew. But when, after his uncle's death, the young man 
 went to the bankers, they refused to cash the cheque ; and when 
 ■he came afterwards to Lincoln's Inn, he found that neither could 
 the transaction be supposed as a valid donatio mortis causd (n). 
 
 A donatio mortis causd differs from a legacy in the two points How donatio 
 that neither probate (o) nor the executor's assent (p) are neces- '"'!"''"* "<"- sa 
 sary. It differs from a gift inter vivos (such as Ironsx. Smallpiece ] eeacv , mt j 
 has to do with) in the three points that (1.) it is revocable, (2.) from gift 
 it is liable to legacy duty (q), and (3.) to debts (/•). inU r vivos. 
 
 An attempt to make an irrevocable gift inter vivos cannot be Unsuccessful 
 supported as a donatio mortis causd (s) ; nor can an invalid testa- efforts. 
 mentary gift be vivified in this way (I). 
 
 It may be questioned, incidentally, whether, in a will-making Ought 
 nation like ours, donationcs mortis causa are quite consistent with donationes 
 sound policy. At all events, as was long ago pointed out by an + ■, ,...u ( we( j 
 eminent judge («), they ought to be confined to those cases 
 where the donor is suddenly taken with mortal sickness, and 
 has no opportunity of making or altering his will with proper 
 legal advice and assistance. By all means, in other cases, let 
 the dying man make presents to those dear friends and faithful 
 servants who may stand round the bedside, but let them be ab- 
 solute, not conditional, gifts. 
 
 (e) See Wms. Exors.(8thed.), (n) Beak v. Beak, 41 L. J. 
 p. 786. Ch. 470. 
 
 (f) Snelgrove v. Bailey, 3 (o) Thompson v. Hodgson, '2 
 Atk. 214. .Stra. 777, and Rigden v. Vallier, 
 
 (g) Millei v. Miller, 3 P. 2 Ves. sen. 258. 
 
 Wms. 356. (p) Tate p. Hilbert, 2 Ves. 
 
 (A) Duffield v. Elwes, 1 Bligh. jun. 120. 
 N. S. 498. (q) 36 Ceo. 3, c. 52, s. 7. and 
 
 (i) Witt v. Amiss, 1 B. & S. 8 & 9 Vict. c. 76, s. 4. 
 109. (rl Smith v. Casen, 1 P. 
 
 i/,- 1 Veal v. Veal, -27 Beav. Wms. 40G. 
 303, and In re Mead, 15 Ch. I). (s) Edwards r. Jones, 1 My. 
 
 651. . & Cr. 226. 
 
 (/) Hewitt p. Kay, L. R, 6 it) Mitchell r. Smith, 12 W. 
 
 Eq. 275. R. 941. 
 
 (m) Moore v. Moore, L. R. 18 (m) Hedges v. Hedges, Prec. 
 
 Eq. 474. Ch. 269.
 
 378 GIFTS. 
 
 Married Eaving regard to the Married Women's Property act, 1882, 
 
 Women's tin- whole rule of law that husband and wife were for most pur- 
 Property Act, po S es one person, so that under a gift by will to a husband and 
 ' wife and a third person, the husband and wife took one moiety 
 
 < ' 1 " t " between them, the third person taking the other moiety, is no 
 
 W |j- L / longer applicable to such a gift under a will that has come into 
 
 operation since the commencement of that Act (x). 
 
 In Standing v. Bowring (y), the plaintiff, a widow, in the year 
 1880, caused a sum of £6000 Consols to be transferred into the 
 joint names of herself and the defendant, who was her god-son, 
 and in whose welfare she took great interest. This transfer was 
 not made known to the defendant. In 1882 the plaintiff, then 
 eighty-eight years old, married a second husband, and soon 
 afterwards applied to the defendant to retransfer the stock into 
 her name alone. It was decided that the transfer was originally 
 made with the deliberate intention of benefiting the defendant, 
 and not with a view to the creation of a trust. The court would 
 not, therefore, compel the defendant to re-transfer the stock. 
 Donatio mor- A cheque payable to the donor or order, and without having 
 tis causa. been endorsed by him, given by the donor during his last illness 
 
 to his son, stands on the same footing as a promissory note or 
 bill of exchange payable to the donor or order, and following 
 Veal v. Veal (27 Beav. 303), will pass to the son by way of 
 Inter vivos. donatio mortis causa (z). A clear intention on the part of the 
 donor to give, acted upon by the donee, constitutes a valid gift 
 inter vivos, without actual delivery (a). In 1866 A., soon after 
 the birth of his son T., purchased a pipe of wine for his son, and 
 had it bottled and laid down in his cellar, and from that time it 
 remained intact in the cellar, and was known in the family and 
 amongst their friends as T.'s wine. In 1885 A. became bank- 
 rupt. It was decided that there was not sufficient evidence of an 
 intention to make an immediate present gift of the wine to T., 
 and that it passed to the trustee in bankruptcy (5). 
 As to gifts defrauding creditors, see ante. 
 
 (,r) March In re, Mauder v. Pechv Ridge v. Burrow, 53 L. 
 
 Harris, 24 Ch. D. 222, 52 L. J. T. 5, C. A. 
 
 Chan. 680 ; 49 L. T. 168 ; 31 . (a) Harcourt In re, Danby v. 
 
 W. R. 885 ; 48 J. P. 23— Chitty, Tucker, 31 W. R. 578 ; Pollock, 
 
 J. B. Dictum of Parke. B., in 
 
 0> 29 Ch. D. 341 ; 54 L. J., Ward v. Audland (16 M. & W. 
 
 Ch. 10 ; 51 L. T. 591 ; 33 W. R. 871) followed. Irons v. Small- 
 
 78 — Peai'son, J. piece, not followed. 
 
 (z) Clement v. Cheesemen, 27 (b) In re Ridgway, 15 Q. B. 
 
 Ch., D. 631 : 33 W. R. 40— D. 447. 
 Chitty, J., and see Shield In re
 
 HIGHWAYS. 379 
 
 Highways. 
 
 DOVASTON v. PAYNE. £145.] 
 
 [2H.Bi.. 527 (1795).] 
 
 This was an action for wrongfully taking and im- 
 pounding cattle, and the legal gentleman who drew the 
 pleadings for the plaintiff ruined his case by saying 
 that the cattle were "m" the highway, when he ought 
 to have been careful to say that they were "passing 
 along " it. 
 
 A highway may be defined as a passage which all the Queen'' s sub- What is a 
 jects have a right to use. Of highways there are several kinds ; highway? 
 such as footpaths, turnpikes, streets and public rivers. So. too, 
 a cut dc sac may be a highway just as much as a through thorough- 
 fare (c). 
 
 The amount of interest that the public have in a highway is 
 well put by Heath, J., in Dovaston v. Payne: — "The property is Easement. 
 in the owner of the soil, subject to an easement for the benefit of 
 the public." An easement nothing more. The public have a 
 right to use it for all the purposes of a highway ; but. subject to 
 the public easement, the right of property remains in the owner 
 of the soil. Thus, in R. v. Pratt (d) the appellant, whilst on a Pheasant 
 highway, carrying a gun, had sent a dog into a covert on one shooting in 
 side of the highway. Immediately afterwards a pheasant flew e ni g nwa y- 
 across the highway, at which he fired. Under these circumstances, 
 the appellant was held rightly convicted of trespass on the high- 
 way under the Day Poaching Act. Lord Campbell observed : . 
 " No doubt the appellant was a trespasser when he went upon the 
 highway as he did for the purpose of searching for game, and for . 
 that purpose only, and I think he must be considered as being in 
 search of game there." 
 
 In the absence'of any express evidence tothecontrary^the ordi- Presumption 
 nary presumption is that the landowners on either side of the of ownership. 
 highway are entitled "to the soil of the road which bounds their 
 land usque ad medium filurn vise. This presumption is doubtless 
 founded on the assumption "that in making a road for public 
 convenience, the owners of the adjoining land have sacrificed a *• 
 
 portion of their property in order to devote it to public purposes" 
 (e). And where the presumption arises,as will be readily supposed, 
 
 (c) Vernon v. Vestry of St. (c) Per Cockburn, C. J., in 
 
 James, Westminster, 49 L. J. Leigh v. Jack, L. J. 49 Ex. at 
 
 Ch. 130. p. 222. 
 
 {d) L. J. 24 M. C. 113.
 
 380 HIGHWAYS. 
 
 the rule is that the sale of an estate bounded by roads operates to 
 pass to the purchaser the property in the soil of those roads usque 
 ad medium filum viae. It must not, however, be forgotten, that this 
 presumption is capable of being easily rebutted, as, for example, 
 by showing that the road was originally set out under an enclos- 
 ure Act; And, indeed, in all districts in which the Public Health 
 Act, 1875, is in force, the soil of the highway is vested in the 
 local authority, but* only to such a depth as is usually required 
 for the ordinary work which the authority would need to execute 
 in and upon the highway (/). 
 
 It may, too, be added that the presumption as to the ownership 
 of the soil of waste land adjoining a road is that it belongs to the 
 owner of the adjoining enclosed land, and not to the lord of the 
 manor (g). 
 Dedication of The dedication of a highway to the public is a question of in- 
 high way. teni ion, such intention, however, being capable of being inferred 
 from long user. "If the owner of the soil throws open a pas- 
 sage, and neither marks by any visible distinction that he means 
 to preserve all his rights over it, nor excludes persons from pass- 
 ing through it by positive prohibition, he shall be presumed to 
 have dedicated it to the public. Although the passage in ques- 
 tion was originally intended only for private convenience, the 
 public are not now to be excluded from it, after being allowed to 
 use it so long without any interruption " (h). But. the user by 
 the public is merely evidence of the intention to dedicate', and a 
 single act of interruption by the owner is of much more weight 
 upon a question of intention than many acts of enjoyment (/). Of 
 course, if the act of dedication be unequivocal, the dedication may 
 take place immediately. 
 Limited It i s > moreover, worthy of remark that the dedication of the 
 
 dedication. highway may be limited as to purpose e. g., it may be for all pur- 
 poses except that of carving coal (k), or as in the case of a bridge 
 which is to be used only when the river is so swollen that per- 
 , sons attempting to ford it would be drowned, or of a footway 
 which is liable to be ploughed up occasionally. But the dedica- 
 tion must be general to the public, and not merely to a limited 
 part of the public, as a particular parish (/) ; such a partial dedi- 
 cation is simply void, and will not operate in law as a dedication 
 to the whole public. 
 Take it as It is to be observed, also, that a highway may be dedicated 
 
 you find it. with an obstruction on it, so that the dedicator would not be 
 responsible for an accident happening by reason thereof (m). 
 
 (f) Coverdaler. Charlton, L. Huskinsm, 11 M & W. 827. 
 
 R. 4 Q. B. D. 104 ; L. J. 48 Q, (k) Stafford v. Coyney, 7 B. 
 
 B. 128. & C. 257. 
 
 (g) Doe d. Pring v. Pearsley, (I) Hildreth /•. Adamson, 25 
 7B.&C. 304. J. P. 645. 
 
 (h Per Ellenborough, C. J., (m) Fisher v. Prowse, 6 L.T. 
 in King v. Lloyd, 1 Camp. 260. X. S. 711. 
 i /'< /• Parke. B. . in Poole v.
 
 HIGHWAYS. .')Nl 
 
 In a recent ease (») the point arose (through it heeame nnnec- Can a lessee 
 essary to decide it) whether a lessee can dedicate to the public, dedicate? 
 Probably, however, it may be said thai lie has no such power, at 
 any rate except as against himself and his assignees. But it is 
 to be remembered that long user, as of right, and openly, is evi- 
 dence from which assent on the part of the owner, whoever he 
 rnay be, is prima" facie to be inferred. The burden lies upon the 
 person who seeks to deny the inference from such user, to show 
 negatively that the state of the title was such that the dedi- 
 cation was impossible, and that no one capable of dedicating ex- 
 isted (o). 
 
 The obligation of repairing a highway generally falls on the Mending the 
 occupiers of land in the parish through which the highway runs ; roao - s - 
 but it is not within the scope of this work to describe the ma- 
 chinery provided for the execution of these repairs by the various 
 highway authorities, e. g., surveyors of highways, highway 
 boards, and local boards (p). It may, however, be mentioned 
 that, when a road was dedicated to the public, at common law 
 the consequence followed that it became repairable by the inhab- 
 itants of the parish or district. But now, under the provisions 
 of the General Highway Act, 1835, the inhabitants cannot be 
 compelled to repair a road so dedicated as a highway unless cer- 
 tain things are done — amongst others, unless the road be made 
 in a substantial manner and to the satisfaction of the highway 
 authorities (q). 
 
 Sometimes, too, the burden of repairing falls on a private per- Private per- 
 son by prescription, or ratione tenurse, i. e., by reason of the son having 
 tenure of lands.* But to constitute such liability, it must have <-° l ■ 
 existed from time immemorial. So, also, a man may be bound 
 to repair ratione clausunc, i. c, as the occupier of lands adjoining 
 the highway which he has enclosed, and over which the public 
 had a right to go in case the road became incommodious or im- 
 passable. 
 
 "Once a highway, always a highway," is a familiar common law Stopping up 
 maxim ; but power is now given to justices of the peace, under highways, 
 certain circumstances, to divert or extinguish highways ; and it 
 has been held in a recent case (r) that when access to a highway 
 has become impossible, in consequence of the ways leading to it 
 having been legally stopped up, it ceases to be a highway. "The 
 great difficulty here," said Denman, J., in the case referred to, 
 "seems to arise from the familiar dictum, 'once a highway, 
 always a highway,' and from the necessity of now, for the first 
 time, placing a limitation on it. But I think we are compelled 
 to hold that this is a case where that which formerly was a high- 
 
 (») Att.-Gen. v. Biphoscated (q) See per Blackburn, J., in 
 
 Guano Co.. L. R. 13 Ch. D. 327. R. v. Dukinfield, L. J. 32 M. C. 
 
 (0) See Powers v. Bathurst, 235. 
 
 L. J. 49 Ch. 294. (/•) Bailey v. Jamieson, L. R. 
 
 (p) See Shirley's Magisterial 1 C. P. D. 329. 
 Law, pp. 104—110. 
 
 26 COMMON LAW.
 
 382 
 
 HIGHWAYS. 
 
 Duties of 
 local board. 
 
 Dedication. 
 
 Indictment 
 for obstruc- 
 tion. 
 
 What's the 
 highway? 
 
 Reserved 
 tolls. 
 
 way, but which, though it has not been stopped by a statutory 
 process, has, by reason of legal acts at either end of it, ceased to 
 be a place to which the Queen's subjects can have access, loses 
 its character of a highway." 
 
 In Kent v. Worthing Local Board of Health it was decided 
 that it was the duty of the defendants to make such arrange- 
 ments that works under their care should not become a nuisance 
 to the highway, and the plaintiff recovered damages from the 
 defendants for injuries to his horse caused by a valve cover in the 
 road being exposed by the ordinary wear of the traffic, and caus- 
 ing the horse to fall (.s). 
 
 A court which was not a thoroughfare had, for seventy or eighty 
 years, been, at all hours, open to the public, and had been paved, 
 lighted, and cleansed by the parish vestry, and the owners of the 
 soil were not shown to have, during that time, exercised any right 
 of ownership over the soil of the court. It was decided by Yice- 
 Cbancellor Malins that the courthad been dedicated to the public, 
 so as to bring it under the vestry according to the Local Manage- 
 ment Act of the Metropolis (t). 
 
 Upon the trial of an indictment for obstructing a highway, the 
 defendant was acquitted. It was decided that a new trial on the 
 ground of misreception of evidence, misdirection, and that the 
 verdict was against evidence could not be granted (w). 
 
 The defendant left an agricultural roller between the hedge 
 and the metalled part of the road, having removed it from a field 
 on the opposite side of the road for his own convenience. A pony 
 drawing a carriage in which plaintiff's wife was riding, shied at 
 the roller, upset the carriage, and the plaintiff's wife was killed. 
 It was decided that the roller was an obstruction to the highway ; 
 that it was an unreasonable user Of the highway by the defend- 
 ant, and that the plaintiff was entitled to recover damages for 
 the death of his wife under Lord Campbell's Act (re). 
 
 The right of the public to use a highway extends to the whole 
 road and not merely to the part used as via trita. Therefore 
 ditches fifteen inches wide and ten inches deep, cut completely 
 across the strips of grass land at the sides of roads, so as to 
 amount to a danger to persons walking along the strips, amount 
 to a nuisance and obstruction (y). 
 
 The promoters of an intended road by deed declared that the 
 road should not only be enjoyed by them for their individual pur- 
 
 («) 10 Q. B. D. 118 ; and see D. 198. 
 
 White v. Hindley Local Board, 
 10 Q. B. 219, and Blackmore ». 
 Yestry of Mile Old Town, 9 Q. 
 B. D. 451. 
 
 (t) Y'ernon v. Vestry of St. 
 James, Westminster, 16 Ch. D. 
 449. 
 
 (w) Reg. v. Duncan, 7 Q. B. 
 
 (x) Wilkins v. Day.49 L.T.39, 
 32 W. R. 123. 48 J. P. 6— D. ; 
 and see Gully v. Smith, 12 Q. 
 B. D. 121, 53 L. J. M. C. 35, 48 
 J. P. 309,— D. 
 
 (^)Nicol v. Beaumont, 53 L. 
 J., Ch. 853, SOL. T. 112, Kay, J.
 
 highways. 383 
 
 poses, but ' ' should he open to the use of the public at large for all 
 manner of purposes in all respects as a common turnpike road" 
 but subject to the payment of tolls by the persons using it. It was de- 
 cided that this was not a dedication of the road to the public, 
 and that the road was not a highway repairable by the inhabi- 
 tants at large under S. 150 of the Public Health Act 1875. It 
 seems that without legislative authority, an individual cannot 
 dedicate a road to the public if he reserves the right to tolls for 
 the user (.-). 
 
 Persons using a traction engine and trucks on a highway may Traction 
 be indicted as a nuisance, e.ej. if they create a substantial oh- engine, 
 struction and occasion delay and inconvenience to the public sub- 
 stantially greater than such as would arise from the use of carts 
 and horses (a) 
 
 The reader would do well to refer to the following cases: — Other cases. 
 
 Hollins v. Yerney, 53 L. T. 47. P. v. Cross, 3 Camp. 224. Hall 
 v. Corporation of Bootle, 44 L. T., N. S. 873. Finch v. G. W. 
 Rv. Co., 5 Ex. D. 254. Mayor of London v. Eiggs, 49 L. J. Ch. 
 297. Tillett v. Ward, 10 Q. B. D. 17. Normanton Gas Co. vi 
 Pope and Pearson, 74 L. T. 209. The Queen v Justices of Essex, 
 11 Q. B. D. 704. Guardians of Amesbury v. Justices of Wilts, 
 10 Q. E. D.480. Parkyns v. Preist, 7 Q. B. D. 313. Corpora- 
 tion of Pochdale v. Justices of Lancashire, Q. B. D. 525; 8 Q. 
 B. D. 12; 8 App. Cases, 494. Justices of West Eiding of York. 
 v. The Queen, 8 App. Cases, 781. Wallington v. Hoskins, 6 Q. 
 B. D. 200. Pickering Lythe East Highway Board v. Barry, 8 Q. 
 B. D. 59. The Queen v. Ellis, 8 Q. B. D. 466. Alresford Rural 
 Sanitary Authority i>. Seott, 7 Q. B. D., 210. Ramsden v. Yeates, 
 6 Q. B. D. 583. 44 & 4.5 Vict, c. 27, repealing 5 & 6 Will. IV. c. 
 50, s. 30. 
 
 The Queen v. Thomas, 11 Q. B. D. 282. Oxenhope District other cases. 
 Local Board v. Bradford (Mayor), 47 L. T. 344; 31 W. R. 322; 47 
 J. P. 21, D. Dyson r. Grutland Local Board, 48 L. T. 636; 41 J. 
 P. 552, D. Murett v. Bridges, 47 J. P. 775, D. Burton v. Salford 
 Corporation, 11 Q. B. D. 286; 52 L. J.. Q. B, 668; 49 L. T. 43; 
 31 W. R. 815; 47 J. P. 614, Cave, J. Reg. v. Thomas, 11 Q. B. 
 D. 282; 52 L. J., Q. B. 671; 47 J. P. 792, D. Newton Improve- 
 ment Commissioners v. Justices of Lancashire, 13 Q. B. D. 623 ; 
 48 J. P. 406, D., affirmed 54 L. J., M. C. 1— C. A. Over-Darwen 
 (Mayor) v. Lancaster (Justices), 13 Q. B. D. 497; 53 L. J., M. C. 
 198; 51 L. T., 630; 48 J. P. 437, D. Affirmed in C. A., W. N., 
 18S4, 233. Middlesborough Overseers v. Yorkshire (N. R.) Jus- 
 tices, 12 Q. B. D. 239 ; 32 W. R. 671, C. A. Reg. v. Cheshire 
 Justices, 50 L. T. 483; 48 J. P. 262, D. United Land Co. v. Tot- 
 tenham Board of Health, 13 Q. B. D. 640; 53 L. J., M. C. 136; 
 
 (z) Austerberry v. Oldham P. 532, C. A. 
 Corporation, 29 Ch. D. 750, 53 (a) Reg. v. Chittenden, 49 J. 
 L. T. 543, 33 AY. R. 807, 49 J. P. 503, Hawkins, J.
 
 :;s] HIGHWAYS. 
 
 32 W. R. 798, D. Reg. r. Dover (Recorder), 32 W. R. 876, D. 
 Rotherham (Mayor) v. Fullerton, 50 L. T. 364, D. Phelips v. 
 Hadham District Hoard, 1 C. & E. 67. Coleridge, C.J. ; llling- 
 worth v. Bulmer East Highway Board, 53 L. J., M. C. 60; 32 W. 
 R. 450, C. A. 47 & 48 Vict., c. 52, certain turnpike Acts are con- 
 tinued, and certain others repealed. Loughborough Highway 
 Board v. Curzon, 16 Q. B. D. 565. 
 
 Contracts made Abroad, &c. 
 
 [146.] FABRIG-AS v. MOSTYN. 
 
 [COWP. 161 (1775).] 
 
 In 1770 the Governor of Minorca was a gentleman 
 named Mostyn, who apparently was of opinion that he 
 was entitled to play the part of an absolute and irre- 
 sponsible despot on his small stage. One of his sub- 
 jects, however, a Mr. Fabrigas, did not coincide with 
 him in this view, and he rendered himself so obnoxious 
 that the governor, after keeping him imprisoned for a 
 week, banished him to Spain. 
 
 It was for this arbitrary treatment that Fabrigas now 
 brought an action at Westminster. Mostyn objected 
 that, as the alleged trespass and false imprisonment 
 had taken place in Minorca, the action could not be 
 brought in England. But it was held that, as the cause 
 of action was of a transitory and not a local nature, 
 it could. And a British jury gave Fabrigas £3000 
 damages. 
 
 Local and Actions were formerly divided into local and transitory: local, 
 
 transitory. such as could be tried only in the county in which the cause of 
 action arose {e.g., an action of trespass to land), transitory, such 
 as could be tried wherever the plaintiff chose {e.g., an action 
 for an assault). But, through a provision of the Judicature Act, 
 which abolishes local venue and allows the plaintiff, subject to its
 
 CONTRACTS MADE ABROAD, ETC. 385 
 
 being changed by a judge, to name any county he pleases for the 
 place of trial, the case has lost its old importance, and governer 
 Mostyn and his doings are chiefly of antiquarian interest. 
 
 It may be still, however taken to "lead" as to the law relating to Contracts 
 contracts entered into abroad and sought to be enforced in Eng- made abroad, 
 land. Such contracts arc primarily to be expounded according to 
 the law of the place where made, — the lex loci contractus, as it is 
 called. For example, if by the French law (b) the property in a 
 bill of exchange payable to order is not passed without a special 
 indorsement, the holder of a bill drawn in France apd there in- 
 dorsed to him in blank cannot sue on it here, although in the case 
 of an English bill a blank indorsement would have sufficed. But 
 this rule admits of an exception in the ease where the parties in- 
 tended the contract to be executed in a country other than that 
 in which it was entered into. Contracts which are illegal accord- 
 ing to English law, though legal according to the law of the 
 country where made, cannot be enforced inEngland {<■). ''When 
 a court of justice in one country is called onto enforce a con- 
 tract entered into in another country, the question is not only 
 whether or not the contract is valid according to the law of the 
 country in which it is entered into, but whether or not it is con- 
 sistent with the law and policy of the country in which it is to 
 be enforced ; and if it is opposed to those laws and that policy, the 
 court cannot be called on to enforce*it ", (d). Thus, the rule that 
 a contract in restraint of trade is void, unless confined within 
 what is reasonably necessary for the protection of the contrac- 
 tee, is a rule applicable to contracts made abroad and between 
 aliens (e). And although a contract is to be expounded accord- 
 ing to the law of the place where made, proceedings to enforce it 
 are governed by the law of the place where the action is brought, — 
 the lex loci fori. For example, if an agreement be one of that 
 class which the 4th section of the Statute of Frauds requires to 
 be in writing, a verbal agreement made in a foreign country where 
 it would have been perfectly valid cannot be enforced in England 
 (/). Similarly, an action on a contract entered into in Scotland, 
 and which might by the laws of that country have been enforced 
 within forty years, has been held to be barred by the English 
 Statute of Limitations (g). 
 
 By the law of Jersey, a husband is still liable for the ante-nup- 
 tial debts of his wife. In England, if the marriage has taken 
 
 (6) Trimbey?;.Vignier,l Bing. v. Hope. 8 D. M. & G. 743. 
 N.C. 151 ; Bradlaughr. DeRin, (e) Rousillon v. Rousillon, L. 
 
 L. R. 5 C.P. 473 ; and see Home J. 49 Ch. 338. 
 v. Rouquette, L.R. 3 Q.B.D.514. ( f) Leroux v. Brown, 12 C. 
 
 (c) .Santos v. Illidge, 8 C. B,, B. 801. 
 N. S., 874 (g) British Linen Co. t'.Drum- 
 
 (d) Per Turner, L. J., in Hope moiid, 10 B. & C. 903
 
 :;m; 
 
 CONTRACTS MADE ABROAD, ETC. 
 
 French 
 "prodigal 
 
 place since July 30, 1874, he is liahle only to the extent of cer- 
 tain specified assets. A Jersey girl contracted debts in Jersey, 
 and then came to England, and, after July 30, 1874, got married. 
 The lady's Jersey creditor brought an action against the husband, 
 urging that the lex loci contractus ought to prevail, and that the 
 husband was Liable. But it was held that the husband was not 
 liable, as, the marriage having taken place in England, the Jer- 
 sey law did not apply (h). 
 
 It maybe observed that' when a contract is entered into by 
 letter between two persons living in different countries, the place 
 where the contract is considered to have been made, so as to de- 
 termine the lex loci contractus, is the place -where the final assent 
 has been given by the one party to an offer made by the other. 
 
 The courts of this country will not recognise a state of disabil- 
 ity which is unknown to our laws. They will not, for instance, 
 can sue here, take notice of a personal disqualification caused by a change of 
 status, not arising from the law of nature, but from the principles 
 of the customary or positive law of a foreign country (/). 
 
 The validity of a marriage .contracted in England, though the 
 domicile of one of the parties may be foreign is decided according 
 to the law of England ( k) ; but, it has been decided that the ques- 
 tion of divorce is not an incident of the marriage contract to be gov- 
 erned by the lex loci contractus. The power of dissolving the mar- 
 riage tie is an incident of status to be regulated by the law of the 
 domicile of the parties — that is, of the husband, for immediately 
 upon marriage the wife's domicile becomes that of her husband. 
 Thus (/), an English court will recognise as valid the decree of a 
 Scotch court dissolving the marriage of a domiciled Scotchman and 
 an Englishwoman, although the marriage was solemnized in Eng- 
 land and was dissolved upon a ground for which by English law 
 no divorce could have been granted. 
 
 As to torts committed abroad, an action lies in England, pro- 
 vided that the tort is actionable both by our law and by the law 
 of the country where the tort was committed. The case of Phillips 
 v. Eyre (m) shows how necessary it is that both of these condi- 
 tions should be fulfilled. It was an action for assault and false 
 imprisonment againt the ex-governer of Jamaica, the trespass 
 complained of having been committed during a rebellion in that 
 island. The defendant successfully relied on an Act of Indem- 
 nity which the Jamaica Legislature had passed, and said that leg- 
 
 Torts com- 
 mitted 
 abroad. 
 
 (fc)DeGreuchy v. Wills, L.R. 
 4 C. P. D. 362. 
 
 (i) Worms v. De Valdor, L.J. 
 49 Ch. 261. 
 
 (k) Sottomaver v. De Barros, 
 L. R. 5 P. D. 9 1. 
 
 (/) Harvey v. Farnie, L. P. 6 
 P.D. 35.Affirmedin 8 A pp. Cases 
 43; 52 L.J. P. 33: 48L.T.273; 31 
 W. R. 433; 47 J. P. 308; H. L. 
 
 (m) L. R. Q. B. 1.
 
 CONTRACTS MADE ABROAD, ETC. 387 
 
 islation, though ex post facto, cured the wrongfulness of his acts, 
 and prevented the plaintiff from recovering. The case of The 
 Halley (m) is another authority on the subject. By the negli- 
 gence of a pilot, compulsorily taken on hoard, The Halley, a 
 British steamer in Belgian waters, ran down a Norwegian vessel, 
 The Napoleon. By Belgian law the Britisher was liable, but by 
 our law the fact that the pilot was on board, and that the collis- 
 ion was due to his negligence, exempted her. It was held that, 
 under those circumstances, no action lay against her in Eng- 
 land. "It is," the court said, "in their lordships' opinion, 
 alike contrary to principle and to authority, to hold that an Eng- 
 lish court of justice will enforce a foreign municipal law, and 
 will give a remedy in the shape of damages, in respect of an act 
 •which, according to its own principles, imposes no liability on 
 the person from whom the damages are claimed." 
 
 But, on the other hand, it is no defence to an action for a tort 
 committed in a foreign country that, by the laws of that country 
 no action lies till the defendant has been -dealt with criminally, 
 for that is a mere matter of procedure (o). 
 
 The courts do not take judicial notice of the laws of foreign Foreign law, 
 states. Such laws are proved by the oral evidence of persons now proved, 
 having a practical acquaintance with them, and whether any 
 particular person tendered as a witness is duly competent is a 
 question for the court. In a case (p) in which the question was, 
 whether a London hotel keeper, but a native of Belgium, and 
 who had been a mei-chant in Brussels, was competent to prove 
 the law of Belgium as to the presentment of promissory notes, 
 Talfourd, J., said : "Foreign law is matter of fact: any person 
 who can satisfy the court that he has the means of knowing it is 
 an admissible witness to prove it. One who has been long in the 
 habit of attending as a special juryman in the city of London 
 would no doubt be well qualified to speak as to the law of Eng- 
 land on many subjects connected with commerce. As to the 
 admissibility of this person's evidence, I think there can be no 
 doubt, whatever may have been the weight it was entitled to." 
 
 The judgment of a foreign court in any proceeding in personam, 
 if final and conclusive where made, and if not plainly contrary 
 to natural justice, is (q) final and conclusive here. 
 
 The owner of cargo who ships it on board a foreign vessel Law of the 
 ships it to be dealt witii by the master according to the law of Flag, 
 the flag, that is the law of the country to which the vessel be- 
 longs (r). 
 
 (n) L. R. 2 P. C. 193. CI. & Fin. 368. 
 
 (o) Scott V.Seymour, 1 H & (r) The"Gaetano and Maria," 
 
 C. 219. 7 P. D. 1. 137 ; 51 L. J. P. 67; 
 
 (p) Vander Donckt v. Thel- 46 L. T. 835 ; 30 W. R. 766 ; 4 
 
 lusson, 8 C. B. 812. Asp. M. C. 535, C. A. 
 
 (3) Kichardo v. Garcias, 12
 
 3SS 
 
 CONTRACTS MADE ABROAD, ETC. 
 
 Unsealed 
 
 lease. 
 
 Negligence. 
 
 Colonial law 
 
 Proof of 
 Persian law. 
 
 Legitimacy. 
 
 By Scotch law a instrument under seal is not necessary for the 
 conveyance of a sporting right, and therefore the stipulations of 
 an unsealed lease made between Englishmen in England of a 
 sporting right over land in Scotland may be enforced by action 
 in the English courts, as the provision of the law of England that 
 an instrument under seal is necessary for the conveyance of a 
 right to an incorporeal hereditament is not part ol the lex fori (s). 
 
 In an action in personam, brought by the owners of a British 
 vessel against the owners of a Spanish vessel to recover damages 
 caused to the British vessel by collision with the Spanish vessel 
 on the high seas, the defendants pleaded that they were Spanish 
 subjects, and that if there was any negligence on the part of those 
 in charge of the Spanish vessel, it was negligence for which the 
 master and crew alone, and not the defendants, were liable ac- 
 cording to the law of Spain. It was decided that such a defence 
 was bad upon demurrer (I). 
 
 In Bateman v. Service it was held that the Western Australian 
 Joint Stock Companies Ordinance Act, 18.18, does not apply to 
 foreign corporations or to companies incorporated out of Western 
 Australia, and properly asd lawfully carrying on business as 
 such. Consequently, a limited Company incorporated elsewhere, 
 not having complied with its provisions, can nevertheless carry 
 on business and make contracts in Western Australia by its 
 agent without its members being liable individually for its debts 
 and engagements, and that a company duly registered and incor- 
 porated in Victoria could not be again registered as a company 
 in Western Australia (u). 
 
 D. M. K., a Persian subject, was by a decree of a Persian court 
 declared entitled to certain property in this country. The decree, 
 though founded partly upon a will, made no mention of it, and the 
 court which had custody of the will refused to give a copy of it. 
 The Court of Probate granted letters of administration limited 
 to the property mentioned in a duly authenticated copy of the 
 decree. The court allowed the law applicable to the case to be 
 proved by a Persian Ambassador (x). 
 
 A bequest of personalty in an English will to the children of 
 a foreigner must be construed to mean to his legitimate children, 
 and by international law as recognized in this country , those 
 children are legitimate whose legitimacy is established by the 
 law of their father's domicil (y). 
 
 (s) Adams v. Clutterbuck, 10 
 Q. B. D. 403. 
 
 (/) The Leon, 6 P. D. 148. 
 
 (w) Bateman v. Service, 6 
 A pp. Cases, 386 ; Buckely v. 
 Schutz, L. R. 3 P. C. 764. 
 
 (x) In the goods of Dost Aly 
 Khan, 6 P. D. 6. 
 
 (y) In re Andros, Andros v. 
 Andros, 24 Ch. D. 637 ; 52 L. J. 
 Ch. 793 ; 49 L. T. 163 ; 32 W. 
 R. 30 ; Kay, J.
 
 CONTRACTS MADE ABROAD. ETC. 389 
 
 A testator, who was domiciled and resident in Scotland and Appearance 
 
 whose will was in Scotch form, appointed six executors, two of without 
 whom were resident in England : another, being a Scotch mem- protest. 
 ber of Parliament, resided in England during the session ; and 
 the other three resided in Scotland. The value of the estate was 
 about 6500,000, and it was all in Scotland with the exception of 
 about £25,000, which was in England. The executors proved 
 the will in Scotland and constituted themselves legal personal 
 representatives iu England, and removed all the English person- 
 alty to Scotland. An action was then commenced in England 
 by a plaint ill' resident there, who was entitled to a share of a 
 legacy, and also of the residue, for the administration of the 
 estate. Three of the trustees were served in England and the 
 other three in Scotland, and they entered an appearance without 
 any protest and took no steps to discharge the order. No action 
 was pending in Scotland for the administration of the estate 
 there. It was decided that the court at the trial has no discre- 
 tion and that the plaintiff was entitled to the ordinary decree 
 for the administration of the wholeestate. But if the executors 
 had appeared conditionally and applied to discharge the order for 
 service in Scotland, the court would have considered the <|iies- 
 tion as to whether it was convenient to have the estate adminis- 
 tered in England (.-). 
 
 Foreign personal assets are governed by the lex domicilii of the Foreign per- 
 deceased owner for the purpose of succession and enjoyment, sonal assets. 
 
 For the purpose of legal representation, of collection, and of 
 administration as distinguished from distribution among the suc- 
 cessors they are governed by the lex loci (a). 
 
 De Fogassieras v. Duport, 11 L. R., Ir. 123., P. D. Bloxam v. Other cases. 
 Favre, 8 P. D. 101 ; 52 L. J. P. 42 ; 31 W. R. 610 ; 47 J. P. 377, 
 D. Hawthorne, in re, Graham v. Massey, 23 Ch. D. 743 ; 52 L. 
 J. Ch. 750 ; 48 L. T.. 701 ; :;•-' W. R. 147, Kay, J. In re Tootal's 
 Trusts, 23 Ch. D. 532 ; 52 L. J. Ch. 664 ; 48 L. T. 81G ; 31 W. 
 R. 653 ; Chitty, J. Hyman v. Helm, 21 Ch. D. 531 ; 49 L. T. 
 376 ; 32 W. R. 258, C. A. Heara v. Glanville,48 L. T. 356,Pear- 
 son. J. Chartered Mercantile Bank of India. London, and China 
 v. Netherlands India Steam Navigation Co., 10 Q. B. D. 5:21 ; 52 
 L. J., Q. B. 220 ; 48 L. T. 546 ; 31 W. R. 445 ; 47 J. P. 260, C. 
 A. Jacobs r. Credit Lyonnais, 4«J L. T. 39, D. Abouloff v. Op- 
 penheimer, 10 Q. B. D., 295 : 52 L. J., Q. B. 6 ; 47 L. T. 325 ; 
 31 W. R. 57. C. A., affirming 3D W. R. 429, D. A Foreign 
 Judgment is a debt tinder Order XrV., Greer v. Pole. 5 Q. B. D. 
 
 (z) Orr-Ewing, In re, Orr- Cases, 82; 52 L. J. P. C. 10; 48 
 
 Ewingr. Orr-Ewing, 22 Ch. D. L. T. 441; 31 W 11. 045, P. C; 
 
 456: 52 L. J. Ch. 529; 48 L. and see Orr-Ewing, 9 App. Cases, 
 
 T. 555 ; 31 W. R. 464. C. A. 34; 53 L. J. Ch. 435; 50 L. T. 
 
 Affirmed, W. N. 1883, 200. 461; 32 W. R. 573. 
 
 (a) Reg. v. Blackwood, 8 App.
 
 390 CONTRACTS MADE ABROAD, ETC. 
 
 272. Musgrave v. Pulido, 5 App. Ca. 102. Strousberg v. Repub- 
 lic of Costa Rica, 44 L. T., X. S. 199. Alliance Bank of Simla 
 v. Carey, 5 C. P. D. 429. Dawkins v. Sinionetti, 44 L. T.,N.S., 
 266. De Montbrun v. Heisch, L. J., N. S., Feb. 3rd, 1883. De 
 Qui r. Stone, 2:2 Ch. D. 243. 
 Other cases. Bradford v. Young, 26 Ch. D. 656; 54 L. J., Ch. 96; 50 L. T. 
 707, 32 W. R. 'JUL Pearson, J. Cunningham, Ex parte, Mitchell, 
 In re, 13 Q. B. D. 418; 53 L. J., Ch. 1067; 51 L. T. 447; 33 W. 
 R. 22; 1 M. B. R. 137, C. A. In re Matheson, 27 Ch. D. 225; 
 51 L. T. Ill; 32 W. R. 846, Kay, J. Hernando, In re, Hernando 
 v. Lawtell, 27 Ch. D. 284; 53 L. J. Ch. 865. 51 L. T. 117, Pear- 
 son, J. Grant v. Easton, 13 Q. B. D. 302; 53 L. J., Q. B. 68; 49 
 L. T. 645; 32 W. R. 239, C. A. In re Kloebe, Hannreuther v. 
 Geiselbrecht, 28 Ch. D. 175; 54 L. J., Ch. 297; 52 L. T. 19; 33 
 W. R. 391, Pearson J. Patience, In re, Patience v. Main 29 Ch. 
 D. 976; 54 L. J., Ch. 897; 52 L. T. 687; 33 W. R. 501, Chitty J. 
 The Lauderdale Peerage, 10 App. Cases, 692; H. L., Sc. Mac- 
 reight, In re, Paxton v. Macreight, 30 Ch. D. 165; 55 L. J. Ch. 
 18; 53 L. T. 146; 33 W. R. 388, Pearson J. Marseilles Exten- 
 sion Railway and Land Company, Smallpage and Brandon, hire, 
 30 Ch. D. 598, Pearson, J. Voinet v. Barrett, 55 L. J., Q. B. 39; 
 34 W. R. 161, C. A., affirming on this point 54 L. J., Q. B. 521; 
 1 C. & E. 554, Wills, J. 
 
 Husband and Wife. 
 
 [147.] WENMAN v. ASH. 
 
 [13 C. B. 836 (1853.)] 
 
 Mr. Ash, an old gentleman of eighty-two, wrote a let- 
 ter to Mrs. "Wenrnan, a lady with whom he had lately 
 been lodging, and said that, though he entertained 
 the profoundest respect for herself, her husband was 
 an unmitigated scoundrel, and had stolen some receipts 
 out of his portmanteau. Mrs. AVenman showed the 
 letter to her husband, and he brought an action for 
 libel. For the defence it was contended that there was
 
 HUSBAND AND WIFE. 391 
 
 no publication to a third person, husband and wife be- 
 ing one flesh. It was decided, however, that there 
 was, for though it is true that for some purposes hus- 
 band and wife are one person yet for others they are 
 not. 
 
 The old common doctrine was that husband and wife (baron Common law 
 and feme) were one person, and that one person the husband; doctrine as to 
 and the consequences of that doctrine have been until very re- husband and 
 cently of extreme importance. A married woman, for instance, v>1 " 
 could not as a general rule contract or hold property; she could 
 not sue alone; she was not capable of taking a gift from her hus- 
 band; and, even at the present day, she is not responsible for 
 certain criminal offences if committed in her husband's presence, 
 nor can she, except under certain special circumstances, be a wit- 
 ness in a criminal trial for or against him. Wcnman v. Ash, Limitation to 
 however, is an authority to show that there is some limitation to be placed on 
 be placed even on the old common law rule. "* e common 
 
 Moreover, an Act (b) passed for the purpose of consolidating 
 and amending the laAv relating to the property of married wo- Married 
 men has introduced the most extensive and sweeping changes, *' omen s 
 
 l"*F()T)Crt V 
 
 placing the wife in very much the same position as the husband . ' jqXj, 
 so far as regards the acquisition and tenure of property. The 
 date of the commencement of the Act is the 1st January, 1883, 
 and its chief provisions may be thus summarised: — 
 
 A married woman may acquire and dispose of any property as Principal 
 her separate property in the same manner r.s if she were a feme provisions. 
 sole; she is, too, liable and has rights in contract or in tort in re- 
 spect of the same precisely as though she were unmarried, and if 
 she carries on a trade separately from her husband she is subject 
 to the bankruptcy laws. As to what constitutes this separate Meaning of 
 property, it is provided that a woman married after the Act is to separate 
 have all such property as belonged to her at the time of marriage; " i J- 
 whilst, whether married before or after the Act, she is to hold as 
 her separate property all such possessions as may now he ac- 
 quired by or devolve upon her during coverture (c), "including 
 any wages, earnings, money, and property gained or acqinred by 
 her in any employment, trade, or occupation in which she is 
 engaged, or which she carries on separately from her husband, or 
 by the exercise of any literary, artistic, or scientific skill." 
 
 In a case (d) turning on the construction of similar words in an Lovell v. 
 Act now repealed, where a drunken husband's creditors had Newton, 
 seized certain stock-in-trade which an industrious wife said was 
 
 (b) Married Women's Prop- (c) Sec. 2. 
 ertv Act, 1882 (45 & 46 Vict, (ri) Lovell v. Newton, 4 C. 
 c. 75). P. D. 7.
 
 392 HUSBAND AND WIFE. 
 
 hers, Denman, J., observed: "Looking at the substance and in- 
 tention of the Act, which was to protect the fruits of the talent 
 and industry of married women from being made liable for the 
 debts of their husbands, and having a decision of the Court of 
 Appeal that stock-in-trade is included within the term ' earn- 
 ings,' I think we are fully justified, acting as a jury, in holding 
 that Mrs. Newton was carrying on this business separately from 
 her husband, so as to protect the goods in question from being 
 seized for his debt. I wish it to be understood that the only law 
 we decide is that the mere fact of the husband living in the 
 house at the time the business is so being carried on does not 
 deprive the wife of the protection afforded her by the Act." 
 Married So far as the protection and security of her own separate prop- 
 
 woman same erty are concerned, a married woman has now the same civil 
 civil reme- remedies as though the property belonged to her as a feme sole; 
 , lh * but, except in actions so arising, no husband or wife is entitled 
 
 to sue the other for a tort (e). 
 
 Criminal So, t°°> * ne wife now possesses all remedies and redress by way 
 
 remedies and of criminal proceedings for the protection of her separate prop- 
 liability ol erty; but it is provided "that no criminal proceeding shall be 
 
 taken by any wife against her husband by virtue of this Act 
 woman. J J & J 
 
 while they are living together, as to or concerning any property 
 
 claimed by her, nor while they are living apart, as to or concern- 
 ing any act done by the husband while they were living together, 
 concerning property claimed by the wife, unless such property 
 shall have been wrongfully taken by the husband when leaving 
 or deserting, or about to leave or desert, his wife" (/). There 
 Is, too, an important provision extending the criminal liability 
 of the wife: "A wife doing any act with respect to any property 
 of her husband, which, if done by the husband with respect to 
 the property of the wife, would make the husband liable to crim- 
 inal proceedings by the wife under this Act, shall in like man- 
 ner be liable to criminal proceedings by her husband " [g). 
 Provisions as The statute, moreover, contains provisions as to the wife's ante- 
 to ante-nup- nuptial debts and liabilities. They are too elaborate to be here 
 tial debts and explained in detail, but they amount to this; viz., that the sepa- 
 rate estate of the wife is primarily liable to discharge such debts 
 and liabilities, whilst a secondary liability attaches to such prop- 
 erty as the husband has acquired through or from his wife. 
 This, however, is not to affect the position of persons married be- 
 fore the commencement of the Act, except as to any separate 
 property to which the wife may become entitled by virtue of the 
 Act (h). 
 
 (e) Sec. 12. the position of parties married 
 
 (/) Sec. 12. before the Act, see 33 & 34 Vict. 
 
 (ff) Sec. lfi. • c. 93, s. 12, and 37 & 38 Vict. 
 
 (h) Sees. 13 and 14. As to c. 50.
 
 HUSBAND AND WIFE. 393 
 
 It may be added that there is provision made for the settle- Summary 
 
 merit of disputes arising between husband and wife as to property j urisdiction 
 
 in a summary manner before a judge of the High Court or of the in disputes. 
 
 District County Court (i); and a woman with separate estate is Maintenance 
 
 now liable to the parish fjr the maintenance of her husband and ? P au P er 
 
 hushandor 
 children (A). child. 
 
 It is doubtful whether adultery by a husband, which has been Adultery 
 condoned by the wife is a bar to his obtaining a dissolution on condoned, 
 the ground of subsequent adultery of the wife (/). 
 
 A judicial separation was decreed in a case where the wife had Desertion by 
 deserted the husband for two years and upwards without rea- wife, 
 sonable cause (m). 
 
 In Blandford v. Blandford the husband having been guilty of Desertion 
 desertion and adultery the wife forgave him, and they returned revived by 
 to cohabitation. He subsequently committed adultery. It was 8U bsequent 
 held by the court that the subsequent adultery revived the de- 
 sertion and that the wife was entitled to a dissolution of the 
 marriage (»). 
 
 In King v. Lucas, by a post-nuptial settlement made in pur- Wife's sepa- 
 suance of ante-nuptial articles, certain policies of insurance on rate estate, 
 the life of the husband were assigned to trustees upon trust to 
 receive the money and pay the income to the wife during her 
 life for her separate use, independently of any future husband 
 whom she might marry. There was no restraint upon anticipa- 
 tion. During the life of her first husband the wife made promis- 
 sory notes in favour of the plaintiff, and the plaintiff, the first 
 husband being still alive, brought an action claiming a charge 
 upon the policies. . The court held that the trust for separate use 
 did not arise till after the death of the husband, and that as the 
 contracts of a married woman can only be enforced against prop- 
 erty which formed part of her separate estate at the date of the 
 contract, the action could not be maintained (o). 
 
 Married women suing as plaintiffs without their husbands be- Security for 
 ing joined are not liable to give security for costs (p). costs. 
 
 When a married woman shall have been, or shall be, deserted p aU p er 
 by her husband, and shall, after his desertion, reside for three settlement, 
 years in such a manner as would, if she were a widow, render 
 her exempt from removal, she shall not be liable to be removed 
 
 (i) Sec. 17. 216; 31 W. R. 904, C. A. ; and 
 
 (k) Sees. 20 and 21. see Gaffer, In re (1 Mac & G. 
 
 (?) Rose v. Rose, 8 P. D. 98; 541), Molyneux's Estate, In re 
 
 52 L. J. P. 25; 48 L. T. 378; 31 (I. R. 6 Eq. 411) and Sturgis v. 
 
 W. R. 573, C. A. Corp (13 Ves. 190). 
 
 (m) Millar v. Millar, 8 P. D. (p) Threlfall v. Wilson, 8 P. 
 
 187 ; 32 W. R. 95, D. D. 18; 48 L. T. 238 ; 31 W. R. 
 
 (n) 8 P. D. 19; 52 L. J. P. 17; 508 ; 47 J. P. 279 D.; and see 
 
 48 L. T. 238; 31 W. R. 508, D. Leverance ». Civil Service Sup- 
 Co) 23 Ch. D. 712 ; 49 L. T. ply Association, 48 L. T. 485.
 
 394 
 
 HUSBAND AND WIFE. 
 
 Maintenance, 
 
 Poverty ex- 
 cuse for 
 
 delay. 
 
 Bigamy- 
 
 Actions ol 
 married 
 
 women. 
 
 Non-access. 
 
 from the parish where she shall he resident unless her husband 
 return to cohabit with her (q). 
 
 A husband is not liable to be ordered under 31 & 32 Vict., c. 
 122, s. 33, to maintain a wife with whom he has ceased to co- 
 habit in consequence of her adultery (r). 
 
 When poverty was urged as an excuse why a dissolution of 
 marriage was not previously sought for, it was decided to be a 
 reasonable explanation (s). 
 
 It was decided that when a husband, believing his wife dead, 
 married again, and discovered subsequently that his wife was 
 alive, and guilty of adultery, he was entitled notwithstanding 
 the bigamy he had committed, to a dissolution of the first mar- 
 riage (/). 
 
 A married woman married before 1st January, 1882, may bring 
 and maintain an action in her own name alone after the com- 
 mencement of the Married Women's Property Act, 1882, for torts 
 committed against her property before the Act came into opera- 
 tion: and since its coming into operation the previous leave of 
 the court or a judge is no longer necessary («)• 
 
 A marriage settlement made in 1862 contained an agreement 
 for the settlement of any future acquired property of the wife to 
 a specified amount except interests settled and limited to her 
 separate use. The wife after the commencement of the Married 
 Women's Property Act. 1882, became entitled absolutely to a be- 
 quest above the specified amount without any limitation as to 
 separate use. The court held that by the 19th section of the 
 above Act the marriage settlement was exempted from the 5th 
 and other sections: and that the bequest to the wife came within 
 the covenant to settle future acquired property and must be 
 dealt with as if the Act had never been passed (x). 
 
 In Hawes v. Draeger, a testator bequeathed government annui- 
 ties upon trust for his daughter C. for life and after her decease 
 for her children equally. C. married H. G. and by him had two 
 children at the time when H. G. deserted her and his family. C. 
 went to live with a man named J. H. and while living with him 
 had five children the eldest of whom was M. who was, according 
 to the evidence, born during the lifetime of H. G. M. claimed 
 a share of the fund. The court held that considering all the cir- 
 cumstances from which non-access between the husband and wife 
 
 iq) The Queen v. Cookham 
 Union, 9 Q. B. D. 522. 
 
 (r) Cudey v. Charman, 7 Q. 
 B. D. 89. 
 
 (s) Mason v. Mason, 8 P. D. 
 21;52L. J. P. 27;48L. T. 290; 
 31 W. R. 361. 
 
 (0 Frugard v. Frugard, 8 P. 
 
 D. 186; 52 L. J. P. 100 ; 32 W. 
 R. 95, D. 
 
 («) James v. Barraud, 49 L. 
 T. 300; 31 W. R. 786, D. 
 
 (.r) Storror's Trusts, In re, 24 
 Ch. D. 195 ; 52 L. J. Ch. 776 ; 
 48 L. T. 963, Pearson, J.
 
 HUSBAND AND WIFE. 395 
 
 might be inferred the presumption of the legitimacy of M. wasrc- 
 buttetl, and that she was not entitled to any share of the fund (y). 
 
 By 47 Vict. c. 14, husbands and wives are made competent wit- 
 nesses in criminal proceedings under 45 & 46 Vict. c. 75. 
 
 A woman being executrix and residuary legatee married in Evidence. 
 1880. She had discharged all her duties qua executrix save that 
 she had not obtained payment of a sum of money which fell due 
 to her testator's estate iu September, 1870, for which sum she 
 brought an action in 1883. The court held that the wife's title 
 qua legatee accrued before the Married Women's Property Act, 
 1882, came into operation and that the husband was entitled to 
 this money jure mariti (z). 
 
 A husband is not liable under the Married Women's Property Liability- of 
 Act. 1870, Amendment Act, 1874, after his wife's death for her husband, 
 debts contracted before the marriage («). 
 
 The Married Women's Property Act, 1874, s. 5, enacts that "Any subse- 
 when a husband after marriage has a judgment bond fide, recov- quent 
 
 • i(*f l Oil 
 
 ered against him in any action brought under the Act to recover 
 a debt of the wife contracted before marriage, "then to the ex- 
 tent of such judgment the husband shall not in any subsequent 
 action be liable." It was decided that the words "any subsequent 
 action" mean any action commenced subsequent to the time of 
 bringing the action in which judgment has been recovered and 
 not merely any action commenced subsequently to the recovery 
 of the judgment (b). 
 
 Under the Married W T omen's Property Act, 1882, the old rule Gift to hus- 
 of law that husband and wife were for most purposes one person band, w^l'e, 
 
 so that under a gift by will to a husband and wife and a third am ur< 
 
 ° J person, 
 
 person, the husband and wife took only one moiety, between 
 
 them, the third person taking the other moiety, is no longer ap- 
 plicable to such a gift under a will that has come into operation 
 since the commencement of that Act (c). 
 
 A bequest to a married woman of real and personal property g e p ara t e 
 "for her absolute use and benefit" is sufficient to create a sep- estate, 
 arate estate (d). 
 
 Where a woman married when proceedings were pending be- • 
 tween her and others, which resulted after her marriage in a 
 statutory debt being created, the court decided that her separate 
 property was chargeable with the payment of such debt (e). 
 
 A charge given by a married woman upon her separate estate . 
 
 (y) Hawes v. Draeger, 23 Ch. (b) Fear v. Castle, 8 Q. B. D. 
 
 D. 173 ; 52 L. J. Ch. 449 ; 48 L. 380. 
 
 T. 518 ; 31 W. R. 576, Kav, J. (c) In re March, Mander v. 
 
 (z) Edwards v. Edwards,' 1 C. Harris, 24 Ch, D. 222. 
 
 & E. 229, Mathew, J. (d) Negus v. Jones, 1 C. & E. 
 
 (a) Bell v. Stacker, 10 B. Q. 52 Williams, J, 
 
 D. 129 ; 52 L. J. Q. B. 49 ; 47 (e) London, Mayors. Brooke, 
 
 L. T. 624 , 31 W. E. 183 ; 47 J. 1 C. & E. 169 Pollock, B. 
 P. 8, Field, J
 
 396 
 
 HUSBAND AND WIFE. 
 
 Joinder of 
 
 husband. 
 
 Petty Ses- 
 sions. 
 
 Payment by 
 husband. 
 
 Bill of sale. 
 
 is sufficient evidence of the existence of separate e?tate to entitle 
 a plaintiff, with whom she has contracted, to an inquiry (/). 
 
 A married woman is entitled under the Married Women's 
 Property Act, 1882, s. 1., subs. 2, to bring an action in respect of 
 a tort committed upon her during coverture before the commence- 
 ment of the Act without joining her husband as plaintiff (g). 
 
 The Married Women's Property Act, 1882. does not enable a 
 married woman to bring an action for an assault committed upon 
 her during coverture before the passing of the Act without join- 
 ing her husband (/;). 
 
 Magistrates at petty sessions have power toorder a judicial sep- 
 aration for an aggravated assault, even although they only inflict 
 the penalty of fine or imprisonment for a common assault (/). 
 
 A husband is entitled to maintain an action against his wife and 
 to charge her separate property for money lent by him to her after 
 their marriage, and for money paid by him for her after their mar- 
 riage at her request made before or after their marriage ; but he 
 is not entitled, even since the Married Women's Property Act, 
 1882, to maintain any action against her for money lent to her, 
 or money paid for her before their marriage at her request (k). 
 
 Upon a judgment against a husband and wife jointly, certain 
 household furniture was taken in execution at the house where 
 they resided. On an interpleader issue to try the title to such fur- 
 niture as between the execution creditors and claimants it ap- 
 peared that before the marriage the husband had executed a deed 
 declaring that the goods in question, which then belonged to the 
 wife, should, after the marriage, continue to belong to her for 
 her sole and separate use. The wife assigned the goods to the 
 claimants by a bill of sale, made prior to the execution, and duly 
 registered under the Bills of Sale Acts, 1878 and 1882, to which 
 the husband was no party. The court held that the bill of sale 
 executed by the wife was valid under the Bills of Sale Acts', and 
 that the claimants were entitled to the goods as against the exe- 
 cution creditors (?). 
 
 (/) London Alliance Discount 
 
 Co. v. Kerr, 1 C. &E. 5, Cave, J. 
 
 (g) Weldon v. Winslow, 13 Q. 
 
 B. I>. 784 , 53 L. J. Q. B. 528, 
 
 C. A. 
 
 (h) Weldon v. Riviere, 53 L. 
 J. Q. B. 448, D. (see preced- 
 ing case. ) 
 
 (t) Wood v. Wood, 10 P. D. 
 
 172 ; 33 W. R. 323, D. 
 
 (k) Butler v. Butler. 14 Q. B. 
 D. 831, 1 C. &E. 600: Wills, J. 
 affirmed 53 L. J. Q. B. 55 ; 34 
 W. R. 132, C. A. ; and see 16 Q. 
 B. D. 374. 
 
 (/) Walrond v. Goldmann, 16 
 Q. B. D. 21.
 
 PRESUMPTION OF DEATH. 39T 
 
 Presumption of Death after Seven Years'' Ab- 
 sence. 
 
 NEPEAN v. DOE. [148.] 
 
 [2 M. & W. 894 (1837).] 
 
 The effect of this case is that when a person goes 
 abroad and is not heard of for seven years the law pre- 
 sumes him to be dead, unless the circumstances of the 
 case are such as to account for his not being heard of 
 without assuming his death, but does not presume that 
 he died at any particular period during those seven 
 years. 
 
 Distressing cases, leading to litigation, occasionally arise where Cas e of seve- 
 whole families have perished by the same calamity. One well- ral perishing 
 known case on the subject is Wing v. Angrave (m), where a hus- by same 
 band, wife, and children were all washed away by the same ca ami ^' 
 wave. 
 
 In the Roman law, if a father and son died under such circum- Roman law. 
 stances it was presumed that the son died first if he was under 
 the age of puberty, but if he was over that age that the father 
 died first; the principle being that the father would probably be 
 the stronger of the two in the former case, and the son in the lat- 
 ter. We have no presumptions of this kind, and when a similar No presump- 
 case arises we call on a claimant, by survivorship, to give affirm- tion in Eng- 
 ative proot of what he asserts. ls l a ^ v ' 
 
 The meaning of "not being heard of for seven years" was Meanine of 
 much discussed in the case of the Prudential Assurance Com- "not being 
 pany v. Edmonds (»);. and although there was considerable dif- heard of." 
 ference of opinion on the special circumstances of that case,it may 
 be taken as clear that there is no absolute and positive rule of 
 law that a mere physical hearing would put an end to the pre- 
 sumption of death. " Not being heard of" means this: that en- 
 quiry has been made, and that no member of the family has 
 heard anything about the missing man which might raise a rea- 
 sonable doubt in their minds whether he must have been no 
 more. This, however, is not a complete and comprehensive ex- 
 planation, because, even if a statement creating a reasonable 
 doubt has been made to the family, and the foundation of such 
 
 (m) 8 H. L. C. 183. (n) 2 App. Ca. 487. 
 
 27 COMMON LAW.
 
 398 
 
 PRESUMPTION OF DEATH. 
 
 Case of 
 Prudential 
 Assurance 
 Co. v Ed- 
 monds. 
 
 No presump- 
 tion as to 
 time of death. 
 
 In re Phene's 
 Trusts. 
 
 In re Cor- 
 bishley's 
 Trusts. 
 
 Conflicting 
 presump- 
 tions in 
 bigamy 
 cases. 
 
 statement is subsequently disproved, then of course it will go for 
 nothing, and the presumption of death will, in the absence of 
 further evidence, arise. 
 
 Thus, in the case last mentioned, a member of the family 
 stated that on one occasion during the seven years she saw a man 
 whom she believed to be the missing one, but before she could 
 speak to him he was lost in the passing crowd. This circum- 
 stance she at once communicated to her relatives; but it was 
 held that the presumption of death would not thereby be rebut- 
 ted, unless the jury found as a fact that she was not mistaken in 
 her identification. 
 
 The question at what time within the period of seven years the 
 lost man died is not a matter of presumption, but of evidence, 
 and the onus of proving that the death took place at any partic- 
 ular time lies upon the person who claims a right to the estab- 
 lishment of which that fact is essential. Thus, in a well-known 
 case (o), a testator died in January, 1861, having bequeathed his 
 residuary estate equally between his nephews and nieces. One 
 of the nephews had gone to America many years before, and was 
 last heard of as alive in June, 1860. In the year 1869 his per- 
 sonal representative sought to establish his title to the share of 
 the missing one; but the attempt was unsuccessful, for although 
 there was a presumption that the lost man was dead at the time 
 of the application in 1869, there was no presumption that he was 
 alive at the time of the testator's death, and therefore no evi- 
 dence that he was ever entitled to any share at all. There is no 
 presumption of law in favour of the continuance of life, though 
 an inference of fact may clearly be legitimately drawn that a 
 person alive and in health on a certain day was alive a short time 
 afterwards. 
 
 It is important to observe that where the missing person does 
 not take a share under a will, as In re Phene's Trusts, but under 
 a settlement containing a trust in his favour, a different rule 
 would appear to apply. In the case of a settlement containing a 
 trust for a person named, such person must, at any rate accord- 
 ing to Hall, V.-C. (p), "until the contrary is shown, be taken to 
 have been in existence at the date of that settlement. The trust, 
 then, being so created, the representative of that person (he be- 
 ing dead) is entitled to the benefit of that trust until those who 
 say that the trust failed altogether prove such failure by affirma- 
 tive evidence." 
 
 A somewhat curious case (q) of conflicting presumptions re- 
 cently came before the Court of Crown Cases Reserved. A mar- 
 riage admitted to be valid, was contracted by the prisoner in 
 1864; there was evidence that the woman then married to the 
 
 (o) In re Phene's Trusts, L. L. J. 49 Ch. at p. 267. 
 R. 5 Ch. Ap. 139. (q) Reg. r. Willshire, L. E. 
 
 (p) In re Corbishley's Trusts, 6 Q. B. D. 366.
 
 ESTOPPEL. 399 
 
 prisoner was alive in 1868. In 1879 the prisoner went through 
 the ceremony of marriage with another woman, and again, in 
 1880, with a third, and \v;is thereupon indicted for bigamy. The 
 wife alleged in the indictment to be alive at the time of the com- 
 mission of the offence was the one with whom the prisoner had 
 gone through a form of marriage in 1879. It was held that on 
 these facts the prisoner ought not to have been convicted, as the 
 jury had not found affirmatively that the wife married in 1864 
 was dead at the time of the celebration of the marriage in 1879. 
 It is true that, if nothing was heard of the first woman after 
 1808, the prisoner could not have been convicted of bigamy in 
 respect of the marriage of 1879 ; but, so far as the charge under 
 the consideration of the court was concerned, it was held that 
 "there was a presumption that her life continued. The only 
 evidence to the contrary was that the prisoner presented himself 
 as a bachelor to be married in 1879. Whether that would have 
 satisfied the jury that his former wile was then dead was a ques- 
 tion for them to decide, but it was not left to them for decision " 
 ('■)• 
 
 Money was payable to a tenant pur autre vie under a policy, Evidence of 
 after proof, to the satisfaction of directors, of the cestui que vie. death. 
 An order was made under (i Anne, c. 72, that the cestui que vie 
 ought to be deemed and taken to be dead under the statute and 
 the remaindermen entered. The court held that the directors 
 might reasonably require further evidence of the death of the 
 cestui que vie (s). 
 
 Estoppel. 
 
 DUCHESS OP KINGSTON'S CASE. [149.] 
 
 [20 How. St A. TBI. (1776).] 
 
 This was a prosecution for bigamy, and the judges 
 were required to answer the following questions : — 
 
 (1.) If a spiritual court decides that a marriage is 
 null and void, is its decision so conclusive on the sub- 
 
 (r) Per Sir Henry Hawkins. 527 ; 50 L. T. 323 ; 32 W. R. 
 (s) Doyle v. City of Glasgow 476 ; 48 J. P. 374, North, J. 
 Life Assurance Co. , 53 L. J. Ch.
 
 400 ESTOPPEL. 
 
 ject that the marriage cannot bo proved against one of 
 the parties in an indictment for bigamy ? 
 
 (2.) Supposing the spiritual court's decision is final, 
 may counsel for the prosecution destroy its effect by 
 showing that it was brought about by fraud and col- 
 lusion. 
 
 The first question was answered in the negative, so 
 that it did not much matter what the answer to the 
 second was. That question, however, the judges an- 
 swered in the affirmative. 
 
 [150. 
 
 YOUNG v. GROTE. 
 [ 1 BlNG. 253 (1827).] 
 
 Mr. Young when he went away from home used to 
 leave blank cheques signed for Mrs. Young to fill up 
 according to her necessities. But on one occasion Mrs. 
 Young did it so clumsily that an enterprising bearer was 
 able to alter "50" to " 350," and "fifty" to "three 
 hundred and fifty," and get the cheque cashed in its 
 improved form. On these facts, Mr. Young was held 
 to be estopped by his negligence from throwing the loss 
 on his bankers. 
 
 Various 
 kinds of 
 estoppel. 
 
 Estoppel by 
 record. 
 
 Estoppels I which Lord Coke considered "a curious and excel- 
 lenl sorl of learning,") are of three kinds : — 
 1. By mat i it of record. 
 
 '.'. By deed. 
 
 ::. By conduct (otherwise known as in pais). 
 
 i. Generally, when the parties are the same, and the point 
 litigated the same, a former' judgment recorded is conclusive. 
 Thus, if a record in a former action is tendered in evidence, the 
 other side cannot be permitted to show that the officer of the 
 
 court made a mistake ami entered the verdict On the tvrong plea 
 (t). So, too, if. in an action of trespass by .Jones against Brown, 
 an issue is taken on the plea that the. laud belongs to Brown, and 
 
 (t) Read v. Jackson, 1 East, Norton v. Levy; 48 L. T. 703; 
 
 355;'andsee Peareth v. Mar- 31 W. R. 720.— Pollock, B.; 
 
 riott. 22 Ch. I). 182; 52 L. J. also see /„ re May, 25 Ch. D. 
 
 Ch. 22] : 18 L. T. 170 ; 31 W. 231 ; 32 W. R. X. J7.— Pearson, 
 
 R. 68, C. A. : and I ten Les, in re, J.
 
 ESTOPPEL. 401 
 
 final judgment is entered on-this issue in favour of Jones. I'.rown 
 cannot, in a subsequent action against the Bame defendant for 
 trespass by digging up coals in the same land, plead that the 
 land is his and Jones's («), But if a plaintiff sues in a different 
 
 right in the second action from what he did in the first [e.g. t if 
 the administratrix of a person who has been killed by the negli- 
 gence of a railway company sues first under Lord Campbell's 
 Act. and then, in another action, for damage to the personal es- 
 tate) there is no estoppel (*). 
 
 It is to be observed that in an estoppel by record, not only the 
 parties to the action themselves, but their privies also {i.e., those 
 who claim under them) are (stopped. But, although a judgment Judgment 
 is conclusive proof as against everybody of the existence of that not conelu- 
 Btate of things which is the legal effect of the judgment, vet, on Slve as *° 
 
 the principle res inter alios acta aiteri nocere non potest, it is not, , » ' * ! 
 
 1 r to grounds on 
 
 so far as strangers are concerned, conclusive proof of the facts which it is 
 
 stated to be the grounds on which it is based. How far a judg- based, 
 inent is conclusive as between parties and privies of facts form- 
 ing the ground of the judgment may. perhaps, be a question ad- 
 mitting of some doubt. Mr. Justice Stephen, in his Digest of How far this 
 the Law of Evidence, says (y) : "Every judgment is conclusive applies to 
 proof as against parties and privies of facts directly in issue in P 8 ^ 68 ;uul 
 the case actually decided by the court, and appearing from the statement of 
 judgment itself to be the ground on which it was based : unless l aw by 
 evidence was admitted in the action in which the judgment was Stephen, J. 
 delivered which is excluded in the action in which that judg- 
 ment is intended to be proved." Vice-Chancellor Knight Bruce, y o 
 however, expressed his opinion on the subject thus (z) : " It is, Knight 
 I think, to be collected that the rule, against re-agitating mat- Bruce's 
 ter adjudicated, is subject generally to this restriction — that, °P imon - 
 however essential the establishment of particular facts may be 
 to the soundness of judicial decision, however it may proceed on 
 them as established, and however binding and conclusive the de- 
 cision may be as t > its immediate and direct object, those facts 
 are not all necessarily established conclusively between the par- 
 ties and that either may again litigate them for any other pur- 
 pose as to which they may come in question : provided the im- 
 mediate subject of the decision be not attempted to be with- 
 drawn from its operation so as to defeat its direct object." These 
 remarks were quoted with approval by Selborne, L.C., in a very jj 
 recent ease „). [ n which the facts were these: An application w ^, h - n 
 to justices by a local board to recover a proportion of sewering 
 expenses- from the owner of premises abutting on the street in 
 which the sewer had been laid, was dismissed by the just ices on 
 the ground that the street was a highway repairable by the in- 
 
 [«) Out ram r. Morewood, 3 (z) 2 -Sm. L. C. (7th ed.), p' 
 
 East, 346. 807. 
 
 in Leggott r. c.N. Ky. Co., (a) Reg. v. llutchings. 6 Q. 
 
 45 L. J.. Q. B., 557. B. D. 300. 
 
 (y).3rd ed., p. 49.
 
 402 
 
 ESTOPPEL. 
 
 Fraud or 
 collusion 
 
 may be 
 proved. 
 
 Estoppel by 
 
 deed. 
 
 Estoppel in 
 
 habitants at large. Some years afterwards the local board made 
 a similar application against the same person in respect of the 
 same premises. The Court of Appeal (reversing the decision of 
 tin- Queen's Bench Division), held that, under these circum- 
 stances, the adjudication on the first application did note-stop 
 the local board from claiming the expenses they claimed on the 
 second application. The ground of this decision would seem to 
 be that the justices exceeded their jurisdiction in stating the 
 reason on which their dismissal of the application had been 
 based ; and, if they had merely found, as they ought to have 
 done, that the complaint of the local board was not proved, the 
 order of dismissal could not have operated as an estoppel except 
 against a repetition of the same demand for the same quota of 
 expenses. 
 
 it is to be observed that when a judgment is put in evidence 
 the person against whom it is offered may prove that it was ob- 
 tained by any fraud or collusion to which neither he, nor any 
 one to whom he is a privy, was a party. Thus, it was held Aery 
 recently (b) that it is a good defence to an action on a foreign 
 judgment, that such judgment was procured by the fraudulent 
 misrepresentation of the plaintiff. 
 
 2. To execute .a deed is a very solemn thing, and therefore 
 whatever assertion a man has made in his deed he must stand 
 by. If you execute a bond in one name, you are estopped from 
 pleading that your name is otherwise. So, though a person who 
 has given an ordinary receipt may show that he has never really 
 received the money, a person who has given a receipt under seal 
 cannot. And the recitals in a deed are just as binding as any 
 other part. " I do not see," said a judge once, "that a state- 
 ment such as this is the less positive because it is introduced by 
 a ' Whereas.' " 
 
 Two qualifications of the doctrine of estoppel by deed must he 
 remembered : — 
 
 (1.) Although a person acknowledges in his deed that he has 
 received the consideration money for the service he undertakes 
 to perform, he may nevertheless show that as a matter of fact he 
 has not received it. 
 
 (2.) A person who is sued on his deed may show that it is 
 founded on fraud or illegality, and. if he proves it, the document 
 becomes worthless (e). The great case on this subject is Collins 
 v. Blantern, which might be glanced at (ante). 
 
 3. The doctrine of estoppel by conduct as extracted from 
 Pickard v. Scars (d) and Freeman v. Cooke (r) may, without at- 
 tempting scientific precision, be thus stated : — 
 
 "Where one person by his words or conduct represents a certain 
 
 >> Abouloffv. Oppenheimer, 
 
 •17 1.. -J'.. \. >.. 325. 
 (c) P. 130. 
 
 d 6 A. el- F. 469. 
 - 2 Ex. 654.
 
 ESTOPPEL. 403 
 
 state of tilings to exist, and thereby induces — no matter whether 
 he intended it or not — another to alter his position, that other is 
 not to be prejudiced by the perfidy or fickleness of the first per- 
 son. 
 
 Loftus r. Maw (/) is rather an extreme illustration of perhaps 
 doubtful authority. An old gentleman induced a niece to come 
 and live with him and nurse his old age by promising to remem- 
 ber her in his will. But the old deceiver did not remember her. It 
 was held, however, in an action against the executors, that he 
 was estopped from omitting to make some provisions for her, as 
 she had altered her position in consequence of his representations. 
 
 In the recent case of Alderson v. Maddison, which was an action Alderson v 
 by the plaintiff, as heir-at-law of Alderson, to recover the title Maddison. 
 deeds of a farm, the defendant counterclaimed that she was en- 
 titled to a life estate in the farm. It appeared that the defend- 
 ant was induced to serve Alderson (who died intestate) as his 
 housekeeper for many years, and to give up other prospects of 
 establishment in life, by a verbal promise that Alderson would 
 leave her a life interest in the farm. But, as was there pointed . 
 out, to contend that Alderson's heir-at-law was estopped by Alder- 
 son's conduct from disputing the validity of an attested docu- 
 ment, which purported to be Alderson's will, would be. to repeal 
 the Statute of "Wills. Lord Selborne said : "I have always un- 
 derstood it to have been decided that the doctrine of estoppel by 
 representation is applicable only to representations as to some 
 state of facts alleged at the time actually in existence, and not to 
 promises de futuro, which, if binding at all, must be binding as 
 contracts " (ff). 
 
 But there are other cases of estoppel by conduct besides those o+Viot. „„„„„ 
 on the principal of Pickard v. Sears and Freeman v. Cooke. A f estoppel 
 tenant, for instance, is estopped from disputing his landlord's by conduct, 
 title, and the accepter of a bill of exchange from denying the sig- 
 nature of the drawer or his capacity to draw ; and a young gentle- 
 man who takes rent after he becomes of age is estopped from de- 
 nying that the person he takes it from is his tenant. A recent 
 case of some importance is Harris v. Truman, Hanbury & Co (If, Harris v. 
 where the defendants had employed one Fairman to buy barley, Truman, 
 and to malt it for them only. Fairman. for the purpose of pur- Hanbury & 
 chasing such barley, was empowered to draw upon a fund paid 
 into a bank by the defendants. Fairman, having bought barley 
 upon credit, and at the same time, fraudulently drawn out money 
 from the fund so supplied by the defendants, became bankrupt, 
 and the defendants thereupon seized all the barley and malt upon 
 
 (/) L. J.~32Ch. 49. 10 C.P. ; Scarf p. Jardine, 7 App. 
 
 (g) 8 App. Cases 473 ; 52 L. Cases, and Fell v. Parkin, 47 L. 
 
 J. Q. B. 737; 49 L. T. 303; 31 T.,-N. S., 350; 52 L. J. Q. B. 
 
 W. R. 820 ; 47 J. P. 821— per 99.— Mat hew J. 
 
 Selborne, L. C, and see Carr v. (h) L. J. 51 Q. B. 338. 
 L. & N. W. Railway Co., L. R.. 
 
 Co.
 
 404 
 
 ESTOPPEL. 
 
 Estoppel by 
 negligence. 
 
 Baxendale v. 
 Bennett. 
 
 Arnold v. 
 Cheque 
 
 Bank. 
 
 his premises, the value of which was less than the moneys which 
 he had drawn out. It was urged by the plaintiff, the trustee in 
 his bankruptcy, that the barley dishonestly bought by Fairman 
 was not bought for the defendants at all ; hut was bought with 
 the intention of selling it again. But, as Brett, L. J., observed, 
 "If Fairman had been plaintiff in this action it is impossible, 
 after he had represented to the defendants by the accounts that 
 all the barley at the malting was barley bought by him, and ap- 
 proved by the defendants, and to be paid for by them, and after 
 he had drawn upon the defendants' account for the price, that he 
 would not be estopped from saying that he had been defrauding 
 the defendants. If that be so, the trustee in bankruptcy who is 
 sueing upon the relation between Fairman and the defendants 
 would also be estopped from relying on the fraud of the bank- 
 rupt," 
 
 The case of Young v. Grote may be usefully remembered as an 
 illustration of estoppel by negligence — that is, of a kind of estop- 
 pel by conduct, viz., negligent conduct. On this subject there 
 has recently been a decision (i) of some importance. A person 
 named Holmes, becoming impecunious, asked the defendant for 
 his acceptance to an accommodation bill. Willing to oblige, the 
 defendant gave him his blank acceptance on a stamped paper, and 
 authorised him to fill in his name as drawer. Holmes, however, 
 finding that after all he did not require accommodation, returned 
 the paper to the defendant in the same state in which he had re- 
 ceived it from him. The defendant put it into a drawer which 
 he did not lock, and to which his clerk, laundress, &c, had access. 
 From this drawer it was stolen, and finally, after having had a 
 drawer's name put onto it, came into the-hands of the plaintiff 
 as indorsee for value. It was held in an action that the defend- 
 ant was not liable on this bill. Young v. Grote was distinguished 
 by Bramwell, L. J., from this case, on the ground that in the 
 former case the defendant had voluntarily parted with the in- 
 strument, while in the latter it had been got from him by the 
 commission of a crime. 
 
 In a rather earlier case (k), of some importance, it had been 
 held that "negligence in the custody of a craft, or in its trans- 
 mission by post, will not disentitle the owner of it to recover the 
 draft or its proceeds from one who has wrongfully obtained pos- 
 session of it," and that " negligence to amount to an estoppel 
 must be in the transaction itself, and be the proximate cause of 
 leading the third party into mistake, and also must be the neglect 
 of some duty which is owing to such third party, or to the gen- 
 eral public. 
 
 (t) Baxendale v. Bennett, 3 
 Q. B. 1). 525. 
 
 Arnold v. ( Iheque Bank, 1 
 C. P. D. 578, and See Swan v. 
 
 North British Australasian Co., 
 2 H. & C. 17"), and Garrard v. 
 Lewis, 10 Q. B. D. 30.
 
 ESTOPPEL. 405 
 
 In McKenzie v. British Linen Co. it was laid down that a per- McKenzie r 
 son wh > know-; that a bank is relying upon his forged signature British Linen 
 to a bill, cannot lie 1 iy and not divulge the fact until he sees the po- C°- 
 sit ion of the bank is altered for the worse. But there is no prin- 
 ciple on which his mere silence for a fortnight from the time 
 when he first knew of the forgery, during which the position of 
 the bank was in no way prejudiced or altered, can be held to be 
 an admission or adoption of liability or an estoppel. The names 
 of A. and B. appeared on a bill as drawers and endorsers to the 
 B. L. Co. The B. L. Co.'s Inverness Bank discounted it for C, 
 who signed it as acceptor. They had had no previous dealings 
 with A. or B. Being dishonoured when due notice to that ef- 
 fect Avas sent to A. and B. and received late on a Saturday, but 
 the}* did not communicate with the bank. On the following 
 Monday, being the 14th April, C. brought to the B. L. Co. a 
 blank bill with A. & B.'s names as drawers and indorsers, ap- 
 parently in the same handwriting as the previous bill. It was 
 agreed to accept it as a renewal of the previous bill, but for a less 
 amount, the difference being paid in cash by C. Three days be- 
 fore it was due, notice was sent to A. and B., and again, when it 
 was dishonoured, and then through the B. L. Co.'s law agent. 
 A fortnight after the first notice the B. L. Co. was informed for 
 the first time that A. and B.'s signatures were forgeries, and that 
 they declined to pay the amount in the bill. A. alleged that he 
 called on C. on the 14th April about the first bill, that C. ad- 
 mitted that he had forged his name, handed him the bill, and 
 solemnly assured him that it had been taken up by cash ; and so 
 assured he did not think it necessary to communicate with the 
 bank. He admitted that on that day he drank with C. and bor- 
 rowed £'4 of him. He denied positively any knowledge of the 
 second bill until he received the bank notices. C. was convicted 
 of the forgery. The B. L. Co. charged A. with payment of the 
 bill on the ground that he had either authorized the use of his 
 name, or had subsequently adopted, and accredited the bill, and 
 therefore was estopped from denying his liability. The court 
 held that on the facts proved, A. had neither authorized nor as- 
 sented t:> the use of his name : nor did the circumstances of the 
 case raise any estoppel against him (I). 
 
 The defendants received a consignment of wheat and issued a Coventry v. 
 delivery order for it, which came into the hands of B. Upon Great 
 
 this deliverv order B. obtained advances from plaintiffs. Shortly I'-astern 
 
 , . „ , . , , , .. , . Railway Co. 
 
 afterwards, the defendants issued a second delivery order in re- 
 spect of thesame consignment of wheat. The two delivery orders 
 were different, and such as might reasonably be supposed to re- 
 late to distinct consignments of wheat. Upon this second deliv- 
 ery order B. obtained further advances from the plaintiffs who 
 
 ■ {I) 6 App. Cases, 82; Dictum of Parke, B., in Freeman v. 
 Cooke approved of.
 
 406 
 
 ESTOPPEL. 
 
 i 'x parte 
 
 ! I ivies. 
 
 York Tram- 
 ways r. 
 Willows. 
 
 R >mford 
 Canal Co. 
 Pocock's 
 claim. 
 
 were under the belief that the delivery orders related to distinct 
 consignments of wheat. B. having afterwards become insolvent, 
 the court decided that the defendants were estopped by their 
 negligence from showing that the two delivery orders related 
 only to one consignment of wheat, and that they were liable to 
 compensate the plaintiffs for the loss sustained by them through 
 the advances to B. (m). 
 
 Although in certain cases a bailee may set up the just iertii, 
 yet if he accepts the bailment with full knowledge of an adverse 
 claim, he cannot afterwards set up the existence of such claim as 
 against his bailor (n). 
 
 In the York Tramways Company v. Willows, the plaintiff 
 company was constituted by seven persons signing the memo- 
 randum of association. Afterwards they all were summoned to 
 attend a meeting, but only four attended, and they elected three 
 directors. These three elected three other directors. The three 
 original directors resigned, and afterwards one of the remaining 
 directors sent in his resignation The defendant then applied 
 for fifty shares. The two remaining directors resolved that fifty 
 shares should be allotted to the defendant, that he should be ap- 
 pointed a director, and that the resignation of the retiring di- 
 rector should be accepted. The defendant afterwards attended a 
 meeting of directors, confirmed the allotment to himself, and 
 joined in passing a resolution, that the shares allotted to him- 
 self should be paid up in full forthwith. The defendant subse- 
 quently withdrew his application and refused to pay the amount 
 of the shares allotted to him. By the articles of association the 
 number of the directors was to be not less than three, and any 
 casual vacancy occurring in the board might be filled up by the 
 board, and the continuing board might act notwithstanding any 
 vacancy in their body. The court held that the defendant was 
 liable to pay the amount of the shares (o). 
 
 Where a company has power to issue legally transferable se- 
 curities and irregularities in the issue cannot be set up against 
 even the original holder if he has a right to presume omnia rite 
 acta. If such securities be legally transferable, such an irregu- 
 larity a fortiori any equity against the original holder cannot be 
 asserted by the company against a bond fide transferee for value, 
 without notice. Nor can such an equity be set up against an 
 equitable transferee whether the securities were transferable at 
 law <>r not. if by the original conduct of the company in issuing 
 ihe securities or by their subsequent dealing with the transferee 
 he has a superior equity. If the original conduct of the company 
 in issuing debentures was such that the public were justifh d in 
 treating it as a representation that they were legally transfer- 
 
 al) Coventry v. Great East- 
 ern Railway Co.. 11 Q. B. D. 
 776:52 L. J. Q.'B. 694 : 49 L. 
 T. 641 : C. A. 
 
 (n) Ex parte Davies ; In re 
 Sadler, 19 Ch. D. 86. 
 
 (o) 8 Q. B. D. 685.
 
 ESTOl'PEL. 407 
 
 able, there would be an equity on the part of any person who had 
 agreed for value to take ;i transfer of these debentures to restrain 
 the company from pleading their Invalidity, although that might 
 be a defence at law to an action by the transferor (j)). 
 
 After the creditors of a bankrupt have resolved under sec. 28 Ex purl* 
 of the Bankruptcy Act, 1809, to accept a composition offered by Bacon, 
 the bankrupt, the bankrupt, though undischarged, has a locua 
 standi to apply to the court to reduce the amount of the proof of 
 a creditor, and the mere fact that the proi >f has been upon thelileof 
 the proceedings in the bankruptcy for upwards of a year does not 
 estop the bankrupt from making the application. The file of the 
 proceedings in a bankruptcy is not in the nature of a record, and 
 does not create an estoppel (q). 
 
 Justices made an order in bastardy directing the putative lather Williams v. 
 to pay until the mother married, and the father accordingly made Davies. 
 payments, some of which were made within a year from the 
 birth. Afterwards the mother married, but her husband died, 
 and thereupon on her application justices made a second order on 
 the putative father to pay. The court decided that the matter 
 was res judicata, and therefore the order was invalid (r). 
 
 The plaintiff, who had obtained damages in the county court Clark v. 
 for a misrepi'esentation under which he had been induced to en- Yorke. 
 ter into a contract, brought an action in the High Court for fur- 
 ther damages accrued since judgment in the county court. It 
 was decided that a tort* not being a continuing cause of action, 
 no further damages could be obtained (s). 
 
 The plaintiff brought an action in the county court for dam- j> runs( j en v 
 age to his cab through the defendant's negligence, and having Humphreys, 
 recovered the amount claimed, brought an action in the divi- 
 sional court against the defendant claiming damages for personal 
 injury sustained by the plaintiff through the same negligence. 
 The court decided that inasmuch as the damages for personal in- 
 juries might have been claimed in the first action, the judgment 
 recovered in it was a bar to subsequent proceedings. This deci- 
 sion, however, was reversed in the court of appeal which held 
 the plaintiff was entitled to recover as the causes of action were 
 distinct (t). 
 
 (p) In re Eomford Canal Co., (s) Clarke v. Yorke, 52 L. J. 
 
 Pocock'sclaim,Trickett'sclaim, Ch. 32 ; -17 L. T. 381 ; 31 W. 
 
 Carew's claim, 24 Ch. D! 85. R. 62 ; Pearson, J. 
 
 {q) Ex parte Bacon, Inre Bond, (r) Brunsden v. Eumphrevs, 
 
 M Ch. I). 447, and see Keate v. 11 Q. B. D. 712 ; 52 L. J. Q. B. 
 
 Phillips, 18 Ch. D. 500, and 756 D.; 53 L. J. Q. 476 ; 51 L. 
 
 Harris v. Truman, 7 Q. B. D. T. 529 ; 32 W. R. 944 ; 49 J. P. 
 
 340 ; 9 Q. B. D. 204. 4 C. A ; and see Mills ». Mo 
 
 (r) Williams v. Davies, 11 Q. Ilraith, 8 A.pp. Cases, 120; 52 
 
 B. D. 74 ; 52 L. J. M. C. 87 ; L. J. P. C. 17 ; 48 L. T. 689; 
 
 47 J. P.; 581 D. 31 W. R. 591 P. C.
 
 40S 
 
 ESTOPPEL. 
 
 llorsl'all r. 
 Halifax. &C 
 
 Wogaa v, 
 Doyle. 
 
 Priestman v 
 
 Tliomas. 
 
 Reg. (.Brack 
 enridge. 
 
 Hall v. 
 West End Co. 
 
 Webster v. 
 Armstrong. 
 
 If A. makes a certain representation to B., who inconsequence 
 of that representation has done something which has altered his 
 position, A. would be bound Dy the representation, though ig- 
 norantly and innocently made (u). 
 
 In a recent Irish case the well-known principle of law, that a 
 tenant is estopped from denying his landlord's title is well il r 
 lust rated (.c). 
 
 In an action in the Probate division, L. and G. propounded an 
 earlier and P. a later will. The action was compromised, and, 
 by consent, verdict and judgment were taken for establishing the 
 earlier will. Subsequently P. discovered that the earlier will 
 was a forgery, and in an action in the Chancery division, to which 
 L. and G. were parties, obtained a verdict of a jury to that effect 
 and judgment, that the compromise should he set aside. In 
 another action in the Probate division for revocation of the pro- 
 bate of the earlier will, the court held that L. and G. were es^ 
 topped from denying the forger y (y). 
 
 L. was charged with night-poaching under 9 Geo. 4, c. 69, and 
 in course of cross-examination of prosecutor's witnesses, the jus- 
 tices considered he had been illegally arrested and discharged 
 him. L. was again summoned for the same offence, upon the 
 same facts, when the justices held that they had no jurisdiction, 
 as the former charge was res judicata, and in this decision they 
 were upheld (z). 
 
 The plaintiff, mortgagee of a policy of life insurance, handed 
 it to the mortgagor for a particular purpose. On the plaintiff 
 demanding it back from time to time the mortgagor made ex- 
 cuses for not doing so ; and the plaintiff then forgot that it had 
 not been returned. Afterwards the mortgagor deposited the pol- 
 icy with the defendants to secure an advance. The plaintiff gave 
 notice of his interest to the insurance company before the defend- 
 ants. The court decided that the plaintiff was entitled to the 
 policy as against the defendants, and that the conduct of the 
 plaintiff had not been such as to estop him from asserting his 
 claim against the defendants («). 
 
 Where, in an action in a county court, a defendent has relied 
 upon a cause of action by way of counter claim, upon which he 
 has obtained a verdict for an amount beyond the jurisdiction of 
 the county court, and judgment has been entered for the defendant, 
 
 (u) Horsfall v. Halifax and 
 Huddersfield Union Banking 
 Co., 52 L. J. Ch. 599; Pearson, J. 
 
 (x) Wogan v. Doyle, 12 L. R. 
 Ir. 69 ; Earl. 
 
 (g) Priestman r. Thomas, 9 
 1'. D. 210; 53 L. J. P. 109; 32 
 W. R. 842 ; C. A. affirming !> P. 
 D. 70 ; 53 L. J. P. 58 D. 
 
 (z) Reg. v. Brackenridge, 18 
 J. P. 293, I).; andsee TheThv- 
 atira, 8 P. D. 155 ; 52 L. J. P. 
 
 85 ; 49 L. T. 406 ; 32 W. R. 276, 
 D.; Ennis v. Rochford, 14 L. R. 
 Ir. 285, Q. B. D. ; Cropper v. 
 Smith, 26 Ch. D. 700 ; 53 L. J. 
 Ch. 891 ; 33 W. R. 60, C. A.; 
 10 A pp. Cases. 249, 55 L. J. Ch. 
 12 ; 53 L. T. 330 ; 33 W. R. 753, 
 H. L. E. ; Ghost's Trusts, In re, 
 49 L. T. 588, Kay, J. 
 
 (a) Hall v. West End Advance 
 Co., 1 C. &E. 161; Williams, J.
 
 ESTOPPEL. 409 
 
 but no relief has been given in respectof the balance inexcessof 
 the plaintiffs claim, the defendant isnot estopped from afterwards 
 bringing an action in the High Court upon the same cause of ac- 
 tion (b). 
 
 The estoppel which enables a landlord who is mortgagor wiih- I [artcup v. 
 out the legal estate to sue for rent, is mutual and renders him Bell. 
 liable on the covenants in the lease (c). 
 
 A marriage settlement contained a recital that B. was "seized In re Horton. 
 of or otherwise well entitled to" certain messuages, the whole 
 deed showing the meaning to be that B. was entitled in one shape 
 or other to the fee simple of all the property therein conveyed. 
 The court held this a sufficient estoppel as to the part of the prop- 
 erty in which at the date of the settlement B. had no interest 
 whatever, but to which her interest accrued subsequently (d). 
 
 Where a divisional court has decided against an applicant on Keg. v. 
 one application, a divisional court consisting of other judges will Lardley. 
 not overrule or review that decision on a second application by 
 him, which, though technically different from the first, raises the 
 identical point again (e). 
 
 Where a litigant has obtained the decision of the court on the Gandy v. 
 construction of a deed in his favour, he cannot as'k the court in a Gandy. 
 subsequent action to put an oppposite construction on the same 
 deed (/*). 
 
 Where a person, claiming to be assignee of the reversion, re- Carlton v. 
 ceives rent from the tenant by fraud or misrepresentation, such Bowcock. 
 payment is no evidence of title ; but where there is no fraud or 
 misrepresentation, such payment is prima facie evidence of title, 
 and the tenant can only defeat that title by showing that he 
 paid the rent in ignorance of the true state of the title, and that 
 -some third person is the real assignee of the reversion and enti- 
 tled to maintain ejectment (g). 
 
 (b) Webster v. Armstrong, 54 T. 306 ; 33 W. R. 803 ; C. A. ; 
 L. J. Q. B. 236 ; 1 C. & E. 471, and see Russell v. Waterford 
 Mathew, J.; and see 47 & 48 and Limerick Railway, 16 L.R. 
 Vict.,c. 61, s. 18; Serras v. Noel, Ir. 314, Ex. I).; Houstoun v. 
 15 Q. B. D. 549; De Mora v. Marquis of Sligo,29 Ch. D. 448; 
 Concha, 29 Ch. D. 268; 54 L.J. 52 L. T. 96.— Pearson, J. 
 
 Ch. 532; 52 L. T. 282, C. A. 32 (g) Carlton v. Bowcock, 51 L. 
 
 W. R. 846; 49 J. P. 548, C A. T. 659, Case, J.; and see Ashby 
 
 (c) Harteup v. Bell, 1 C. & E. v. Day, 54 L. J. Ch. 935; 52 L. 
 19— Manistry, J. T. 723 ; 33 W. R. 631, V. C. B. ; 
 
 (<l) Horton, In re Horton v. Herman v. Royal Exchange 
 
 l'erks, 51 L. T. 420, Kay, J.; ShippingCo.,1 C. &E,413,Hud- 
 
 and see Haymill v. Murphy, 12 dlestone; B. affirmed inc. A.; 4 
 
 L. R. Ir. 400; Ex. D. Manches- Reg. v. Charnwood Forest Rail- 
 
 ter and Oldham Bank?'. Cook, way, 1 C. & E. 419, Denman; 
 
 49 L.T. 674, per Smith, J. Shaw affirmed in C. A.; Barrow Mu- 
 
 v. Pint Philip Gold MiningCo., tual Ship Insurance Co. v. Ash- 
 
 13 Q. B. I). 103; 53 L. J. Q. B. burner, 54 L. J. Q. B. 377, C. 
 
 369;50 L. T. 615: 32 W. R. 771 D. A.: Yarmouth Exchange Bank 
 
 (e) Reg. v. Eardley, 49 J. P. v. Blethen, 10 App. Cases, 293: 
 
 531. D. 51 L. J. Q. C. 27: :V.\ W. K.801.' 
 
 ( f) Gandy «. (Jandy, 30 Ch. P. C. : Thorp v. Dakin, 52 L. T. 
 
 D. 57 ; 54 L. J. Ch. 1154; 53 L. 856, 1).
 
 410 ESTOPPEL. 
 
 We have thus given some example of estoppels of various kinds. 
 
 The law is said to be " favourable to the utility of the doctrine of 
 estoppel, hostile to its technicality." On the one hand, persons 
 must not he allowed to mislead others with impunity; on the 
 other, every little casual remark must not be tortured intoanat- 
 tempt to mislead. In one of the cases just referred to Lord Brain- 
 well said, "Estoppels are odious, and the doctrine should never be ap- i 
 plied without a necessity for it."
 
 411 
 
 APPENDICES. W 
 
 STATUTES IN APPENDIX A. 
 
 29 Car. II. c. 3 (Statute of Frauds). 
 
 29 Car. II. c. 7 (Lord's Day Act). 
 
 14 Geo. III. c. 48 (Insurance on Lives). 
 
 9 Geo. IV. c. 14 (Lord Tenterden's Act). 
 
 11 Geo. IV. & 1 Will. IV. c. 68 (Carriers Act). 
 
 2 & 3 Will. TV. c. 71 (Prescription Act). 
 
 17 & 18 Vict. c. 31 (Railway and Canal Traffic Act). 
 
 19 & 20 Vict. c. 97 ( Mercantile Law Amendment Act). 
 
 26 & 27 Vict. c. 41 (Inkeepers Act). . 
 
 28 & 29 Vict. c. 86 (Partnership Law Amendment Act). 
 
 34 & 35 Vict. c. 79 (Lodgers' Goods Protection Act). 
 
 37 & 38 Vict. c. 62 (Infants' Relief Act, 1874). 
 
 38 & 39 Vict. c. 92 (Agricultural Holdings Act, 1875). 
 41 & 42 Vict. c. 31 (Bills of Sale Act, 1878). 
 
 43 & 44 Vict. c. 42 (Employers' Liability Act, 1880). 
 
 44 & 45 Vict. c. 41 (Conveyancing and Law of Prop- 
 
 erty Act, 1881). 
 
 45 & 46 Vict. c. 42 (Bills of Sale Act, 1882). 
 
 45 & 46 Vict. c. 57 (Costs in County Courts Acts, 1 882 ) . 
 45 & 46 Vict. c. 61 (Bills of Exchange Act, lb82). 
 45 & 46 Vict. c. 75 (Married Women's Property Act, 
 
 1882). 
 47 & 46 Vict. c. 61 (Agricultural Holdings (England) 
 Act, 1883). 
 
 (h) The student is recommended to write the names of such of 
 the hundred and fifty cases as bear on the statutes, maxims. &c, 
 in the Appendices opposite to the passages to which they refer. 
 The author would have done this himself, only he thinks he would 
 thereby have deprived the student of a little useful and innocent 
 amusement.
 
 412 APPENDIX A. 
 
 APPENDIX A. 
 
 PRINCIPAL SECTIONS OF PRINCIPAL STATUTES RE- 
 FERRED TO IN THE BODY OF THE WORK. 
 
 29 Car. II. c. 3 (1677). 
 
 Statute of An Act for Prevention of Frauds and Perjuries. 
 
 Frauds. 
 
 1. All leases, estates, interests of freehold, or terms 
 of years, or any uncertain interest of, in, to, or out of 
 any messuages, manors, lands, tenements, or heredita- 
 ments, made or created by livery and seizin only, or by 
 parol and not put in writing and signed by the parties 
 so making or creating the same, or their agents there- 
 unto lawfully authorized by writing, shall have the force 
 and effect of leases or estates at will only. 
 
 2. Except leases not exceeding three years from the 
 making thereof, whereupon the rent reserved shall 
 amount to two-thirds at least of the full improved value 
 of the thing demised. 
 
 4. No action shall be brought whereby to charge any 
 executor or administrator upon any special promise to 
 answer damages out of his own estate, or whereby to 
 charge the defendant upon any special promise to an- 
 swer for the debt, default, or miscarriages of another 
 person; or to charge any person upon any agreement 
 made upon consideration of marriage; or upon any con- 
 tract or sale of lands, tenements, or hereditaments, or 
 any interest in or concerning them; or upon any agree- 
 ment that is not to be performed within the space of 
 one year from the making thereof; unless the agreement 
 upon which such action shall be brought, or some mem- 
 orandum or note thereof, shall be in writing, and signed 
 by the party to be charged therewith, or some other per- 
 son thereunto by hiin lawfully authorised. 
 
 17. No contract for the sale of any goods, wares, and 
 merchandises, for the price of ten pounds sterling or 
 upwards, shall be allowed to be good, except the buyer 
 shall accept part of the goods so sold, and actually re- 
 ceive the same, or give something in earnest to bind the 
 bargain or in part of payment, or some note or memo- 
 randum in writing of the said bargain be made and 
 signed by the parties to be charged by such contracts, 
 or their agents thereunto lawfully authorised.
 
 APPENDIX A. 413 
 
 29 Car. II. c. 7 (1077). 
 
 An Act for the Better Observation of the Lord's Day, 
 commonly called Sunday. 
 
 For the better observation and keeping holy the Lord's 
 Day, commonly called Sunday, be it enacted . . . 
 that all the laws enacted and in force concerning the 
 observation of the Lord's Day, and repairing to the 
 church thereon, be carefully put in execution; and that 
 all and every person and persons whatsoever shall on 
 every Lord's Day apply themselves to the observation 
 of the same, by exercising themselves thereon in the 
 duties of piety and true religion, publicly and privately; 
 and that no tradesman, artificer, workman, labourer, or 
 other person whatsoever shall do or exercise any worldly 
 labour, business, or work of their ordinary callings 
 upon the Lord's Day, or any part thereof (works of 
 necessity and charity only excepted); and that every 
 person, being of the age of fourteen years or upwards, 
 offending in the premises shall for every such offence 
 forfeit the sum of five shillings; and that no person or 
 persons whatsoever shall publicly cry, shew forth, or 
 expose to sale any wares, merchandises, fruit, herbs, 
 goods or chattels whatsoever upon the Lord's Day, or 
 any part thereof, upon pain that every person so offend- 
 ing shall forfeit the same goods so cried, or shewed 
 forth, or exposed to sale. 
 
 14 Geo. III. c. 48 (1774). 
 
 An Act for regulating Insurances upon Lives, and for 
 prohibiting all such Insurances except in cases where 
 the Persons Insuring shall have an interest in the 
 Life or Death of the Persons Insured. 
 
 1. Whereas it hath been found by experience that the 
 making insurances on lives or other events wherein the 
 assured shall have no interest hath introduced a mis- 
 chievous kind of gaming: . . . be it enacted . . . 
 that, from and after the passing of this Act, no insur- 
 ance shall be made by any person or persons,bodies poli- 
 tic or corporate,on the life or lives of any person or per- 
 sons, or on any other event or events whatsoever, wherein 
 
 28 COMMON LAW.
 
 414 APPENDIX A. 
 
 the person or persons for whose use, benefit, or on whose 
 account such policy or policies shall be made, sball have 
 no interest, or by way. of gaming or wagering; and 
 that every assurance made contrary to the true intent 
 and moaning hereof shall be null and void to all intents 
 and purposes whatsoever. 
 
 2. And be it further enacted that it shall not be law- 
 ful to make any policy or policies on the life or lives of 
 any person or persons, or other event or events, with- 
 out inserting in such policy or policies the person or 
 persons' name or names interested therein, or for whose 
 use, benefit, or on whose account such policy is so made 
 or underwrote. 
 
 3. And be it further enacted that in all cases where 
 the insured hath interest in such life or lives, event or 
 events, no greater sum shall be recovered or received 
 from the insurer or insurers than the amount or value 
 of the interest of *the insured in such life or lives, or 
 other event or events. 
 
 9 Geo. IV. c. 14 (1828). 
 
 l^ord Tender- An Act for rendering a Written Memorandum necessary 
 to the Validity of Certain Promises and Engagements. 
 
 den's Act. 
 
 6. No action shall be brought whereby to charge any 
 person upon or by reason of any representation or as- 
 surance made or given concerning or relating to the 
 character, conduct, credit, ability, trade, or dealings of 
 any other person, to the intent or purpose that such 
 
 (a) Sic. other person may obtain credit, money, or goods upon (a), 
 
 unless such representation or assurance be made in writ- 
 ing, signed by the party to be charged therewith. 
 
 7. AVhereas it has been held that the said recited en- 
 actments [viz., the 17th section of the Statute of Frauds 
 and a similar Irish statute] do not extend to certain 
 executory contracts for the sale of goods, which never- 
 theless are within the mischief thereby intended to be 
 remedied, and it is expedient to extend the said enact- 
 ments to such executory contracts: Be it enacted, that 
 the said enactments shall extend to all contracts for the 
 sale of goods of the value of ten pounds sterling and 
 upwards, notwithstanding the goods may be intended 
 to be delivered at some future time, or may not at the
 
 APPENDIX A. 415 
 
 time of such contract bo actually made, procured, or 
 provided, or lit or ready for delivery, or some act may 
 be requisite for the making or completing thereof, or 
 rendering the same fit for delivery. 
 
 11 Geo. IV. & 1 Will. IV. c. 08 (1830). 
 
 An Act for the more effectual Protection of Mail Con- The Land 
 tractors, Stage-coach Proprietors, and other Com- Carriers Act. 
 mon Carriers for Hire against tlie Loss of or Injury 
 to Parcels or Packages delivered to them for Con- 
 veyance or Custody, the Value and Contents of 
 which shall not be delivered to them by the Oivners 
 thereof. 
 
 1. Whereas by reason of tho frequent practice of 
 bankers and others of sending by the public mails, 
 stage coaches, waggons, vans, and other public convey- 
 ances by land for hire, parcels and packages contain- 
 ing money, bills, notes, jewellery, and other articles of 
 great value in small compass, much valuable property 
 is rendered liable to depredation, and the responsibil- 
 ity of mail contractors, stage-coach proprietors, and 
 common carriers for hire is greatly increased: And 
 whereas through the frequent omission by persons 
 sending such parcels and packages to notify the value 
 and nature of the contents thereof, so as to enable such 
 mail contractors, stage-coach proprietors, and other 
 common carriers, by due diligence to protect them- 
 selves against losses arising from their legal responsi- 
 bility, and "the difficulty of fixing parties with know- 
 ledge of notices published by such mail contractors, 
 stage-coach proprietors, and other common carriers, 
 with the intent to limit such, responsibility, they have 
 become exposed to great and unavoidable risks, and 
 have thereby sustained heavy losses: Be it therefore 
 enacted . . . that, from and after the passing of 
 this Act, no mail contractor, stage-coach proprietor, or 
 other common carrier, by land for hire, shall be liable 
 for the loss of or injury to any article or articles or 
 property of the descriptions following — that is to say, 
 gold or silver coin of this realm or of any foreign state, 
 or any gold or silver in a manufactured or unmanufac- 
 tured state, or any precious stones, jewellery, watches, 
 clocks, or time-pieces of any description, trinkets, bills, 
 notes, or securities for payment of money, English or 
 foreign, stamps, maps, writings, title-deeds, paintings,
 
 416 
 
 APPENDIX A. 
 
 vided that 
 
 the term 
 "lace" in 
 this Act is 
 not. to in- 
 clude 
 machine- 
 made lace. 
 
 engravings, pictures, gold or silver plate, or plated arti- 
 cles, glass, china, silks in a manufactured and unmanu- 
 factured state, and whether wrought up or not wrought 
 By 28 & 29 up with other materials, furs or lace, or any of them, 
 Vict. c. 94, it contained in any parcel or package which shall have 
 has been pro- b een delivered, either to bo carried for hire or to accom- 
 pany the person of any passenger in any mail or stage- 
 coach or other public conveyance, when the value of 
 such articlo or articles or property aforesaid contained 
 in such parcel or package shall exceed the sum of ten 
 pounds, unless at the time of the delivery thereof at 
 the office, warehouse, or receiving house of such mail 
 contractor, stage coach proprietor, or other common 
 carrier, or to his, her, or their book keeper, coachman, 
 or other servant, for the purpose of being carried, or of 
 accompanying the person or any passenger as afore- 
 said, the value and nature of such articlo or articles of 
 property shall have been declared by the person or per- 
 sons sending or delivering the same, and such in- 
 creased charge as hereinafter mentioned, or an engage- 
 ment to pay the same, be accepted by the person re- 
 ceiving such parcel or package. 
 
 2. "When any parcel or package containing any of the 
 articles above specified shall be so delivered, and its 
 value and contents declared as aforesaid, and such value 
 shall exceed the sum of ten pounds, it shall be lawful for 
 such mail contractors, stage-coach proprietors, and 
 other common carriers, to demand and receive an in- 
 creased rate of charge to be notified by some notice 
 affixed in legible characters in some public and con- 
 spicuous part of the office, warehouse, or other receiv- 
 ing house where such parcels or packages 'are received 
 by them for the purpose of conveyance, stating the in- 
 creased rates of charge required to be paid over and 
 above the ordinary rate of carriage as a compensation 
 for the greater risk and care to be taken for the safe 
 conveyance of such valuable articles; and all persons 
 sending or delivering parcels or packages containing 
 such valuable articles as aforesaid at such office shall 
 be bound by such notice without further proof of the 
 same having come to their knowledge. 
 
 4. No public notice or declaration heretofore made, 
 or hereafter to be made, shall be deemed or construed 
 to limit or in anywise affect the liability at common law 
 of any such mail contractors, stage coach proprietors, 
 or other public common carriers as aforesaid, for or 
 in respect of any articles or goods to be carried and
 
 APPENDIX A. 417 
 
 conveyed by them; but all and every such mail con- 
 tractor, stage coach proprietors, and other common car- 
 riers as aforesaid, shall ... be liable, as at the com- 
 mon law, to answer for the loss of or any injury to any 
 articles and goods in respect whereof they may not be 
 entitled to the benefit of this Act, any public notice or 
 declaration by them made and given contrary thereto, 
 or in anywise limiting such liability, notwithstanding. 
 
 0. Nothing in this Act contained shall extend, or be 
 construed, to annul, or in anywise affect, any special 
 contract between such mail contractor, stage-coach pro- 
 prietor, or common carrier, and any other parties for 
 the conveyance of goods and merchandises. 
 
 8. Nothing in this Act shall be deemed to protect any 
 mail contractor, stage-coach proprietor, or other com- 
 mon carrier for hire, from liability to answer for loss or 
 injury to any goods or articles whatsoever, arising from 
 the felonious acts of any coachman, guard, book-keeper, 
 porter, or other servant in his or their employ, nor to 
 protect any such coachman, guard, book-keeper or other 
 servant from liability for any loss or injury occasioned 
 by his or their own personal neglect or misconduct. 
 
 2&3 Will. IV. c. 71 (1832). 
 
 An Act for shortening the Time of Prescription in cer- 
 tain cases. 
 
 Whereas the expression " time immemorial, or time 
 whereof the memory of man runneth not to the con- 
 trary," is now by the law of England in many cases 
 considered to include and denote the whole period of 
 time from the reign of King Richard the First, whereby 
 the title to matters that have been long enjoyed is some- 
 times defeated by showing the commencement of such 
 enjoyment, which is in many cases productive of incon- 
 venience and injustice; for remedy thereof be it enacted 
 by the King's most Excellent Majesty, by and with the 
 advice and consent of the lords spiritual and temporal, 
 and commons, in this present parliament assembled, 
 and by the authority of the same, that no claim which 
 may be lawfully made at the common law, by custom, 
 prescription, or grant, to any right of common or other
 
 418 APPENDIX A. 
 
 profit or benefit to be taken and enjoyed from or upon 
 any land of our Sovereign Lord the King, his heirs or 
 successors, or any land being parcel of the Duchy of 
 Lancaster or of the Duchy of Cornwall, or of any ec- 
 clesiastical or lay person, or body corporate, except such 
 matters and things as areherein specially provided for, 
 and except tithes, rent, and services, shall, where such 
 right, profit, or benefit shall have been actually taken 
 and enjoyed by any person claiming right thereto with- 
 out interruption for the full period of thirty years, be 
 defeated or destroyed by shewing only that such right, 
 profit, or benefit was first taken or enjoyed at any time 
 prior to such period of thirty years, but nevertheless 
 such claim may be defeated in any other way by which 
 the same is now liable to be defeated; and when such 
 right, profit, or benefit shall have been so taken and en- 
 joyed as aforesaid for the full period of sixty years, the 
 right thereto shall be deemed absolute and indefeasible, 
 unless it shall appear that the same was taken and en- 
 joyed by some consent or agreement expressly made or 
 given for that purpose by deed or writing. 
 
 2. And be it further enacted, that no claim which 
 may be lawfully made at the common law, by custom, 
 prescription, or grant, to any way or other easement, or 
 to any watercourse, or the use of any water, to be en- 
 joyed or derived upon, over, or from any land or water 
 of our said Lord the. King, his heirs or successors, or 
 being parcel of the Duchy of Lancaster or of the Duchy 
 of Cornwall, or being the property of any ecclesiastical 
 or lay person, or body corporate, when such way or other 
 matter as herein last before mentioned shall have been 
 actually enjoyed by any person claiming right thereto 
 without interruption for the full period of twenty years, 
 shall be defeated or destroyed by shewing only that such 
 way or other matter was first enjoyed at any time prior 
 to such period of twenty years, but nevertheless such 
 claim may be defeated in any other way by which the 
 same is now liable to be defeated; and where such way 
 or other matter as herein last before mentioned shall 
 have been so enjoyed as aforesaid for the full period of 
 forty years, the right thereto shall be deemed absolute 
 and indefeasible, unless it shall appear that the same 
 was enjoyed by some consent or agreement expressly 
 given or made for that purpose by deed or writing. 
 
 3. And be it further enacted, that when the access and 
 use of light to and for any dwelling house, workshop, or 
 other building shall have been actually enjoyed therewith
 
 APPENDIX A. 419 
 
 for the full period of twenty years without interruption, 
 the right thereto shall be deemed absolute and indefeasi- 
 ble, any. local usage or custom to the contrary notwith- 
 standing, unless it shall appear that tLe same was en- 
 enjoyed by some consent or agreement expressly made 
 or given for that purpose by deed or writing. 
 
 4. And be it further enacted, that each of the respec- 
 tive periods of years hereinbefore mentioned shall be 
 deemed and taken to be the period next before some 
 suit or action wherein the claim or matter to which such 
 period may relate shal] have been or shall be brought 
 into question, and that no Act or other matter shall be 
 deemed to be an interruption, within the meaning of 
 this statute, unless the same shall have been or shall be 
 submitted to or acquiesced in for one year after the 
 party interrupted shall have had or shall have notice 
 thereof, and of the person making or authorising the 
 same to be made. 
 
 G. And bo it further enacted, that in the several cases 
 mentioned in and provided for by this Act, no presump- 
 tion shall be allowed or made in favour or support of 
 any claim, upon proof of the exercise or enjoyment of 
 the right or matter claimed for any less period of time 
 or number of years than for such period or numbei 
 mentioned in this Act as may be applicable to the case 
 and to the nature of the claim. 
 
 7. Provided also, that the time during which any 
 person otherwise capable of resisting any claim to any 
 of the matters before mentioned shall have been or 
 shall be an infant, idiot, non compos mentis, feme 
 covert, or tenant for life, or during which any action 
 or suit shall have been pending, and which shall have 
 been diligently prosecuted, until abated by the death 
 of any party or parties thereto, shall be excluded in 
 the computation of the periods hereinbefore mention- 
 ed, except only in cases where the right or claim is 
 hereby declared to be absolute and indefeasible. 
 
 8. Provided always, and be it further enacted, that 
 when any land or water upon, over, or from which any 
 such way or other convenient watercourse or use of 
 water shall have been or shall be enjoyed or derived 
 hath been or shall be held under or by virtue of any 
 term of life, or any term of years exceeding three years 
 from the granting thereof, the time of the enjoyment 
 of any such way or other matter as herein last before 
 mentioned, during the continuance of such term, shall 
 be excluded in the computation of the said period of
 
 420 APPENDIX A. 
 
 forty years, in case the claim shall -within three years 
 next after the end or sooner determination of such term 
 be resisted by any person entitled to any reversion ex- 
 pectant on the determination thereof. 
 
 [17 & 18 Vict. c. 31 (1854).] 
 
 An Act for the Better Regulation of the Traffic on Bail- 
 ivays and Canals. 
 
 2. Every railway company, canal company, and rail- 
 way and canal company shall, according to their re- 
 spective powers, afford all reasonable facilities for the 
 receiving and forwarding and delivering of traffic upon 
 and from the several railways and canals belonging to 
 or worked by such companies respectively, and for the 
 return of carriages, trucks, boats, and other vehicles, 
 and no such company shall make or give any undue or 
 unreasonable preference or advantage to or in favour of 
 any particular person or company, or any particular 
 description of traffic in any respect whatsoever, nor shall 
 any such company subject any particular person or 
 company, or any particular description of traffic, to any 
 undue or unreasonable prejudice or disadvantage in any 
 respect whatsoever ; &c. 
 
 7. Every such company as aforesaid shall be liable 
 for the loss of, or for any injury done to any horses, 
 cattle, or other animals, or to any articles, goods, or 
 things,in the receiving,forwarding,or delivering thereof, 
 occasioned by the neglect or default of such company 
 or its servants, notwithstanding any notice, condition, 
 or declaration made and given by such company con- 
 trary thereto, or in anywise limiting such liability : 
 every such notice, condition, or declaration being hereby 
 declared to be null and void : Provided always, that 
 nothing herein contained shall be construed to prevent 
 the said companies from making such conditions with 
 respect to the receiving, forwarding, and delivering of 
 any of the said animals, articles, goods, or things as 
 shall be adjudged by the court or judge before whom 
 any question relating thereto shall be tried to be just 
 and reasonable : Provided always, that no greater dam- 
 ages shall be recovered for the loss of or for any injury 
 done to any of such animals beyond the sums hereinafter
 
 APPENDIX A. 421 
 
 mentioned ; that is to say, for any horse, fifty pounds ; 
 for any neat cattle, per head, fifteen pounds ; for any 
 sheep or pigs, per head, two pounds ; unless the person 
 sending or delivering the same to such company shall, 
 at the time of such delivery, have declared them to be 
 respectively of higher value than as above mentioned ; 
 in which case it shall be lawful f Dr such company to de- 
 mand and receive, by way of compensation for the in- 
 creased risk and care thereby occasioned, a reasonable 
 percentage upon the excess of the value so declared 
 above the respective sums so limited as aforesaid, and 
 which shall be paid in addition to the ordinary rate of 
 charge; and such percentage or increased rate of charge 
 shall be notified in the manner prescribed in the statute 
 11 Geo. IV. and 1 Will. IV. c. 68, and shall be binding 
 upon such company in the manner therein mentioned: 
 Provided also, that the proof of the value of such ani- 
 mals, articles, goods, and things, and the amount of the 
 injury done thereto , shall in all cases lie upon the per- 
 son claiming compensation for such loss or injury : 
 Provided also, that no special contract between such 
 company and any other parties respecting the receiv- 
 ing, forwarding, or delivering of any animals, articles, 
 goods, or things as aforesaid, shall be binding upon 
 or affect any such party unless the same be signed 
 by him, or by the person delivering such animals, 
 articles, goods, or things respectively for carriage : 
 Provided also, that nothing herein contained shall 
 alter or affect the rights, privileges, or liabilities of any 
 such company under the said Act of the 11 Geo. IV. & 
 1 Will. IV. c. 68 with respect to articles of the descrip- 
 tions mentioned in the said Act. 
 
 19 & 20 Vict. c. 97 (1856). 
 
 An Act to amend the Laivs of England and Ireland of- Mercantile 
 
 fecting Trade and Commerce. Law Amend- 
 
 ment Act. 
 
 3. No special promise to be made by any person after 
 the passing of this Act to answer for the debt, default, 
 or miscarriage of another person, being in writing, and 
 signed by the party to be charged therewith, or some 
 other person by him thereunto lawfully authorised, shall 
 be deemed invalid to support an action, suit, or other 
 proceeding to charge the person by whom such promise
 
 4J-J APPENDIX A. 
 
 shall have been made, by reason only that the consider- 
 ation for such promise does not appear in writing, or by 
 necessary inference from a written document. 
 
 4. No promise to answer for the debt, default, or mis- 
 carriage of another made to a firm consisting of two or 
 more persons, or to a single person trading under the 
 name of a firm, and no promise to answer for the debt, 
 default, or miscarriage of a firm consisting of two or 
 more .persons, or of a single person trading under the 
 name of a firm, shall be binding on the person making 
 such promise in respect of anything done or omitted to 
 be done after a change shall have taken place in any 
 one or more of the persons constituting the firm, or in 
 the person trading under the name of the firm, unless 
 the intention of the parties, that such promise shall con- 
 tinue to be binding notwithstanding such change, shall 
 appear either by express stipulation or by necessary 
 implication from the nature of the firm or otherwise. 
 
 5. Every person who, being surety for the debt or 
 duty of another, or being liable with another for any 
 debt or duty, shall pay such debt or perform such duty, 
 shall be entitled to have assigned to him, or to a trustee 
 for him, every judgment, specialty, or other security 
 which shall be held by the creditor in respect of such 
 debt or duty, whether such judgment, specialty, cr other 
 security shall or shall not be deemed at law to have been 
 satisfied by the payment of the debt or performance of 
 the duty, and such person shall be entitled to stand in 
 the place of the creditor, and to use all the remedies, 
 and, if need be, and upon a proper indemnity, to use 
 the name of the creditor, in any action or other pro- 
 ceeding, at law or in equity, in order to obtain from the 
 principal debtor, or any co- surety, co- contractor, or co- 
 debtor, hs the case may be, indemnification for the 
 advances made and loss sustained by the person- who 
 shall have so paid such debt or performed such duty, 
 and such payment or performance so made by such 
 surety shall not be pleadable in bar of any such action 
 or other proceeding by him ; Provided always, that no 
 co-surety, co- contractor, or co-debtor shall be entitled to 
 recover from any other co-surety, co-contractor or co- 
 debtor, by the means aforesaid, more than the just pro- 
 portion to which, as between those parties themselves, 
 such last mentioned person shall be justly liable. 
 
 6. No acceptance of any bill of exchange, whether in- 
 land or foreign (made after December 3 1st, 1856) shall be 
 sufficient to bind or charge any person, unless the same
 
 APPENDIX A. 423 
 
 be in writing on such bill, or, if there be more than one 
 part of such bill, on one of the said parts, and signed 
 by the acceptor or some person duly authorised by 
 him. 
 
 7. Every bill of exchange or promissory note drawn 
 or made in any part of the United Kingdom of Great 
 Britain and Ireland, the Islands of Man, Guersney, 
 Jersey, Alderney, and Sark, and the Islands adjacent 
 to any of them, being part of the dominions of Her 
 Majesty, and made payable in, or drawn upon any person 
 resident in, any part of the United Kingdom or islands 
 shall be deemed to be an inland bill. 
 
 13. [In reference to the provisions of 9 Geo. IV. c. 
 14 aud 16 & 17 Vict. c. 113], an acknowledgment or 
 promise made or contained by or in a writing signed 
 by an agent of the party chargeable thereby, duly au- 
 thorised to make such acknowledgment or promise, 
 shall have the same effect as if such writing had been 
 signed by such party himself. 
 
 14. [In reference to the provisions of 21 Jac. I. c. 16, 
 &c. ], when there shall be two or more co- contractors or 
 co-debtors, whether bound or liable jointly only or 
 jointly and severally, or executors or administrators of 
 any contractor, no such co-contractor or co-debtor, ex- 
 ecutor or administrator, shall lose the benefit of the 
 said enactments or any of them, so as to be chargeable 
 in respect or by reason only of payment of any princi- 
 pal, interest, or other money by any other or others of 
 such co -contractors or co-debtors, executors or admin- 
 istrators. 
 
 26 & 27 Vict. c..41 (1863). 
 
 An Act to amend the Law respecting the Liability of Inn- 
 keepers and to prevent Certain Frauds upon them. 
 
 1. No innkeeper shall be liable to make good to any 
 
 guest of such innkeeper any loss of or injury to goods 
 
 or property brought to his inn, not being a horse or 
 
 Other live animal, or any gear appertaining thereto, or 
 
 any carriage, to a greater amount than £30, except — 
 
 (1.) Where such goods or property shall have been 
 
 stolen, lost, or injured through the wilful act, 
 
 default, or neglect of such innkeeper or his 
 
 servant.
 
 424 APPENDIX A. 
 
 (2.) Where the same shall have been deposited ex- 
 pressly for safe custody with such innkeeper. 
 Provided, that, in case of such deposit, the inn- 
 keeper may require as a condition of his liabil- 
 ity, that such goods or property shall be depos- 
 ited in a box or other receptacle, fastened and 
 sealed by the person depositing the same. 
 
 2. If any innkeeper shall refuse to receive for safe 
 custody any goods or property of his guest, or if such 
 guest shall through any default of such innkeeper be 
 unable to deposit the same, such innkeeper shall not be 
 entitled to the benefit of this Act in respect of the 
 same. 
 
 3. Every innkeeper shall cause at least one copy of 
 6ect. 1 printed in plain type to be exhibited in a con- 
 spicuous part of the hall or entrance to his inn, and 
 shall be entitled to the benefit of this Act in respect of 
 such goods or property only as shall be brought to his 
 inn while such copy shall be so exhibited. 
 
 2S & 29 Vict. c. 86 (1865). 
 An Act to amend the Law of Partnership. 
 
 1. The advance of money by way of loan to a person 
 engaged, or about to engage, in any trade or undertak- 
 ing upon a contract in writing with such person that 
 the lender shall receive a rate of interest varying with 
 the profits, or shall receive a share of the profits aris- 
 ing fi'om carrying on such trade or undertaking, shall 
 not, of itself, constitute the lender a partner with the 
 person or persons, carrying on such trade or undertak- 
 ing, or render him responsible as such. 
 
 2. No contract for the remuneration of a servant or 
 agent of any person engaged in any trade or undertak- 
 ing by the share of the profits of such trade or under- 
 taking shall, of itself, render such servant or agent re- 
 sponsible as a partner therein, nor give him the rights 
 of a partner. 
 
 3. No person being the widow or child of the deceas- 
 ed partner of a trader, and receiving by way of annuity 
 a portion of the profits made by such trader in his busi- 
 ness, shall, by reason only of such receipt, be deemed 
 to be a partner of, or to be subject to, any liabilities 
 incurred by such trader.
 
 APPENDIX A. 425 
 
 4. No person receiving by way of annuity or other- 
 wise a portion of the profits of any business, in consid- 
 eration of the sale by him of the goodwill of such busi- 
 ness, shall by reason only of such receipt, be deemed to 
 be a partner of, or be subject to the liabilities of the 
 person carrying on such business. 
 
 5. In the event of any such trader as aforesaid being 
 adjudged a bankrupt, or taking the benefit of any Act 
 for the relief of insolvent debtors, or entering into an 
 arrangement to pay his creditors less than twenty shill- 
 ings in the pound, or dying in insolvent circumstances, 
 the lender of any such loan as aforesaid shall not be en- 
 titled to recover any portion of his principal, or of the 
 profits or interest payable in respect of such loan, nor 
 shall any such vendor of a goodwill as aforesaid be en- 
 titled to recover any such profits as aforesaid, until the 
 claims of the other creditors of the said trader for valu- 
 able consideration in money or money's worth have been 
 satisfied. 
 
 34 & 35 Yict. c. 79 (1871). 
 
 Lodgers' Goods Protection Act 
 
 1. If any superior landlord shall levy, or authorise 
 to be levied, a distress on any furniture, goods or chat- 
 tels of any lodger for arrears of rent due to such su- 
 perior landlord by his immediate tenant, such lodger 
 may serve such superior landlord, or the bailiff or other 
 person employed by him to levy such distress, with a 
 declaration in writing made by such lodger, setting 
 forth that such immediate tenant has no right of pro- 
 perty or beneficial interest in the furniture, goods, or 
 chattels so distrained or threatened to be distrained 
 upon, and that such furniture, goods, or chattels are the 
 property, or in the lawful possession of, such lodger, 
 and also setting forth whether any and what rent is due, 
 and for what period, from such lodger to his im- 
 mediate landlord; and such lodger may pay to the 
 superior landlord, or the bailiff or other person em- 
 ployed by him as aforesaid, the rent, if any, so due as 
 last aforesaid, or so much thereof as shall be sufficient 
 to discharge the claim of such superior landlord. And 
 to such declaration shall be annexed a correct inventory, 
 subscribed by the lodger, of the furniture, goods and 
 chattels referred to in the declaration.
 
 426 APPENDIX A. 
 
 2. If any superior landlord, or any bailiff, or other 
 person employed by him, shall, after being served with 
 the before-mentioned declaration and inventory, and 
 after the lodger shall have paid or tendered to such 
 superior landlord, bailiff, or other person, the rent, if 
 any, which by the last preceding section such lodger is 
 authorised to pay, shall levy or proceed with a distress 
 on the furniture, goods, or chattels of the lodger, such 
 superior landlord, bailiff, or other person, shall be 
 deemed guilty of an illegal distress, and the lodger may 
 apply to a justice of the peace for an order for the 
 restoration to him of such goods; . . . and the superior 
 landlord shall also be liable to an action at law at the 
 suit of the lodger. 
 
 37 & 38 Vict. c. 62. • 
 The Infants Relief Act, 1874. 
 
 1. All contracts, whether by specialty or by simple 
 contract, henceforth entered into by infants for the re- 
 payment of money lent or to be lent, or for goods sup- 
 plied or to be supplied (other than contracts for neces- 
 saries), and all accounts stated with infants, shall be 
 absolutely void: Provided always, that this enactment 
 shall not invalidate any contract into which an infant 
 may, by any existing or future statute, or by the rules 
 of the common law or equity, enter, except such as now 
 by law are voidable. 
 
 2. No action shall be brought whereby to charge any 
 person upon any promise made after full age to pay any 
 debt contracted during infancy, or upon any ratification 
 made after full age of any promise or contract made 
 during infancy, whether there shall or shall not be any 
 new consideration for such promise or ratification after 
 full age. 
 
 & 39 Vict. c. 92 (1875). 
 
 An Act for amending the Laiv relating to Agricultural 
 Holdings in England. 
 
 51. Where a half-year's notice, expiring with a year of 
 tenancy, is by law necessary and sufficient for determina-
 
 APPENDIX A. 427 
 
 tion of a tenancy from year to year, a year's notice so ex- 
 piring shall by virtue of this Act be necessary and suf- 
 ficient for the same; but nothing in this section shall 
 extend to a case where the tenant is adjudged bankrupt, 
 or has filed a petition for a composition or arrangement 
 with his creditors. 
 
 53. Where after the commencement of this Act a ten- 
 ant affixes to his holding any engine, machinery, or other 
 fixture for which he is not under this Act or otherwise 
 entitled to compensation, and which is not so affixed in 
 pursuance of some obligation in that behalf or instead of 
 some fixture belonging to the landlord, then such fixture 
 shall be the property of and be removable by tho tenant. 
 
 Provided as follows: — 
 
 ( 1. ) Before the removal of any fixture the tenant 
 shall pay all rent owing by him, and shall per- 
 form or satisfy all other his obligations to the 
 landlord in respect of the holding: 
 (2.) In the removal of any fixture the tenant shall 
 not do any avoidable damage to any building or 
 other part of the holding: 
 (3.) Immediately after the removal of any fixture the 
 tenant shall make good all damage occasioned 
 to any building or other part of the holding by 
 the removal: 
 (4. ) The tenant shall not remove any fixture without 
 giving ono month's previous notice in writing 
 to the landlord of the intention of the tenant 
 to remove it: 
 (5.) At any time before the expiration of the notice 
 of removal, the landlord, by notice in writing 
 given by him to the tenant, may elect to pur- 
 chase any fixture comprised in the notice of re- 
 moval, and any fixture thus elected to be pur- 
 chased shall be left by the tenant, and shall be- 
 come the property of the landlord, who shall 
 pay the tenant the fair value thereof to an in- 
 coming tenant of the holding; and any differ- 
 ence as to the value shall be settled by a refer- 
 ence under this Act, as in case of compensation 
 (but without appeal): 
 But nothing in this section shall apply to a steam en- 
 gine erected by the tenant if, before erecting it, the ten- 
 ant has not given to the landlord notice in writing of his 
 intention to do so, or if the landlord, by notice in writing 
 given to the tenant, has objected to the erection thereof. 
 
 54. Nothing in this Act shall prevent a landlord and
 
 128 APPENDIX A. 
 
 tenant, or intending landlord and tenant, from entering 
 into and carrying into effect any such agreement as they 
 think tit, or shall interfere with the operation thereof. 
 58. Nothing in this Act shall apply to a holding that 
 is not either wholly agricultural or wholly pastoral, or 
 in part agricultural and as to the residue pastoral, or 
 that is of less extent than two acres. 
 
 41 &42 Vict. c. 31 (1878). 
 
 An Act to consolidate and amend the Law for prevent- 
 ing FiHuds upon Creditors by Secret Bills of Sale of 
 Personal Chattels. 
 
 11. The registration of a bill of sale, whether exe- 
 cuted before or after the commencement of this Act, 
 must be renewed once at least every five years, and if a 
 period of five years elapses from the registration or re- 
 newed registration of a bill of sale without a renewal 
 or further renewal (as the case may be), the registra- 
 tion shall become void. The renewal of a registration 
 shall be effected by filing with the registrar an affidavit 
 stating the date of the bill of sale and of the last reg- 
 istration thereof, and the names, residences, and occu- 
 pations of the parties thereto as therein stated, and that 
 the bill of sale is still a subsisting security. ... A 
 renewal of registration shall not become necessary by 
 reason only of a transfer or assignment of a bill of sale. 
 
 43 & 44 Vict. c. 42 (1880). 
 
 An Act to extend and regulate the Liability of Employ- 
 ers to make Compensation for personal Injuries suf- 
 fered by Workmen in their service. 
 
 1. Where after the commencement of this Act per- 
 sonal injury is caused to a workman — 
 
 (1.) By reason of any defect in the condition of the 
 ways, works, machinery, or plant connected with 
 or used in the business of the employer; or
 
 APPENDIX A. 429 
 
 (2.) By reason of the negligence of any person in the 
 service of the employer who has any superintend- 
 ence entrusted to him whilst in the exercise of 
 such siaperintendence ; or 
 (3. ) By reason of the negligence of any person in the 
 service of the employer to whose orders or direc- 
 tions the workman at the time of the injury was 
 bound to conform, and did conform, where such 
 injury resulted from his having so conformed, or ; 
 (4.) By reason of the actor omission of any person 
 in the service of the employer done or made ,in 
 obedience to the rules or by-laws of the employer, 
 or in obedience to particular instructions given 
 by any person delegated with the authority of 
 the employer in that behalf ; or 
 (5. ) By reason of the negligence of any person in the 
 service of the employer who has the charge or 
 control of any signal, points, locomotive engine, 
 or train upon a railway, the workman, or in case 
 the injury results in death the legal personal rep- 
 resentatives of the workman, and any persons en- 
 titled in case of death, shall have the same right 
 of compensation and remedies against the em- 
 ployers as if the workman had not been a workman 
 of nor in the service of the employer, nor en- 
 gaged in his work. 
 2. A workman shall not be entitled under this Act to 
 any right of compensation or remedy against the em- 
 ployer in any of the following cases ; that is to say, 
 (1.) Under sub-section one of section one, unless the 
 defect therein mentioned arose from or had not 
 been discovered or remedied owing to the negli- 
 gence of the employer, or of some person in the 
 service of the employer, and entrusted by him 
 with the duty of seeing that the ways, works, 
 machinery, or plant were in proper condition. 
 (2.) Under sub- section four of section one, unless the 
 injury resulted from some impropriety or defect 
 in the rules, bye-laws, or instructions therein 
 mentioned ; provided that where a rule or bye- 
 law has been approved or has been accepted as 
 a proper rule or bye-law by one of her Majesty's 
 principal Secretaries of State, or by the Board 
 of Trade, or any other Department of the Gov- 
 ernment, under or by virtue of any Act of Par- 
 liament, it shall not be deemed for the purposes 
 of this Act to be an improper or defective rule 
 or bye-law. 
 
 29 COMMON LAW.
 
 430 APPENDIX A. 
 
 (3. ) In any case where the workman knew of the de- 
 fect or negligence which caused his injury, and 
 failed within a reasonable time to give, or cause 
 to be given, information thereof to the employer 
 or some person superior to himself in the ser- 
 vice of the employer, unless he was aware that 
 the employer, or such superior already knew of 
 the said defect or negligence. 
 4. An action for the recovery under this Act of com- 
 pensation for an injury shall not be maintainable unless 
 notice that injury has been sustained is given within 
 six weeks, and the action is commenced within six 
 months from the occurrence of the accident causing the 
 injury, or, in case of death, within twelve months from 
 the time of death : Provided always, that in case of 
 death the want of such notice shall be no bar to the 
 maintenance of such action if the judge shall be of 
 opinion that there was reasonable excuse for such want 
 of notice. 
 
 6. — (1.) Every action for recovery of compensation 
 under this Act shall be brought in a county court, but 
 may, upon the application of either plaintiff or defend- 
 ant, be removed into a superior court in like manner 
 and upon the same conditions as an action commenced 
 in a county court may by law be removed. 
 
 44 & 45 Vict. 41 (1881). 
 
 An Apt for simplying and improving the practice of Con- 
 veyancing ; and for vesting in Trustees, Mortga- 
 gees, and others various powers commonly conferred 
 by provisions inserted in Settlements, Mortgages, 
 Wills and other Instruments; and for amending 
 in various particulars the Law of Property ; and 
 for other purposes. 
 
 10. — (1. ) Rent reserved by a lease, and the benefit 
 of every covenant or provision therein contained, hav- 
 ing reference to the subject-matter thereof, and on the 
 lessee's part to be observed or performed, and every 
 condition of re-entry and other condition therein con- 
 tained, shall be annexed and incident to and shall go 
 with the reversionary estate in the land, or in any part 
 thereof, immediately expectant on the term granted by 
 the lease, notwithstanding severance of that reversionary
 
 • APPENDIX A. , 431 
 
 estate, and shall be capable of being recovered, received, 
 enforced, and taken advantage of by the person from 
 time to time entitled, subject to the term, to the income 
 of the whole or any part, as the case may require, of 
 the land leased. 
 
 (2.) This section applies only to leases mado after 
 the commencement of this Act. 
 
 11. — (1.) The obligation of a covenant entered into 
 by a lesser with reference to the subject-matter of the 
 lease shall, if and as far as the lessor has power to bind 
 the reversionary estate immediately expectant on the 
 term granted by the lease, be annexed and incident to 
 and shall go with that reversionary estate, or the sev- 
 eral parts thereof, notwithstanding severance of that 
 reversionary estate, and may be taken advantage of and 
 enforced by the person in whom the term is from time 
 to time vested by conveyance, devolution in law, or 
 otherwise; and, if and as far as the lessor has power 
 to bind the person from time to time entitled to that 
 reversionary estate, the obligation aforesaid may be 
 taken advantage of and enforced against any person so 
 entitled. 
 
 (2.) This section applies only to leases made after 
 the commencement of this Act. 
 
 14. — (1. ) A right to re-entry or forfeiture under any 
 proviso or stipulation in a lease, for a breach of any 
 covenant or condition in the lease, shall not be enf ore- 
 able, by action or otherwise, unless and until the lessor 
 serves on the lessee a notice specifying the particular 
 breach complained of, and if the breach is capable of 
 remedy, requiring the lessee to remedy the breach and 
 in any case requiring the lessee to make compensation in 
 money for the breach, and the lessee fails, within a 
 reasonable time thereafter, to remedy the breach, if it 
 is capable of remedy, and to make reasonable compen- 
 sation in money, to the satisfaction of the lessoi', for the 
 breach. 
 
 (2. ) "Where a lessor is proceeding, by action or other- 
 wise, to enforce such a right of re-entry or forfeiture, 
 the lessee may, in the lessor's action, if any, or in any 
 action brought by himself, apply to the court for relief ; 
 and the court may grant or refuse relief as the court, 
 having regard to the proceedings and conduct of the 
 parties under the foregoing provisions of this section, 
 and to all the other circumstances, thinks tit ; and in 
 case of relief, may grant it on such terms, if any, as to 
 costs, expenses, damages, compensation, penalty or 
 otherwise, including the granting of an injunction to
 
 |.; L > m APPENDIX A. 
 
 restrain any like breach in the future, as the court, in 
 the circumstances of each case, thinks tit. 
 
 (3. ) For the purposes of this section a lease includes 
 an original or derivative under-lease, also a grant at a 
 fee farm-rent, or securing a rent by condition ; and a 
 lessee includes an original or derivative under-lessee, and 
 the heirs, executors, administrators, and assigns of a 
 lessee, also a grantee under such a grant as aforesaid, 
 his heirs and assigns ; and a lessor includes an original 
 or derivative under-lessor, and the heirs, executors, ad- 
 ministrators, and assigns of a lessor, also a grantor as 
 aforesaid, and his heirs and assigns. 
 
 (4.) This section applies although the proviso or 
 stipulation under which the right of re-entry or for- 
 feiture accrues is inserted in the lease in pursuance of 
 the directions of any Act of Parliament. 
 
 (5.) For the purposes of this section a lease limited to 
 continue as long only as the lessee abstains from commit- 
 ting a breach of covenant shall be and take effect as a 
 lease to continue for any longer term for which it could 
 subsist, but determinable by a proviso for re-entry on 
 such a breach. 
 
 (6.) This section does not extend — ■ 
 (i.) To a covenant or condition against the assign- 
 ing, under-letting parting with the possession, 
 or disposing of the land leased ; or to a condition 
 for forfeiture on the bankruptcy of the lessee, 
 or on the taking in execution of the lessee's in- 
 terest ; or 
 (ii. ) In case of a mining lease, to a covenant or con- 
 dition for allowing the lessor to have access to 
 or inspect books, accounts, records, weighing 
 machines or other things, or to enter or inspect 
 the mine or the workings thereof. 
 (7. ) The enactments described in Part I. of the Sec- 
 ond Schedule to this Act are hereby repealed. 
 
 (8.) This section shall not affect the law relating 
 to re-entry or forfeiture or relief in case of non-payment 
 of rent. 
 
 (9.) This section applies to leases made either before 
 or after the commencement of this Act, and shall have 
 effect notwithstanding any stipulation to the contrary.
 
 APPENDIX A. 438 
 
 45 &4G Vict. c. 43 (1882). 
 An Act to Amend the Bills of Sale Act, 1878. 
 
 4. Every bill of sale shall have annexed thereto or 
 "written thereon a schedule containing an inventory of 
 the personal chattels comprised in the bill of sale ; and 
 such bill of sale, save as hereinafter mentioned, shall 
 have effect only in respect of the personal chattels speci- 
 fically described in the said schedule ; and shall be void, 
 except as against the grantor, in respect of any personal 
 chattels not so specifically described. 
 
 5. Save as hereinafter mentioned, a bill of sale shall 
 be void, except as against the grantor, in respect of any 
 personal chattels specifically described in the schedule 
 thereto of which the grantor was not the true owner at 
 the time of the execution of the bill of sale. 
 
 6. Nothing contained in the foregoing sections of this 
 Act shall render a bill of sale void in respect of any of 
 the following things ; (that is to say), 
 
 (1.) Any growing crops separately assigned or 
 charged where such crops were actually grow- 
 ing at the time when the bill of sale was exe- 
 cuted 
 
 (2.) Any fixtures separately assigned or charged, and 
 any plant or trade machinery where such fix- 
 tures, plant, or trade machinery are used in, 
 attached to, or brought upon any land, farm, 
 factory, workshop, shop, house, warehouse, or 
 other place in substitutions for any of the like 
 fixtures, plant, or trade machinery specifically 
 described in the schedule to such bill of sale. 
 
 7. Personal chattels assigned under a bill of sale shall 
 not be liable to be seizd or taken posession of by the 
 grantee for any other than the following causes : — 
 
 (1.) If the grantor shall make default in payment of 
 the sum or sums of money thereby secured at 
 the time therein provided for payment, or in the 
 performance of any covenant. or agreement con- 
 tained in the bill of sale and necessary for main- 
 taining the security ; 
 
 (2.) If the granter shall become a bankrupt, or suffer
 
 434 APPENDIX A. 
 
 the said goods or any of them to be distrained 
 for rent, rates, or taxes ; 
 (3.) If the grantor shall fraudulently either remove 
 or suffer the said goods, or any of them, to be 
 removed from the premises ; 
 (4.) If the grantor shall not, without reasonable ex- 
 cuse, upon demand in writing by the grantee, 
 produce to him his last receipts for rent, rates, 
 and taxes ; 
 (5.) If execution shall have been levied against the 
 goods of the grantor under any judgement at 
 law ; 
 Provided that the grantor may, within five days from the 
 seizure or taking possession of any chattels on account 
 of any of the above-mentioned causes, apply to the 
 High Court, or to a judge thereof in chambers, and such 
 court or judge, if satisfied that by payment of money or 
 otherwise the said cause of seizure no longer exists, may 
 restrain the grantee from removing or selling the said 
 chattels, or may make such other order as may seem 
 just. 
 
 8. Every bill of sale shall be duly attested, and shall 
 be registered under the principal Act within seven clear 
 days after the execution thereof, or, if it is executed in 
 any place out of England, then within seven clear days 
 after the time at which it would in the ordinary course 
 of post arrive in England if posted immediately after 
 the execution thereof ; and shall truly set forth the con- 
 sideration for which it was given ; otherwise such bill 
 of sale shall be void in respect of the personal chattels 
 comprised therein. 
 
 9. A bill of sale made or given by way of security for 
 the payment of money by the grantor thereof shall be 
 void unless made in accordance with the form in the 
 schedule to this Act annexed. 
 
 1 0. The execution of every bill of sale by the grantor 
 shall be attested by one or more credible witness or 
 witnesses not being a party or parties thereto. So much 
 of section ten of the principal Act as requires that the 
 execution of every bill of sale shall be attested by a 
 solicitor of the Supreme Court, and that the attestation 
 shall state that before the execution of the bill of sale 
 the'effect thereof has been explained to the grantor by 
 the attesting witness, is hereby repealed. 
 
 12. Every bill of sale made or given in consideration 
 of any sum under thirty pounds shall be void.
 
 APPENDIX A. 435 
 
 13. All personal chattels seized, or of which posses- 
 sion is taken after the commencement of this Act, un- 
 der or by virtue of any bill of sale (whether registered 
 before or after the commencement of this Act), shall 
 remain on the premises where they were so seized or so 
 taken possession of, and shall not be removed or sold 
 until after the expiration of live clear days from the day 
 they were seized or so taken possession of. 
 
 14. A bill of sale to which this Act applies shall be 
 no protection in respect of personal chattels included 
 in such bill of sale, which, but for such bill Of sale, 
 would have been liable to distress under a warranty for 
 the recovery of taxes and poor and other parochial rates. 
 
 45 &46 Vict. c. 57 (1882). 
 
 An Act to amend the law relating to Costs and Salaries 
 in County Courts. 
 
 5. Notwithstanding any Act of Parliament or any 
 rule to the contrary it shall be in the power of the judge 
 of a county court to award costs on the higher scale to 
 the plaintiff on any amount recovered, however small, 
 or to the defendant who successfully defends an action 
 brought for any amount, however small, provided the said 
 judge certify that the action involved some novel or 
 difficult point of law, or that the question litigated was 
 of importance to some class or body of persons or of 
 general or public interest. 
 
 45 & 46 Vict. c. 61 (1882). 
 
 An Act to codify the law relating to Bills of Exchange 
 Cheques, and Promissory Notes. 
 
 22. — (1. ) Capacity to incur liability as a party to a 
 bill is co-extensive with capacity to contract. 
 
 Provided that nothing in this section shall enable a 
 corporation to make itself liable as drawer, acceptor, or
 
 436 APPENDIX A. 
 
 indorser of a bill unless it is competent to it so to do 
 under the law for the time being in force relating to 
 corporations. 
 
 (2.) Where a bill is drawn or indorsed by an infant, 
 minor, or corporation having no capacity or power to 
 incur liability on a bill, the drawing or indorsement 
 entitles the holder to receive payment of the bill, and to 
 force it against any other party thereto. 
 
 23. No person is liable as drawer, indorser, or acceptor 
 of a bill who has not signed it as such: Provided that — 
 
 (1.) Where a person signs a bill in a trade or as- 
 sumed name, he is liable thereon as if he had 
 signed it in his own name : 
 
 (2.) The signature of the name of a firm is equiva- 
 lent to the signature by the person so signing of 
 the names of all persons liable as partners in 
 that firm. 
 
 24. Subject to the provisions of this Act, where a 
 signature on a bill is forged or placed thereon without 
 the authority of the person whose signature it purports 
 to be, the forged or unauthorised signature is wholly 
 inoperative, and no right to retain the bill or to give a 
 discharge therefor or to enforce payment thereof against 
 any party thereto can be accpuired through or under that 
 signature, unless the party against whom it is sought 
 to retain or enforce payment of the bill is precluded 
 from setting up the forgery or want of authority. 
 
 Provided that nothing in this section shall affect the 
 ratification of 'an unauthorised signature not amounting 
 to a forgery. 
 
 25. A signature by procuration operates as notice that 
 the agent has but a limited authority to sign, and the 
 principal is only bound by such signature if the agent 
 in so signing was acting within the actual limits of his 
 authority. 
 
 26. — (1.) Where a person signs a bill as drawer, in- 
 dorser, or acceptor, and adds words to his signature, in- 
 dicating that he signs for or on behalf of a principal, 
 or in a representative character, he is not personally lia- 
 ble thereon; but the mere addition to his signature of 
 words describing him as an agent, or as filling a repre- 
 sentative character, does not exempt him from personal 
 liability. 
 
 (2.) In determining whether a signature on a bill is 
 that of the principal or that of the agent by whose hand 
 it is written, the construction most favourable to the 
 validity of the instrument shall be adopted.
 
 APPENDIX A. 437 
 
 53. — (1.) A bill of itself does not operate as an as- 
 signment of funds in the hands of the drawee available 
 for the payment thereof, and the drawee of a bill who 
 does not accept as required by this Act is not liable on 
 the instrument. This sub-section shall not extend to 
 Scotland. 
 
 (2.) In Scotland, where the drawee of a bill has in 
 his hands funds available for the payment thereof, the 
 bill operates as an assignment of the sum for which it 
 is drawn in favour of the holder, from the time when 
 the bill is presented to the drawee. 
 
 54. The acceptor of a bill, by accepting it — 
 
 ( 1. ) Engages that he will pay it according to the 
 
 tenor of his acceptance. 
 (2.) Is precluded from denying to a holder in due 
 
 course . 
 
 (a.) The existence of the drawer, the genuine- 
 ness of his signature, and his capacity and 
 authority to draw the bill ; 
 
 (b.) In the case of a bill payable to drawer's 
 order, the then capacity of the drawer to in- 
 dorse, but not the genuiness or validity of his 
 indorsement ; 
 
 (c. ) In case of a bill payable to the order of a 
 third person, the existence of the payee and 
 his then capacity to indorse, but not the gen- 
 uineness or validity of his indorsement. 
 
 55. — (1. ) The drawer of a bill by drawing it — 
 
 (a.) Engages that on due presentment it shall 
 be accepted and paid according to its tenor, 
 and that if it be dishonoured he will compen- 
 sate the holder or any indorser who is com- 
 pelled to pay it, provided that the requisite 
 proceedings on dishonor be duly taken ; 
 
 (b.) Is precluded from denying to a holder in 
 due course the existence of the payee and his 
 then capacity to indorse. 
 (2.) The endorser of a bill by endorsing it — • 
 
 (a.) Engages that on due presentment it shall 
 be accepted and paid according to its tenor, 
 and that if it be dishonored he will compensate 
 the holder or a subsequent indorser who is 
 compelled to pay it, provided that the requisite 
 proceedings on dishonor be duly taken ; 
 
 (6.) Is precluded from denying to a holder in 
 due course the genuineness and regularity in 
 all respects of the drawer's signature and all 
 previous indorsements ;
 
 438 APPENDIX A. 
 
 (c. ) Is precluded from denying to his immediate 
 or a subsequent indorsee that the bill was at 
 the time of his endorsement a valid and sub- 
 sisting bill, and that he had then a good title 
 thereto. 
 
 56. "Where a person signs a bill otherwise than as 
 drawer or acceptor he thereby incurs the liabilities of 
 an indorser to a holder in due course. 
 
 57. Where a bill is dishonoured, the measure of dam- 
 ages, which shall be deemed to be liquidated damages, 
 shall be as follows : 
 
 (1. ) The holder may recover from any party liable on 
 the bill, and the drawer who has been compelled 
 to pay the bill may recover from the acceptor, 
 and an endorser who has been compelled to pay 
 the bill may recover from the acceptor or from 
 the drawer, or from a prior indorser — 
 (a.) The amount of the bill : 
 (6.) Interest thereon from the time of present- 
 ment for payment if the bill is payable on 
 demand, and from the maturity of the bill in 
 any other case : 
 (c. ) The expenses of noting, or, when protest is 
 necessary, and the protest has been extended, 
 the expenses of protest. 
 (2.) In the case of a bill which has been dishonoured 
 abroad, in lieu of the above damages the holder 
 may recover from the drawer or an endorser,and 
 the drawer or an indorser who has been compell- 
 ed to pay the bill may recover from any party 
 liable to him, the amount of the re-exchange 
 with interest thereon until the time of payment. 
 (3.). Where by this Act interest may be recovered as 
 damages, such interest may, if justice require 
 it, be withheld wholly or in part, and where a 
 bill is expressed to be payable with interest at a 
 given rate, interest as damages may or may not 
 be given at the same rate as interest proper. 
 
 (For other sections of this Act, see pp. 2, 146, and 
 147.)
 
 APPENDIX A. 439 
 
 45 &4G Viot. c. 75 (1SS2). 
 
 An Act to consolidate and amend the Acts relating to 
 the Property of Married Women. 
 
 1. — (1.) A married woman shall, in accordanco with 
 the provisions of this Act, be capable of acquiring, hold- 
 ing, and disposing by will or otherwise, of any real or 
 personal property, as her separate property, in the same 
 manner as if she were a feme sole, without the interven- 
 tion of any trustee. 
 
 (2.) 'A married woman shall be capable of entering 
 into and rendering herself liable in respect of and to 
 the extent of her separate property on any contract, and 
 of suing and being sued either in contract or in tort, or 
 otherwise, in all respects as if she were a feme sole, and 
 her husband need not be joined with her as plaintiff or 
 defendant, or be made a party to any action or other 
 legal proceeding brought by or taken against her; and 
 any damages or costs recovered by her in any such ac- 
 tion or proceeding shall be her separate property; and 
 any damages or costs recovered against her in any such 
 action or proceeding shall be payable out of her sepa- 
 rate property, and not otherwise. 
 
 ( 3. ) Every contract entered into by a married woman 
 shall be deemed to be a contract entered into by her 
 with respect to and to bind her separate property, un- 
 less the contrary be shown. 
 
 (4. ) Every contract entered into by a married woman 
 with respect to and to bind her separate property shall 
 bind not only the separate property which she is pos- 
 sessed of or entitled to at the date of the contract, but 
 also all separate property which she may thereafter 
 acquire. 
 
 (5. ) Every married woman carrying on a trade sepa- 
 rately froin her husband shall, in respect of her separate 
 property, be subject to the bankruptcy laws in the same 
 way as if she were a feme sole. 
 
 2. Every woman who marries after the commencement 
 of this Act shall be entitled to have and to hold as her. 
 separate property and to dispose of in manner afore- 
 said all real and personal property which shall belong 
 to her at the time of marriage, or shall be acquired by 
 or devolve upon her after marriage, including any 
 wages, earnings, money, and property gained or ac- 
 quired by her in any employment, trade or occupation
 
 440 APPENDIX A. 
 
 in which she is engaged, or which she carries on sepa- 
 rately from her husband, or by the exercise of any lit- 
 erary, artistic or scientific skill. 
 
 5. Every woman married before the commencement 
 of this Act shall be entitled to have and to hold and to 
 dispose of in manner aforesaid as her separate property 
 all real and personal property, her title to which, whether 
 vested or contingent, and whether in possession, rever- 
 sion or remainder, shall accrue after the commencement 
 of this Act, including any wages, earnings, money, and 
 property so gained or acquired by her as aforesaid. 
 
 11. A married woman may by virtue of the power of 
 making contracts hereinbefore contained effect a policy 
 upon her own life or the life of her husband for her 
 separate use; and the same and all benefit thereof shall 
 enure accordingly. 
 
 A policy of assurance effected by any man on his own 
 life, and expressed to be for the benefit of his wife, or of 
 his children, or of his wife and children, or any of them, 
 or by any woman on her own life, and expressed to be 
 for the benefit of her husband, or of her children, or of 
 her husband and children, or any of them, shall create 
 a trust in favour of the objects therein named, and the 
 moneys payable under any such policy shall not, so long 
 as any object of the trust remains unperformed, form 
 part of the estate of the insured, or be subject to his or 
 her debts: Provided that if it shall be proved that the 
 policy was effected and the premiums paid with intent 
 to defraud the creditors of the insured, they shall be 
 entitled to receive, out of the moneys payable under 
 the policy, a sum equal to the premiums so paid. The in- 
 sured may by the policy, or by any memorandum under 
 his or her hand, appoint a trustee or trustees of the 
 moneys payable under the policy, and from time to time 
 appoint a new trustee or new trustees thereof, and may 
 make provision for the appointment of a new trustee or 
 new trustees thereof, and for the investment of the 
 moneys payable under any such policy. In default of 
 any such appointment of a trustee, such policy, imme- 
 diately on its being effected, shall vest in the insured 
 and his or her legal personal representatives, in trust 
 for the purposes aforesaid. If, at the time of the death 
 of the insured, or at any time afterwards, there shall 
 be no trustee, or it shall be expedient to appoint a new 
 trustee or new trustees, a trustee or trustees or a new trus- 
 tee or new trustees may be appointed by any court Lav- 
 ing jurisdiction under the provisions of the Trustee Act,
 
 APPENDIX A. 441 
 
 1850, or the Acts amending and extending the same. 
 The receipt of a trustee or trustees duly appointed, or 
 in default of any such appointment, or in default of no- 
 tice to the insurance office, the receipt of the legal per- 
 sonal representative of the insured, shall be a discharge 
 to the office for the sum secured by the policy, or for the 
 value thereof, in whole or in part. 
 
 12. Every woman, whether married before or after 
 this Act, shall have in her own name against all persons 
 whomsoever, including her husband, the same civil rem- 
 edies, and also (subject, as regards her husband, to the 
 proviso hereinafter contained) the same remedies and 
 redress by way of criminal proceedings, for the protec- 
 tion and security of her own separate property, as if 
 such property belonged to her as a feme sole ; but, ex- 
 cept as aforesaid, no husband or wife shall be entitled to 
 sue the other for a tort. In any indictment or other 
 proceeding under this section it shall be sufficient to al- 
 lege such property to be her property; and in any pro- 
 ceeding under this section a husband or wife shall be 
 competent to give evidence against each other, any 
 statute or rule of law to the contrary notwithstanding: 
 Provided always, that no criminal proceeding shall be 
 taken by any wife against her husband by virtue of this 
 Act while they are living together, as to or concerning 
 any property claimed by her, nor while they are living 
 apart, as to or concerning any act done by the husband 
 while they were living together, concerning property 
 claimed by the wife, unless such property shall have 
 been wrongfully taken by the husband when leaving or 
 deserting, or about to leave or desert, his wife. 
 
 13. A woman after her marrage shall continue to be 
 liable in respect and to the extent of her seperate pro- 
 perty for all debts contracted, and all contracts entered 
 into or wrongs committed by her before her marriage, 
 including any sums for which she may be liable as a con- 
 tributory, either before or after she has been placed on 
 the list of contributories, under and by virtue of the Acts 
 relating to joint stock companies, and she may be sued 
 for any such debt and for any liability in damages or 
 otherwise under any such contract, or in respect of 
 any such wrong; and all sums recovered against her in 
 respect thereof, or for any cost relating thereto, shall be 
 payable out of her separate property, and as between her 
 and her husband, unless there be any contract between 
 them to the contrary, her separate property shall be 
 deemed to be primarily liable for all such debts, con-
 
 442 APPENDIX A. 
 
 tracts, or wrongs, and for all damages or costs recovered 
 in respect thereof : Provided always, that nothing in 
 this Act shall operate to increase or diminish the lia- 
 bility of any woman married before the commencement 
 of this Act for any such debt, contract, or wrong as 
 aforesaid, except as to any separate property to which 
 she may become entitled by virtue of this Act, and to 
 which she would not have been entitled for her separate 
 use under the Acts hereby repealed or otherwise, if this 
 Act had not passed. 
 
 14 A husband shall be liable for the debts of his wife 
 contracted, and for all contracts entered into and wrongs 
 committed by her, before marriage, including any liabil- 
 ities to which she may be so subject under the Acts re- 
 lating to joint stock companies as aforesaid, to the extent 
 of all property whatsoever belonging to his wife which 
 he shall have acquired or become entitled to from or 
 through his wife, after deducting therefrom any payments 
 made by him, and any sums for which judgment may 
 have been bond fide recovered against him in any pro- 
 ceeding at law, in respect of any such debts, contracts, 
 or wrongs for or in respect of which his wife was liable 
 before her marriage as aforesaid; but he shall not be 
 liable for the same any further or otherwise ; and any 
 court in which a husband shall be sued for any such 
 debt shall have power to direct any inquh'y or proceed- 
 ings in which it may think proper for the purpose of 
 ascertaining the nature, amount, or value of such prop- 
 erty: Provided always, that nothing in this Act contain- 
 ed shall operate to increase or diminish the liability of 
 any husband married before the commencment of this 
 Act for or in respect of any such debt or other liability 
 of his wife as aforesaid. 
 
 15. A husband and wife may be jointly sued in re- 
 spect of any such debt or other liability (whether by con- 
 tract or for any wrong) contracted or incurred by the 
 wife before marriage as aforesaid, rf the plaintiff in the 
 action shall seek to establish his claim, either wholly or 
 in part, against both of them; and if any in such action, 
 or in any action brought in respect of any such' debt or 
 liability against the husband alone, it is not found that 
 the husband is liable in respect of any property of the 
 wife so acquired by him or to which he shall have be- 
 come so entitled as aforesaid, he shall have judgment 
 for his costs of defence, whatever may be the result of 
 the action against the wife if jointly sued with him; and 
 in any such action against husband and wife jointly,
 
 APPENDIX A. 443 
 
 if it appears that tho husband is liable for the debt or 
 damages recovered, or any part thereof, the judgment 
 to the extent of tho amount for which tho husband is 
 liable shall bo a joint judgment against the husband 
 personally and against the wife as to her separate prop- 
 erty ; and as to the residue, if any, of such debt and 
 damages, tho judgment shall be a separate judgment 
 against the wife as to her separate property only. 
 
 16. A wife doing any act with respect to any property 
 of her husband, which, if done by the husband with 
 respect to property of the wife, would make the husband 
 liable to criminal proceedings by the wife under this 
 Act, shall in like manner be liable to criminal proceed- 
 ings by her husband. 
 
 22. The Married Women's Property Act, 1870, and 
 the Married "Women's Property Act, 1870, Amendment 
 Act, 1874, are hereby repealed : Provided, that such 
 repeal shall not affect any act done or right acquired 
 while either of such Acts was in force, or any right or 
 liability of any husband or wife, married before the 
 commencement of this Act, to sue, or be sued under the 
 provisions of the said repealed Acts or either of them, 
 for or in respect of any debt, contract, wrong, or other 
 matter or thing whatsoever, for or in respect of which 
 any such right or liability shall have accrued to or 
 against such husband or wife before the commencement 
 of this Act. 
 
 46 & 47 Vict. c. 61 (1883). 
 
 An Act for Amending the haw relating to Agricultural 
 Holdings in England. 
 
 1. Subject as in this Act mentioned, where a tenan 
 has made on his holding any improvement comprised in 
 the First Schedule hereto, he shall, on and after the 
 commencement of this Act, be entitled, on quitting his 
 holding at the determination of a tenancy, to obtain 
 from the landlord as compensation under this Act for 
 such improvement such sum as fairly represents the 
 value of the improvement to an incoming tenant : Pro- 
 vided always, that in estimating the value of any im- 
 provement in the First Schedule hereto there shall not 
 be taken into account as part of the improvement made
 
 444 APPENDIX A. 
 
 by the tenant what is justly due to the inherent capa- 
 bilities of the soil. 
 
 7. A tenant claiming compensation under this Act 
 shall, two months at least before the determination of 
 the tenamcy, give notice in writing to the landlord of 
 his intention to make such claim. 
 
 Where a tenant gives such notice, the landlord may, 
 before the determination of the tenancy, or within four- 
 teen days thereafter-, give a counter-notice in writing to 
 the tenant of his intention to make a claim in respect of 
 any waste or any breach of covenant or other agree- 
 ment. 
 
 Every such notice and counter- notice shall state, as 
 far as reasonably may be, the particulars and amount 
 of the intended claim. 
 
 33. Where a half-year's notice, expiring with a year 
 of tenancy, is by law necessary and sufficient for deter- 
 mination of a tenancy from year to year, in the case of 
 any such tenancy under a contract of tenancy made 
 either before or after the commencement of this Act, a 
 year's notice so expiring shall by virtue of this Act be 
 necessary and sufficient for the same, unless the land- 
 lord and tenant of the holding, by writing under their 
 hands, agree that this section shall not apply, in which 
 case a half year's notice shall continue to be sufficient ; 
 but nothing in this section shall extend to a case where 
 the tenant is adjudged bankrupt, or has filed a petition 
 for a composition or arrangement with his creditors. 
 
 34. Where after the commencement of this Act a 
 tenant affixes to his holding any engine, machinery, 
 fencing, or other fixture, or erects any building for 
 which he is not under this Act or otherwise entitled to 
 compensation, and which is not so affixed or erected in 
 pursuance of some obligation in that behalf or instead 
 of some fixture or building belonging to the landlord, 
 then such fixture or building shall be the property of 
 and be removable by the tenant before or within a 
 reasonable time after the termination of the tenancy. 
 
 Provided as follows : — 
 
 (1.) Before the removal of any fixture or building 
 the tenant shall pay all rent owing by him, 
 and shall perform or satisfy all other his obli- 
 gations to the landlord in respect to the hold- 
 ing : 
 
 (2.) In the removal of any fixture or building the
 
 APPENDIX A. 44:5 
 
 tenant shall not do any avoidable damage to any 
 other building or other part of the holding: 
 (3.) Immediately after the removal of any fixture or 
 building the tenant shall make good all damage 
 occasioned to any other building or other part 
 of the holding by the removal: 
 (4. ) The tenant shall not remove any fixture or build- 
 ing without giving one month's previous notice 
 in writing to the landlord nf the intention of 
 the tenant to remove it: 
 (5.) At any time before the expiration of the notice 
 of removal the landlord, by notice in writing 
 given by him to the tenant, may elect to pur- 
 chase any fixture or building comprised in the 
 notice of removal, and any fixture or building 
 thus elected to be purchased shall be left by the 
 tenant, and shall become the property of the 
 landlord, who shall pay the tenant the fair value 
 thereof to an incoming tenant of the holding; 
 and any difference as to the value shall be set- 
 tled by a reference under this Act, as in case of 
 compensation (but without appeal). 
 44. After the commencement of this Act it shall not 
 be lawful for any landlord entitled to the rent of any 
 holding to which this Act applies to distrain for rent, 
 which became due in respect of such holding, more than 
 one year before the making of such distress, except in 
 the case of arrears of rent in respect of a holding to 
 which this Act applies existing at the time of the pass- 
 ing of this Act, which arrears shall be recoverable by 
 distress up to the tirst day of January, one thousand 
 eight hundred and eighty-five, to the same extent as if 
 this Act had not passed. 
 
 Provided that where it appears that according to the 
 ordinary course of dealing between the landlord and 
 tenant of a holding the payment of the rent of such 
 holding has been allowed to be deferred until the expi- 
 ration of a quarter of a year or half a year after the 
 date at which such rent legally became due, then for 
 the purpose of this section the rent of such holding 
 shall be deemed to have become due at the expiration 
 of such quarter or half year as aforesaid, as the case 
 may be, and not at the date at which it legally became 
 due. 
 
 . 45. Where live stock belonging to another person has 
 been taken in by the tenant of a holding to which this 
 
 30 COMMON LAW.
 
 446 APPENDIX A. 
 
 Act applies to be fed at a fair price agreed to be paid 
 for such feeding by the owner of such stock to the ten- 
 ant, such stock shall not be distrained by the landlord 
 for rent where there is other sufficient distress to be 
 found, and if so distrained by reason of other sufficient 
 distress not being found, there shall not be recovered 
 by such distress a sum exceeding the amount of the 
 price so agreed to be paid for the feeding, or if any part 
 of such price has been paid exceeding the amount re- 
 maining unpaid, and it shall be lawful for the owner of 
 such stock, at any time before it is sold, to redeem such 
 stock by paying to the distrainer a sum equal to such 
 price as aforesaid, and any payment so made to the dis- 
 trainer shall be in full discharge as against the tenant 
 of any sum of the like amount which would be other- 
 wise due from the owner of the stock to the tenant in 
 respect of the price of feeding: Provided always, that 
 so long as any portion of such live stock shall remain 
 on the said holding the right to distrain such portion 
 shall continue to the full extent of the price originally 
 agreed to be paid for the feeding of the whole cf siich 
 live stock, or if part of such price has been bond fide 
 paid to the tenant under the agreement, then to the full 
 extent of the price then remaining unpaid. 
 
 Agricultural or other jnachinery which is the bond 
 . fide property of a person other than the tenant, and is 
 on the premises of the tenant under a bond fide agree- 
 ment with him for the hire or use thereof in the conduct 
 of his business, and live stock of all kinds which is the 
 bond fide property of a person other than the tenant, 
 and is on the premises of the tenant solely for breed- 
 ing purposes, shall not be distrained for rent in arrear. 
 
 46. Where any dispute arises — 
 
 (a) In respect of any distress having been levied 
 contrary to the provisions of this Act; or 
 
 (b) As to the ownership of any live stock distrained, 
 or as to the price to be. paid for the feeding of 
 such stock; or 
 
 (c) As to any other matter or thing relating to a 
 distress on a holding to which this Act applies: 
 
 such dispute may be heard and determined by the county 
 court or by a court of summary jurisdiction, and any 
 such county court or court of summary jurisdiction may 
 make an order for restoration of any live stock or things 
 unlawfully distrained or may declare the price agreed 
 to be paid in the case where the price of the feeding is 
 required to be ascertained, or may make any other or-
 
 APPENDIX A. 447 
 
 der which justice requires: any such dispute as men- 
 tioned in this section shall be deemed to be a matter in 
 which a court of summary jurisdiction has authority by 
 law to make an order on complaint in pursuance of the 
 Summary Jurisdiction Acts; but any person aggrieved 
 by any decision of such court of summary jurisdiction 
 under this section may, on giving such security to the 
 other party as the court may think just, appeal to a 
 court of general or quarter sessions. 
 
 54. Nothing in this Act shall apply to a holding 
 that is not either wholly agricultural or wholly pastoral, 
 or in part agricultural, and as to the residue pastoral, 
 or in whole or in part cultivated as a market garden, or 
 to any holding let to the tenant during his continriance 
 in any office, appointment, or employment held under 
 the landlord. 
 
 55. Any contract, agreement, or covenant made by a 
 tenant, by virtue of which he is deprived of his right 
 to claim compensation under this Act in respect of any 
 improvement mentioned in the First Schedule hereto 
 (except an agreement providing such compensation as 
 is by this Act permitted to be substituted for compen- 
 sation under this Act), shall, so far as it deprives him 
 of such right, be void both at law and in equity. 
 
 50. Where an incoming tenant has, with the consent 
 in writing of his landlord, paid to an outgoing tenant 
 any compensation payable under or in pursuance of 
 this Act in respect of the whole or part of any improve- 
 ment, such incoming tenant shall be entitled on quitting 
 the holding to claim compensation in respect of such 
 improvement or part in like manner, if at all, as the 
 outgoing tenant would have been entitled if he had re- 
 mained tenant of the holding, and quitted the holding 
 at the time at which the incoming tenant quits the 
 same.
 
 448 APPENDIX B. 
 
 APPENDIX B. 
 EQUITY AND CONVEYANCING LEADING CASES. 
 
 1. Strathmore v. Bowes. — Conveyance by wife, even the mo- 
 
 ment before marriage, prima facie good, and becomes bad 
 only on imputation of fraud. 
 
 2. Elibank v. Montolieu. — Married woman may come into 
 
 court as plaintiff for equity of settlement. 
 
 3. Murray v. Elibank. — If married women dies after decree 
 
 directing settlement obtained, children entitled to benefit. 
 
 4. Hulme v. Tenant. — Bond entered into by husband and 
 
 wife jointly binds wife's separate estate. 
 
 5. Huntingdon v. Huntingdon. — When wife joins with 
 
 husband in mortgage of her estate of inheritance for his 
 benefit, estate is considered surety only. 
 
 6. Tullett v. Armstrong. — Separate use clause and restraint 
 
 on anticipation attach on subsequt nt marriage. 
 
 7. Legg v. Goldwire. — In case of variance between marriage 
 
 articles made before marriage and settlement made after, 
 articles will prevail; but settlement generally when both 
 have been made before. 
 
 8. Hornsby y. Lee. — Leading case as to what is sufficient re- 
 
 duction into possession of wife's choses in action. 
 
 The gist of the Married Women's Property Act, 1882 (45 & 46 Viet. c. 75), 
 is, as regards her real or personal property, the abolition of the jus maritale. A 
 wife, unless restrained from anticipating, is as a single woman when dealing 
 with her estate; but even now she may be restrained, for purposes of protection, 
 from anticipating her fortune; though if a Court of Equity think it would be for
 
 APPENDIX B. 449 
 
 her benefit the restrain! may be removed (44 & 45 Vict. c. 41, s.39). The new Act 
 would seem to render suits grounded on fraud or marital rights (Strathmore v. 
 Bowes, &C. I impossible lor a man cannot be defrauded of that to which he is not 
 entitled. So,too, suits by the wife claiming an equity to a settlement i Elibank v, 
 Montolieu,&c.) will be unnecessary, for on property devolving on her from any 
 source, she becomes by law entitled to the whole. Settlements, broadly speak- 
 ing, remain unaffected by the Act. See Wcnman v. Ash, p. 362. 
 
 f Equity will decree specific de- 
 
 9. Pusey v. Pusey. 
 10. Somerset v. Cookson. 
 
 livery up of chattels (e.g., his- 
 toric horus or ancient altar- 
 pieces ) when damages would 
 I be no compensation. 
 But where an artist sought restitution of a picture he bad painted himself, 
 and it appeared that he had in effect put a fixed price upon it, it was held that 
 damages would be an adequate remedy. Dowlingv. Betjeman, 2 J. & H. 544. 
 See Wood v. Rowcliffe, 3 Hare, 304 ; Fells v. Read, 3 Ves. 70 ; and Macclesfield 
 v. Davis, 2 V. & B. 1G ; also 17 & 18 Vict. c. 125, s. 78, and Order 49 of Judica- 
 ture Act Rules. 
 
 11. Cuddee v. Rutter. — Equity will not decree specific perform- 
 
 ance of agreement to transfer South Sea stock, since dam- 
 ages would afford sufficient compensation. 
 
 12. Seton v. Slade. — Equity will decree specific performance 
 
 against vendee, though vendor has not made title within 
 time agreed. 
 
 Equity will not decree specific performance of agreement illegal or without 
 consideration, nor of contracts for personal services, nor of contracts to build or 
 repair. See Lumley v. Wagner, 5 De G. & Sm. 485 ; Jefferys v. Jefferys, Cr. 
 & 1'h. 141 ; and Emington v. Aynsley, 2 Bro. C. C. 343. 
 
 13. Lester v. Foxcroft. — Specific performance of a parol agree- 
 
 ment to grant a lease decreed, notwithstanding the Statute of 
 Frauds, after acts of part performances on the part of the 
 lessee by pulling down an old house and building new houses 
 according to the terms of the agreement 
 See Boi/deU v. Drummond, p. 32. 
 
 14. Woollam v. Hearn. — Plaintiff cannot go into parol evi- 
 
 dence to get specific performance of contract with variation ; 
 but defendant resisting specific performance may so show 
 that by fraud, accident, or mistake written agreement does 
 not express real terms. 
 See Martyn v. Pycroft. 2 He G. M. & G. 785 ; Parker v. Taswell, 2 De G. & 
 Jo. 559 ; Townshend v. Stangroom, Ves. 328.
 
 450 APPENDIX B. 
 
 15. Penn v. Baltimore. — Equity acts in personam, and, if parties 
 are here, will decree specific performance of contract relating 
 to property abroad. 
 
 See Scott v. Nesbitt, J 4 Ves. 438; Cranstown v. Johnston, 3 Ves. 170 ; Rober- 
 dean v. Rous, 1 Atk. 543 ; and Fabrigas v. Mostyn, p. 384. Where the lands 
 are out of the jurisdiction, though in a colony, the Court of Chancery cannot 
 affect them otherwise than by proceedings in personam. 
 
 16 Pawlett v. Pawlett. — When child intended to be benefited 
 
 dies, portion will not be raised ; legacy will. 
 
 See King v. Withers, 3 P. Wins. 414 ; Godwin v. Munday, 1 Bro. Ch. Ca. 
 191 ; (Jawler v. Standewicke, 1 Bro. C. C. 106 ; and Smith v. Smith, 2 Vern. 92. 
 
 Cases laying down rules to tell 
 whether devise or bequest is 
 vested or contingent^. (/., word 
 
 17. Boraston's case. 
 
 18. Stapleton v. Cheales. i "ivhen" in -will standing alone 
 
 19. Hanson v. Graham. is conditional,bnt may be con- 
 trolled by context, &c, so as 
 to postpone payment only. 
 
 A bequest to a person payable or to be paid at or when he shall attain twenty- 
 one years of age, or at the end of any other certain determinate term, confers 
 on him a vested interest immediately on the testator's death, as debitum in 
 praesenti, solvendum in futuro, and transmissible to his executors or administra- 
 tors, unless, indeed, it clearly appears to have been the testator's intention that 
 the time of payment should be the time of vesting. See Sydney I'.Vaughan, 2 
 Bro. Pari. Ca. 254 ; Jackson v. Jackson, 1 Ves. sen. 217 ; Bolger v. Mackell, 5 
 Ves. 509 ; and Atkins v. Hiscocks, 1 Atk. 500. 
 
 20. Hooley v. Hatton. — If testator gives a person a legacy of 
 
 £500 by will, and afterwards of £1000 by codicil, person 
 takes both. 
 
 But legacies of equal amount given by the same instrument are merely repeti- 
 tions. Parol evidence, however, would be admissible to show that the testator 
 meant the legatee to have both legacies. The same specific thing cannot be 
 given twice. Gifts by different instruments of the same amount, and expressed 
 to be given from the same motive, are substitutional. See Hunt v. Beach, 5 Madd. 
 351 : Guy v. Sharp, 1 M. & K. 589 ; Benyon v. Benyon, 17 Ves. 34 ; and Os- 
 borne v. Duke of Leeds, 5 Ves. 369. 
 
 21. Ashburner v. Macguire. — Specific legacy is liable to 
 
 ademption by act of testator in his lifetime, but does not 
 abate.
 
 APPENDIX B. 451 
 
 A specific legacy is adeemed if it is converted by the testator into something 
 else, or perishes by viamajor. But a direction to sell notcarried out till aftei the 
 testator's death will not be an ademption. Nor is the removal of furniture for 
 a merely temporary purpose. See Norreys v. Franks, L. R. 9 Eq. 18; Harri- 
 son v. Asher, 2 De G. & S. 436 ; Durrant v. Friend, 5 De G. & S. 343 ; and Jen- 
 kins v. Jones, L. K. 2 Eq. 3:23. 
 
 22. Elliott v. Davenport. — If legatee dies; in testator's life- 
 
 time, legacy lapses, although given to the legatee, his execu- 
 tors, administrators, and assigns. 
 
 And a mere negative provision to the effect that a lapse shall not take place by 
 the predecease of the legatee, is not sufficient to prevent lapse, unless it is clear 
 that the legacy is to go to the estate of the legatee in the event of his death. 
 See Pickering v. Stamford, 3 Ves. 493 ; Maybank v. Brooks, 1 B. C. C. 84 ; and 
 Page v. Page, 2 P. Wms. 489. 
 
 23. Viner v. Francis. — If testator gives £2000 to the children 
 
 of his deceased sister, he means those living at his death. 
 
 In the case of gifts to a class as tenants* in common, the shares of members 
 of the class dying hefore the testator do not lapse, but go to the other members 
 of the class. 
 
 24. Leventhorpe v. Ashbie. — Bequest of personalty in such 
 
 terms as would have given estate tail in devise of realty gives 
 absolute interest. 
 
 So a bequest of personalty to a man and his heirs would pass the absolute in- 
 terest. See Doncaster v. Doncaster, 3 Kay & J. 26. 
 
 25. Corbyn v. French. — Legacy of £500 to trustees of chapel 
 
 to discharge mortgage on chapel, void under Mortmain Act. 
 
 The Mortmain Act (9 Geo. II. c. 36) in effect prevents testators from leaving 
 their lands to charities. If a man wants to dispose of his lands in that way, he 
 must do it by deed executed twelve months before his death, and enrolled in 
 Chancery within six months. Exceptions, howevei, exist in favour of the uni- 
 versities, the colleges^(or schools) of Eton, Winch ester, and Westminster, sites for 
 schools or for places of religious worship, literary and scientific institutions, 
 public parks, &c. The Act has been so strictly construed as to prohibit the 
 bequest for charitable purposes of personal estate in any degree savouring of 
 the realty. See 24 Vict. c. 9 ; 27 Vict. c. 13 : 33 & 34 Viet. c. 34 : 31 Vict, c 
 13 : 35 & 36 Vict. c. 24 ; and the recent case of Jervis v. Lawrence, 17 L. T., 
 N. S. 428. 
 
 26. Scott v. Tyler. — Conditions annexed to legacies, &c, 
 
 operating unduly in restraint of marriage null and void. 
 
 See Loire v. Peers, p. 133.
 
 452 APPENDIX 15. 
 
 27. Howe v. Dartmouth. — Where testator intended successive 
 
 interests which cannot otherwise take effect, conversion into 
 permanent securities bearing interests. 
 But their will be no such conversion it" it appears from the will that the tes- 
 tator's intention was that the property should be enjoyed in specie. 
 
 28. Forth v. Chapman. — Words " without leaving issue," when 
 
 realty is concerned, mean general failure of issue ; when per- 
 sonalty, failure of issue at death. 
 See 7 Will. IV. & 1 Vict. c. 26, s. 29. 
 
 29. Braybroke v. Inskip. — Trust estate prima facie passes by- 
 
 general devise. 
 The .'50th section of the 1831 Conveyancing Act (44 & 45 Vict. c. 41), how- 
 ever, provides for the devolution of trust and mortgage estates on death to per- 
 sonal representatives like chattels real. 
 
 30. Gardner v. Sheldon. — Devise to Jones after death of Brown 
 
 gives Brown estate for life by implication, if Jones is heir- 
 at-law of testator ; otherwise, no estate. 
 An heir-at-law cannot he disinherited except by necessary implication. 
 
 31. "Wild's case. — Devise to person and his children gives estate 
 
 tail if he has no children at time of devise. 
 The rule does not apply to personalty. Audsley v. Horn, 26 B. 195. It ap- 
 plies, however, though the testator may expressly give the parent a power of 
 appointing the property among his children. See Clifford v. Koe, 5 App. Ca. 
 447. and Re P.iickmaster's Estate, 47 L. T., N. S. 514. 
 
 32. Harding v. Glyn. — Words expressing testator's icish or de- 
 
 sire constitute trust. 
 
 But words of recommendation used must he such that upon the whole they 
 ought to be construed as imperative. 
 
 33. Eyre v. Shaftesbury. — Guardianship given by will to 
 
 three persons devolves on survivor, although no words in will 
 
 expressly saying so. 
 12 Car. II. c. 24. gives a father power to appoint a guardian either by deed 
 or will, and the right of this guardian will prevail over that of all other guar- 
 dians, since he stands in the father's place. 36 Vict. c. 12, enables the Court 
 of Chancery to order that a mother shall have access to, and the custody of, her 
 children onder sixteen. See the Agar Ellis case, 10 Ch. D. 49 ; In re Taylor. 4 
 Ch. I). 1">7: /<* re Goldsworfhy, 2 Q. B. I). 75: Hawksworth w. Hawksworth, 
 6 CI. 539 : and In re Clarke, 31 W. R. 37. It may be added that the father, if 
 underage, cannot now appoint a guardian by will, for theWills Act (7 Will. IV & 
 1 Viet. c. 26) enacts that no will made by any person under twenty-one shall 
 be valid.
 
 APPENDIX B. 
 
 453 
 
 34. Cadell v. Palmer. — Limitation by way of executory devise, 
 
 not to take effect till after determination of life or lives in 
 being, and term of twenty -one years as term in gross, and 
 without reference to infancy of any person, valid; further 
 period allowed for gestation, where it actually exists. 
 
 35. Griffiths v. Vere. — Trust by will for accumulation during a 
 
 life contrary to Thellusson Act, good for twenty-one years. 
 
 The Thellusson Act (39 & 40 <$eo. III. c. 98) says, in effect, that no accumu- 
 lation of income shall take place for longer than the lives of the grantors, or 
 twenty-one years from the death of the grantors, or during the minority of per- 
 sons living at the death of the grantors, or during the minority only of any 
 person who under the settlement or will would for the time, being, if of full 
 age, be entitled to the income so directed to be accumulated. The Act. how- 
 ever, is not to apply to provisions for payment of debts, portions for children, 
 or produce of timber. This Act, it may be mentioned, " was occasioned by the 
 extraordinary will of the late Mr. Thellusson, who directed the income of his 
 property to be accumulated during the lives of all his children, grandchildren, 
 and great grandchildren who were living at the time of his death, for the benefit 
 of some future descendants to be living at the decease of the survivor; thus 
 keeping strictly within the rule which allowed any number of existing lives 
 to be taken as the period for an executory interest" (i). 
 
 36. Talbot v. Shrewsbury. 
 
 37. Chancey's case. 
 
 Request by debtor to creditor of 
 sum equal to or greater than 
 debt, a satisfaction; other- 
 wise, if sum bequeathed less 
 than debt, or there is express 
 direction in will for payment 
 of debts and legacies. 
 
 Satisfaction may be defined to be the making of a donation with the express 
 or implied intention that it shall be taken as an extinguishment of some claim 
 which the donee has upon the donor. The intention of the donor is the prin- 
 cipal thing to be considered. • In Chancey's case (1 P. Wins. 408) just referred 
 to, a man who was indebted to his maid-servant for wages to the amount of 
 £100 gave her a bond for that sum. Afterwards, by will, lie gave her £."">00 for 
 her long and faithful services, and directed "that all his debts and legacies 
 should be paid." It was held that the legacy was not a satisfaction tor the 
 debt due on the bond, and that the maid-servant was entitled to be paid both. 
 
 (j) Wms. R. P., loth ed., p. 372.
 
 454 
 
 APPENDIX B. 
 
 39. Noys r. Mordaunt. 
 
 40. Streatfield v. Streatfield. 
 
 41. Brodie v. Barrie. 
 
 42. Cooper v. Cooper. 
 
 38. Ex parte Pye. — Court leans against double portions, and 
 therefore if parent, after giving legacy to child, advances 
 portion on marriage, a satisfaction. 
 
 The cases on the doctrine of satisfaction have heen divided into four classes, 
 viz : — 
 
 ] The satisfaction of debts by legacies. 
 : .'. The satisfaction of legacies by subsequent legacies. 
 3. The satisfaction of legacies by portions. 
 I The satisfaction of portions by legacies. 
 See Warren v. "Warren, 1 B. C. C. 305; Lire Tussaud's Estate, 9 Ch. D. 363; 
 Dowse v. Glass, 50 L. J. Ch. 285; and Atkinsop v. Littlewood, 18 Eq. 5D5. In 
 the case of double provisions, the doctrine .of satisfaction does not in general 
 apply to legacies and portions to strangers, but only where the parental rela- 
 tion, or its equivalent, exists. 
 
 Leading cases on Election, 
 which is "the choosing be- 
 tween two rights by a per 
 son who derives one of them 
 under an instrument in 
 which a clear intention ap- 
 pears that he should not en- 
 joy both." 
 
 "Noys r. Mordaunt and Streatfield v. Streatfield," it is said in White and 
 Tudor s Equity Leading cases, 4th ed., p. 341, "are printed together, since they 
 are usually cited as having conclusively established the doctrine of election, 
 which is founded upon the principle that there is an implied condition that he 
 who accepts a benefit under an instrument must adopt the whole of it, con- 
 forming with all its provisions, and renouncing every right inconsistent with it.'' 
 
 Leading cases on Performance, 
 which proceeds on the princi- 
 ple that "where a person cove- 
 nants to do an act, and he does 
 that which may either wholly or 
 partially be converted to or to- 
 wards a completion of the cov- 
 enant, he shall be presumed to 
 have done it with that inten- 
 tion.'' 
 
 "Equity will impute an intention to fulfil an obligation." The distinction 
 between Satisfaction and P< rformanee is that in the former case there is a sub- 
 stitution of something different, while in the latter the thing agreed to be done 
 is in truth wholly or in part performed. 
 
 43. Wilcocks v. Wilcocks. 
 
 44. Blandy v. Widmore.
 
 APPENDIX B. 455 
 
 45. Hiscocks v. Hiscocks. — Parol evidence sometimes admis- 
 
 ibie to rectify mistake in will. 
 
 See p. :>(>. Where a will shown not to have been revoked cannot be found 
 at the testator's death, evidence may be given to prove its contents. See 
 Sugden v. Lord St. Leonards, 1 P. D. 154. 
 
 46. "Ward. v. Turner. — Delivery necessary to donations mortis 
 
 causa; but the delivery of receipts for South Sea Annuities 
 is not sufficient, though strong evidence of the intent. 
 See Irons v. Smallpiece, p. 373. 
 
 47. Silk v. Prime. — Lands charged with payment of debts, 
 
 equitable assets, and distributable amongst creditors pari 
 passu. 
 The doctrine of equitable assets, however, has lost its former importance. 
 See 32 & 33 Vict. c. 46. 
 
 48. Ancaster V. Mayer. — General personal estate primarily 
 
 liable for payment of debts. 
 "But of course the testator may have exonerated it from its primary 
 liability, and such exoneration may be either express or implied. Thus, if the 
 testator has appropriated any specific part of his personal estate for the pay- 
 ment of his debts, and has also disposed of his general residuary personal (state, 
 the part so appropriated will be primarily liable to the payment of the debts 
 in exoneration of the general residuary estate. It requires, however, very clear 
 language on the part of the testator to exonerate his general personal estate 
 from its primary liability to the payment of his debts; and to do this at the 
 expense of the real estate, he must show an intention not only to charge lii> 
 real estate with his debts, but also to exonerate his personal estate there- 
 from " (A-). 
 
 49. Aldrich v. Cooper. — Leading case on Marshalling, which 
 
 proceeds on the principle that " a person having two funds 
 to satisfy his demands shall not by his election disappoint a 
 person who has only one fund." 
 
 The order in -which the assets of a testator are applied in administration is 
 as follows:— 
 
 (1.) The general personal estate. 
 
 (2.) Real estate devised for payment of del its. 
 
 (3.) Real estate descending to the heir. 
 
 (4.) Real estate charged with debts and devised or descended. 
 
 (5. ) General legacies. 
 
 (6.) Real estate devised not charged with debts and specific gifts. 
 
 (7.) Property appointed. 
 
 (8.) Paraphernalia of widow. 
 
 ,/. Snell's Equity, 6th ed., p. 226.
 
 52. Aleyn v. Belcher. 
 
 53. Topham v. Duke of Portland. 
 
 456 APPENDIX B. 
 
 50. Alexander v. Alexander. — In aa excessive execution of 
 
 a power, excess only is void, if boundary lines clear. 
 
 51. Toilet r. Toilet. — Equity will often make defective execu 
 
 Hon of a power good, but will not generally assist in cafe 
 
 of non- execution. 
 
 A person having a spe- 
 cial power of appoint- - 
 ment must execute it 
 bond fide for the end 
 designed. If he exe- 
 cutes it for any other 
 end, equity will set the 
 execution aside as a 
 fraud upon the power. 
 
 Powers of appointment are of two kinds, general and special. A general 
 power of appointment is equivalent to absolute property, and the person 
 having the power can appoint it to whom he likes. A special power of appoint- 
 ment is a power to appoint to special persons or classes of persons. The most 
 familiar example of such a power is the power given in a marriage settle- 
 ment to the husband and wife to appoint the property subject to the settlement 
 amongst the issue of the marriage. Such a power must be exercised conform- 
 ably with its real object — namely, the benefit of the issue or some of them; 
 and if exercised for a corrupt purpose with the intention, for example, of 
 benefiting the appointors themselves, or for purposes more extensive than the 
 power indicates, the execution will be set aside. 
 
 54. Edwards v. Slater. — A power in gross is not suspended 
 by a forfeiture of the life estate of the donee of the power, 
 or extinguished by an assignment of totums tat inn simm, or 
 other alteration of his life estate. 
 
 This is the leading case upon the suspension and extinguishment of powers 
 by the acts of the donee of the power. Powers to raise estates are either 
 simply collateral or not simply collateral. Powers not simply collateral are 
 of two sorts. First, appendant; secondly, in gross. Powers simply collateral 
 could not formerly be released or extinguished by the donee; but see now the 
 Conveyancing Act, 1881, sect. 52. An example of such a power is where a. 
 stranger with no estate in the land has a power limited to him to charge the 
 land. A power appendant or annexed to the land can be either extinguished 
 or suspended by the donee of the power before executing the power granting 
 away all or part of his estate. He is in such a case not allowed to derogate 
 from his prior grant. A power in grcss — for example, a power given to a 
 tenant for life to create an estate which is not to begin till after his own life 
 estate is determined — cannot, as was decided in the above case, be suspended, 
 or extinguished by any dealing with the life estate.
 
 APPENDIX B. 457 
 
 55. Bradley v. PeixotO. — A condition in general restraint of 
 
 alienation annexed to an absolute gift of personalty is re- 
 jected and the absolute gift remains discharged from the 
 condition. 
 
 The principle laid down in this case is hot confined to gifts of personalty, 
 but applies also to similar restraints upon the alienation of estates in fee or 
 tail. The condition against alienation is considered inconsistent with and re- 
 pugnant to such estates and is void. But a limited restriction — for example 
 not to sell except to a certain class of persons — is good. Litt. 223a, sec. 361. 
 
 56. Seymor's case. — Seymor's case contains a classification 
 
 of estates of inheritance which, says Lord Coke, are either 
 fee simple or fee tail ; an estate of fee simple is either an 
 estate of inheritance absolute and indeterminable, as 
 where lands are given to a man and his heirs, or a fee 
 simple determinable, which latter is either (1) expressly de- 
 rived out of an absolute estate in fee simple; or (2) de- 
 rived out of an estate tail. A fee simple determinable 
 derived out of a fee simple is either (a) by condition, as 
 upon mortgage, and that is called a fee simple condi- 
 tional; or (b) by limitation, as if A. enfeoff B. of the 
 manor of D. to have and to hold to him and his heirs so 
 long as C. has heirs of his body, and that is called a fee 
 simple limited and qualified. A fee simple determinable 
 which is derived out of an estate tail is created when 
 a tenant in tail conveys to A. and his heirs in such a 
 manner as to bar his own issue only, there A. has an 
 estate in fee simple so long as the tenant in tail has heirs 
 of his body; this is now called a base fee. 
 
 57. Taltarum's case. — This case recognised the validity of 
 
 a common recovery as a means of barring estates tail, and 
 so virtually repealed the Statute De Donis Condi tionali- 
 bus (13 Edw. I., c. 1) which had made entails perpetual. 
 
 An estate tail is now barred by an assurance by deed enrolled in the High 
 Court of Justice (formerly in the Court of Chancery) within six months after 
 execution (3 & 4 Will. IV., c. 74), and the learning of recoveries therefore is 
 now antiquated.
 
 458 APPENDIX B. 
 
 58. Attorney - General v. Sands. — Leading case on Es- 
 
 cheat mill Forfeiture. Bight to escheat is founded on 
 " the want of a tenant to perform service." 
 
 Bastardy is the most usual cause of the failure of heirs. Forfeitures for 
 treason and felony were abolished by 33 & :;4 Vict. c. 23. 
 
 59. Shelley's case. " Wherever a man by any gift or con- 
 
 veyance takes an estate of freehold, and in the same gift 
 or conveyance an estate is limited, either mediately or im- 
 mediately, to his heirs in fee or in tail, the word 'heirs 7 
 is a word of limitation, and not of purchase.''' (In plain 
 English, the word is not to be taken as giving the heirs 
 anything, but simply as marking out the quantity of 
 estate which the donee himself is to have.) 
 
 Though the two limitations must be in the same instrument, a will and cod- 
 icils are for this purpose considered as one instrument. Hays d. Foorde r. 
 Foorde, 2 W. Bl. 698. The rule applies equally to limitations of freehold and 
 copyhold estates, and to estates pur autre vie, Doe d. Jeff v. Robinson, 8 B. & 
 C. 29G. A very recent application of this rule may be found in the case of 
 Bowen v. Lewis, decided by the House of Lords in 1884 (54 L. J. Q. B. 54), 
 where Lord Bramwell said: — "The rule in Shelley's case has to be considered 
 — a rule which may have had some reason in it when it was invented, but 
 which, when applied, almost invaribly frustrates the intention of the testator, 
 which ought to be ascertained." 
 
 60. Tyrringham's case. — Common of pasture appendant is 
 
 a right annexed to the possession of land within a manor, 
 and entitles the commoner to feed his beasts on the wastes 
 and upon the lands of other persons within the same 
 manor. It is properly annexed to arable land, and is lim- 
 ited to such animals as are necessary for tillage. It is 
 of common right, and as all manorial tenures must have 
 been created prior to the Statute of Quia Emptores, it 
 can only be claimed by immemorial prescription, and not 
 by grant or by custom. Common appurtenant, on the 
 other hand, does not arise from any connexion of tenure, 
 and may be annexed to lands in different manors from 
 those in which it is claimed. It may be annexed to any 
 kind of land, and may be foi^ beasts not usually common- 
 able. It is against common right, and must be claimed 
 by grant or by prescription, which supposes a now forgot- 
 ten grant.
 
 APPENDIX B. 459 
 
 61. De la Warr v. Miles. — This capo, which was decided by 
 
 the Court of Appeal in 1881. deals with the application of 
 the Prescription Act to claims of rights of common. It 
 was held that the defendant and his predecessors in title 
 having been shown to have actually enjoyed, as of right, cer- 
 tain commonable benefits in respect of his particular tene- 
 ment for upwards of sixty years, had acquired such rights 
 indefeasibly, and the fact that they had claimed to enjoy these 
 benefits under the mistaken supposition that all the com- 
 moners were entitled to do so, did not prevent the acquisi- 
 tion of the right by prescription. 
 
 62. Sury v. Pigot. — Where a right of way (not being a way 
 
 of necessity) exists, and there arises a unity of seisin of 
 the land and of the way over the land in one and the same 
 person, the right of way is either extinguished or suspended 
 according to the duration of the respective estates in the 
 land and the way ; so that unity of seisin will suspend such 
 an easement, but not necessarily extinguish it, unless the es- 
 tates in the respective tenements are estates in fee simple. 
 Moreover, unity will not extinguish a watercourse or other 
 similar easement, for, in such case, the right does not arise 
 from consent or prescription, but ex jure naturce. 
 
 The chief ways in which an easement may be extinguished are by unity of 
 possession, by Act of Parliament, by release under seal, and by the abandon- 
 ment implied from non-user. 
 
 63. Bowles' case. \ Leadingcases as to amount of waste that 
 
 64. Garth, v. Cotton. ( can be committed with impunity. 
 
 A tenant for life cannot commit waste, either voluntarily or permissive. 
 But if his estate is '' without impeachment of waste," he has more liberty; but 
 still he may not deface the family mansion, fell ornamental timber, or, gener- 
 ally, commit what is called equitable waste. See Judicature Act. 1873, sec. 25, 
 sub-s. 3. In connection witb this subject, the increased powers given to tenant 
 for life by the Settled Land Act, 1882 (45 & 4G Vict. c. 38), may be men- 
 tioned. 
 
 65. Rouse's case. — Person who comes into estate by right, but 
 
 remains in after his right has expired, is tenant at sufferance 
 and doviimis pro tempore.
 
 460 APPENDIX P.. 
 
 66. Richardson u. Langridge. — Tenacy at will created by 
 agreement to let so long as both parties please, and rent 
 being reserved accruing de die in diem, and not referable 
 to a year, or any aliquot part of a year. 
 
 See p. 101. 
 
 67. Clun's case. — Leading case on apportionment of rent. 
 
 By the Apportionment Act, 1870 (33 & 34 Vict. c. 33), all rents and other 
 periodical payments in the nature of income are to be considered as accruing 
 from day to day, and to be apportionable in respect of time accordingly. See 
 recent case of Swansea v. Thomas, 10 Q. B. D. 48. 
 
 68. Morley v. Bird. — Notwithstanding leaning of court in 
 
 favour of tenancy in common, an interest given to several 
 without words "equally among," or anything that court can 
 lay hold of, is joint. 
 
 AQ T lr • C "h i Persons making purchase for purpose 
 
 •I of joint undertaking or partnership 
 
 70. Lake r. Craddock. / J , . . & . .. l 
 
 { are tenants in common in equity. 
 
 See p. 116. 
 
 71. Wake v. Conyers. — Court will not exercise jurisdiction in 
 
 settling boundaries unless soil itself in dispute, or other good 
 reason. 
 
 There ought to be " some superadded equity;" e.g., confusion through fraud, 
 or through the fault of a party whose duty it was to preserve the boundaries, 
 will justify interference. 
 
 72. Lie Neve v. Le Neve. — Unregistered settlement of lands 
 
 in register county preferred to subsequent registered one, 
 the person taking the lands under the latter settlement hav- 
 ing notice of the former. See now as to Yorkshire, 47 & 48 
 Vict. c. 54, s. 14, etc. 
 
 73. Agra Bank v. Barry. — Absense of title deeds will not 
 
 constitute constructive notice of prior interest, if their ab- 
 sence is satisfactorily accounted for. 
 
 74. Bassett v. Nosworthy. — Equity will give no assistance to 
 
 the legal title against a bona* fide purchaser for valuable 
 consideration who has actually paid the purchase-money 
 and executed the conveyance without notice of an adverse 
 title.
 
 APPENDIX B. 461 
 
 Notice is actual or constructive. Constructive notice is no more than evidence of 
 notice, the presumption of which is so violent that the court will not even allow 
 of its heing controverted. It is of two kinds : 
 
 (1.) Where actual notice has heen given, and the party is charged with cir- 
 cumstances which might have heen discovered on inquiry ; ami 
 
 (2.) "Where inquiry has heen purposely advoided to escape notice. See, how- 
 ever, the restriction on constructive notice introduced hy the third section of 
 the Conveyancing Act, 1882 (45 & 46 Vict. c. 39). The court will x>ostpone the 
 prior legal estate to a subsequent equitable estate ; (a) where the owner of 
 the legal estate has assisted in or connived at the fraud which has led to the 
 creation of a subsequent equitable estate, without notice Of the prior legal es- 
 tate ; of which assistance or connivance, the omission to use ordinary care in 
 inquiring after or keeping title deeds may be, and in some cases has been, held 
 to be sufficient evidence, where such conduct cannot otherwise be explained ; (b) 
 where the owner of the legal estate has constituted the mortgagor his agent, 
 with authority to raise money, and the estate thus created has by the fraud or 
 misconduct of the agent been represented as being the first estate. 
 
 75. Agar v. Fairfax. — Leading case on Partition, which is " the 
 
 remedy for the inconvenience of undivided ownership." 
 
 The old writ of partition was abolished by 3 & 4 Will. IV., c. 27 8. 36, and a 
 partition is now usually effected by proceedings in Chancery, ending with 
 mutual conveyances. 
 
 76. Mackreth v. Symons.— Vendor's lien for unpaid purchase- 
 
 money prevails against everybody except bond fide purchas- 
 ers without notice that the money remains unpaid. 
 
 The protection of the bond fide purchaser who has paid his money and taken 
 his conveyance is on the principle that where the equities are, equal the law shall 
 prevail. To the extent of the lien the purchaser becomes a trustee for the ven- 
 dor. The giving of a mere personal security for the purchase-money, e.g., a- 
 bond or bill of exchange, will not be sufficient of itself to discharge the equi- 
 table lien, yet where it appears that the security was substituted for the consid- 
 eration money the lien will be lost. 
 
 77. Fletcher v. Ashburner. — Money directed to be used for 
 
 buying land, and land directed to be turned into money, are 
 to be considered as 'that species of property into which they 
 are directed to be converted. 
 
 78. Ackroydf. Smithson. — Where the purposes of conversion 
 
 fail, the property goes in its original state. 
 
 Fl°tcher v. Ashburner is founded on the maxim that equity regards that as done 
 which ought to be done, so that where there is an intention to convert with regard 
 31 COMMON LAW.
 
 462 APPENDIX B. 
 
 to a particular purpose, and that purpose cannot be served, the court will not 
 infer an intention to convert the property for any other purpose not expressed. 
 Ackroyd v. Smithson was the first case in which young John Scott (afterwards 
 Lord Eldon) markedly distinguished himself, and, as Mr. Snell in his "Prin- 
 ciples of Equity " justly observes, "it would, perhaps, be impossible to find a 
 clearer exposition of the principles governing this class of cases, than in his 
 Celebrated argument." 
 
 79. Marsh v. Lee. — Third mortgagee, having advanced money 
 
 without notice of second mortgage, and having afterwards 
 brought in the first mortgage, allowed to tack and squeeze 
 out second mortgagee. 
 
 80. Brace v. Marlborough.— Judgment creditor bringing in 
 
 first mortgage not allowed to tack against second mortgagee, 
 for he did not advance his money on the immediate credit of 
 the mortgaged land. 
 
 The doctrine of tacking was abolished by section 7 of the Vendor and Pur- 
 chaser Act, 1874, and restored by the Land Transfer Act, 1875. The doctrine 
 of the consolidation of mortgages must not be confounded with tacking. That 
 doctrine is that when the same mortgagor has mortgaged different estates which 
 ultimately become vested in one mortgagee, he cannot redeem one without re- 
 deeming all. But this will not apply where the mortgagor has assigned the 
 equity of redemption before effecting the subsequent mortgages. See Jennings 
 v. Jordan, 6 App. Ca. G98 ; and, moreover, the application of the doctrine has 
 (in the absence of special agreement) been restrained to cases where none of 
 the mortgages sought to be consolidated has been made under the Conveyanc- 
 ing Act (41 & 45 Vict. c. 41, s. 17). 
 
 81. Russel v. Russel. — Mere deposit of title deeds, good equi- 
 
 table mortgage. 
 This is in spite of the 4th section of the Statute of Frauds. 
 
 82. Casborne v. Scarfe. — Equity of redemption an estate in 
 
 the land, which is considered only security for money lent. 
 
 83. Howard v. Harris. — No agreement in mortgage can make 
 
 it irredeemable, either after death of mortgagor or upon fail- 
 1 ure of issue male of his body. 
 
 84. Thornborough v. Baker. — Executor, not heir, of mortga- 
 
 gee, in fee entitled to money secured by mortgage. 
 
 85. Forbes v. Moffatt. — Leading case on meger and mortgages. 
 
 Locke King's Act (17 & 18 Vict. c. 113) provides that mortgage debts shall 
 be paid out of the mortgaged lands unless a contrary intention appears by the 
 will ; and see 30 & 31 Vict. c. 69.
 
 APPENDIX B. 488 
 
 86. Glenorchy v. Bosville. — Executory trusts will be moulded, 
 
 as far as ascertainable, according to settlor's intention. 
 
 Trusts are said to be executed when they appear to be finally declared by the 
 instrument creating them, and executory when some further act on the part of 
 the author or the trustees is necessary to give them effect. In the latter case 
 technical expressions will not be construed strictly. 
 
 87. Tyrrell's case. — There cannot be a use upon a use. 
 
 Thus the whole object of the Statute of Uses was defeated, and the Court of 
 Chancery regained its old jurisdiction. 
 
 88. Ellison v. Ellison. — Though assistance of court cannot be 
 
 had without consideration to constitute party cestui que trust, 
 yet, if legal conveyance actually made, equitable interest 
 will be enforced. 
 
 Equity will enforce a trust where it is executed, or where it is raised by will, 
 even though it is a mere voluntary trust. 
 
 89. Elliott v. Merryman. — Leading case as to obligation of 
 
 purchaser from trustees to see to application of purchase- 
 money. 
 
 See, however, 22 & 2:1 Vict. c. 35, s. 83; 23 & 24 Viet. e. 145, s. 29; 44 & 45 
 Vict. c. 41 s. 36; and 45 and 46 Vict. c. 38, s. 40. 
 
 90. Dyer v. Dyer. — Purchase by father in name of son, ad- 
 
 vancement to son, not resulting trust. 
 
 The presumption of advancement (which may be rebutted by parol evidence) 
 also arises in favour of a wife, a grandchild, a nephew, or an illegitimate child, 
 But it will not arise in favour of a mistress, even though she is the purchaser's 
 deceased wife's sister and he has gone through the form of marriage with her. 
 Where, however, a conveyance is taken in a stranger's name, the resulting 
 trust may be rebutted by evidence of the purchaser's intention that the stranger 
 should take for his own benefit. 
 
 91. Keech v. Sandford. — Trustees renewing lease for self, 
 
 without fraud, and lessor having refused renewal to cestui 
 que trust, is nevertheless trustee of lease for latter. 
 
 92. Fox v. Mackreth. — Trustee cannot generally purchase 
 
 trust estate from cestui que trust.
 
 404 APPENDIX B. 
 
 93. Robinson v. Pett. — Court never allows trustee anything 
 
 for bis trouble. 
 
 The point is, that a trustee shall not be allowed to make a good thing out of 
 his trust. By express agreement, however, he may receive remuneration, and 
 there are some exceptional cases [e.g., where he is prepared to give more than 
 any one else) where he may even buy from cestui que trust. See also 44 & 45 
 Vict. c. 41, ss, 31, 32, and seq.; and 45 & 46 Vict. c. 38, s. 43. 
 
 { Trustees not generally respon- 
 
 „ , „, , _, sible for acts or defaults of co- 
 
 94. Townley v. Sherborne. J ,. ,. ,. 
 
 _,_ _ . „. , trustee; distinction between 
 
 95. Bnce v. Stokes. 
 
 trustees and executors as to 
 
 I effect of joining in receipts. 
 
 See Westley v. Clarke, 1 Eden, 357; Joy v. Campbell, 1 Sch. & Lef. 341; Wil- 
 kins v. Hogg, 3 Giff. 116; and 44 & 45 Vict. c. 41. The 41st section of the Set- 
 tled Land Act, 1882 (45 & 46 Vict. c. 38), provides that "each person who is 
 for the time being trustee of a settlement is answerable for what he actually 
 receives only, notwithstanding his signing any receipt for conformity, and in 
 respect of his own acts, receipts, and defaults only." 
 
 96. Row v. Dawson. — Chose in action assignable in equity, 
 
 and no particular form of words necessary. 
 
 97. Ryall v. Rowles. — Assignment of debts without notice to 
 
 debtor invalid against assignees in bankruptcy. 
 
 See Brice v. Bannister, p. 225. 
 
 98. Dering v. Winchelsea. — Doctrine of contribution extends 
 
 to sureties bound by different instruments. 
 
 99. Rees v. Berrington. —Surety released by creditor giving 
 
 time to debtor. 
 
 See Wldtchcr v. Halt, p. 18. 
 
 f Equity looks with suspi- 
 
 100. Cnesterfield v. Janssen. i • i 
 
 UUCi3l,cluom ooiio^n. j clou on k ar g airjg ma d e 
 
 101. Aylesford v. Morris. .,. , , . 
 
 with expectant neirs. 
 
 See p. 174. 
 
 102. Fox v. Chester. — Sale of next presentation whilst incum- 
 
 bent dying, not void for simony, if no intention to present 
 particular clerk. 
 See p. 140.
 
 APPENDIX B. 
 
 4G5 
 
 103. Huguenin v. Baseley. — Voluntary settlement in favour 
 
 of person in confidential relation set aside as obtained by 
 undue influence. 
 
 See p. 373. 
 
 104. Peachy v. Somerset. — Copyhold tenant who has been 
 
 leasing wrongfully and cutting down trees not entitled to 
 relief from forfeiture. 
 
 105. Sloman v. Walter,, — Equity will relieve against penalty 
 
 merely intended to secure enjoyment of collateral object. 
 
 See Kemble v. Farrcn, p. 244, and 44 & 45 Vict..c. 41, s. 14. 
 
 106. Landsdowne v. Landsdowne. 
 
 107. Beauchamp v. Winn. 
 
 108. Stapilton v. Stapilton. 
 
 109. Gordon v. Gordon. 
 
 See Marriott v. Hampton, p. 209. 
 
 Equity gives relief for 
 mistake of law where 
 mistake is one of title 
 arising from ignor- 
 ance of elementary 
 principle of law ; but 
 generally only for 
 mistake of fact. 
 
 Agreement entered into for 
 compromise of doubtful 
 right, binding ; but there 
 must be no keeping back 
 material information. 
 
 110. Oxford's case. — Leading case as to principles on which 
 equity will interfere to restrain proceedings at law. 
 
 The importance of this case has been considerably diminished by the fusion 
 of law and equity introduced by the Judicature Acts.
 
 4&i APPENDIX C. 
 
 APPENDIX C. 
 
 PRINCIPAL LEGAL MAXIMS. 
 
 (1. ) Accessorinm non ducit, sed sequitur, suum principale. 
 
 ( The accessory does not lead, but follows, its principal 
 (2.) Acta exteriora indicant interiora secreta. 
 
 [Overt acts proclaim a man's intentions and motives.) 
 (3.) Actio personalis moritur cum persona. 
 
 (A personal right of action ceases at death.) 
 (4.) Actus Dei nemini facit injuriam. 
 
 (The act of God does injury to no man.) 
 (5) Benigne faciendse sunt interpretationes propter simplicitatem 
 laicorurn, ut res magis valeat quam pereat. 
 (Instrument ought to be construed leniently, with allowance 
 made for the ignorance of people who are not lawyers, so 
 that the transaction may be supported, and not rendered 
 nugatory. ) 
 (6.) Caveat emptor. 
 
 ( The buyer must look after himself. ) 
 (7.) Cessante ratione, cessat lex. 
 
 ( When a reason for laiv ceases to exist, so also does the law 
 itself.) 
 (8.) Contemporanea expositio est optima et fortissima in lege. 
 
 ( The best ivay of getting at the meaning of an instrument is to 
 ascertain when and under what circumstances it was made.) 
 (9. ) Cuilibet in sua arte perito credendum est. 
 
 (Every man is an expert in the particular branch of business 
 he is familiar with. )
 
 APPENDIX C. 407 
 
 (10.) Delegatus non potest delegare. 
 
 (A person having merely delegated authority cannot himself 
 delegate that autlwrity to another.) 
 (11.) De minimis non curat lex. 
 
 ( The law does not trouble itself about trifles. ) 
 (12.) Domus sua est cuique tutissimum refugium." 
 
 ( A mail's house is his safest retreat, ) 
 (13.) Ex nudo pacto non oritur actio. 
 
 (In order to ground an action, an agreement must have a 
 consideration.) 
 (14.) Expedit reipublicce ne quis sua re male utatur, 
 
 ( The good of the State requires a man not to injure his oivn 
 property. ) 
 (15.) Expressum facit cessare taciturn. 
 
 (When all the terms are expressed, nothing can be implied.) 
 (16.) Ex turpi causa non oritur actio. 
 
 (Immorality will not ground an action.) 
 (17.) Id certum est quod certum reddi potest. 
 
 What can be reduced to a certainty is already a certainty.) 
 (18.) Ignorantia facti excusat, ignorantia jtiris non excusat. 
 
 (A man may be pardoned for mistaking facts, bid not for 
 mistaking the law.) 
 (19.) In contractis tacite insunt quae sunt moris et consuetudinis. 
 (Persons are presumed to contract with reference to 'habits 
 and customs. ) 
 (20.) In jure non remota sed proxima causa spectatur. 
 
 (It is not the remote but the immediate cause that the law 
 looks at.) 
 (21.) Interest reipublicse ut sit finis litium. 
 
 • (It is the interest of the State that litigation should cease.) 
 
 (22.) Judicis est jus dicere, non dare. 
 
 (A judge should administer the law as he finds it, not make 
 it.) 
 (23.) Lex non cogit ad impossibilia. 
 
 ( The laio never urges to impossibilities. ) 
 (24.) Lex semper intendit quod convenit rationi. 
 
 ( The law must be taken to intend what is reasonable. ) 
 
 ( 25. ) Lex spectat naturae ordinem. 
 
 (The law takes into account the natural succession of things.)
 
 468 
 
 APPENDIX C. 
 
 (26. 
 
 (27. 
 
 (28. 
 
 (29. 
 
 (30. 
 
 (81 
 
 (32. 
 
 (33. 
 (34. 
 
 (35. 
 (36. 
 (37. 
 (38. 
 
 (39. 
 (40. 
 
 Modus et conventio vincunt legem. 
 
 (Persons may contract themselves out of their legal liabilities.) 
 
 Non dat qui non habet. 
 
 (A man cannot give what he has not got.) 
 
 Non omnium quae a majoribus constituta sunt ratio reddi 
 
 potest. 
 (A reason cannot be given for everything that our ancestors 
 
 were pleased to ordain. ) 
 Nullum simile est idem nisi quatour pedibus currit. 
 (Similarity is not analogy unless it runs on all fours.) 
 Omne majus continet in se minus. 
 (The greater includes the less.) 
 Omnia prsesumuntur contra spoliatorem. 
 (Every presumption is made against one who spoils.) 
 Omnia prsesumuntur rite et sollenniter esse acta. 
 (It is presumed that all the usual formalities have been com- 
 
 plied with. ) 
 Omnis ratihibitio retrotrahitur et mandato priori asquipafa- 
 
 tur. 
 (A ratification is taken back and made equivalent to a pre- 
 vious command.) 
 Optima est lex qua? minimum relinquit arbitrio judicis, opti- 
 
 mus judex qui minimum sibi. 
 ( The best system of law is that ivhich leaves the least to the 
 
 discretion of the judge; the best judge is he who leaves the 
 
 least to his own discretion.) 
 Optimus legis interpres est consuetudo. 
 (Custom is thebest interpreter of law.) 
 Potior est conditio possidentis. 
 ( There is a great advantage in being in possession. 
 Qui facit per alium, facit per se. 
 (He who does a thing by another does it himself.) 
 
 Qui hseret in litera haeret in cortice. 
 
 (He who harps on the mere letter of a written instrument does 
 not get at the pith of the matter.) 
 
 Qui non improbat, approbat. , 
 
 (Not blaming is equivalent to praising.) 
 Qui prior est tempore, potior est jure. 
 ( The laic favours the earlier in point of time. )
 
 APPENDIX C. 469 
 
 (41.) Qui sentit commoclum, sentire debet et onus. 
 
 (Benefit and burden ought to go hand in hand. ) 
 (42. ) Quicquid plantatur solo, solo cedit. 
 
 ( Whatever is planted in the ground becomes part of the ground.) 
 (43.) Quilibefc potest renunciare juri pro se introducto. 
 
 (A man may waive a right established for his own benefit.) 
 (44.) Quod ab initio non valet, in tractu teniporis non convalescit. 
 
 (Time will not cure ivhat is wrong from the beginning.) 
 (45.) Quod fireri non debut factum valet. 
 
 ( What ought never to have been done at all, if it has been 
 done, may be valid. ) 
 (4G.) Quod subintelligitur, non deest. 
 
 ( What is to be understood, is as good as if it were there.) 
 (47.) Quoties in verbis nulla est ambiguitas, ibi nulla expositio 
 contra verba fienda est. 
 
 (When the language of a written instrument is perfectly plain, 
 no construction ivill be made to contradict the language.) 
 (48.) Res inter alios acta alteri nocere non debet. 
 
 (A man ought not to be prejudiced by what has taken place 
 between others.) 
 (49.) Res judicata pro veritate accipitnr. 
 
 (The decision of a court of justice is assumed to be correct.) 
 
 (50.) Respondeat superior. 
 
 (A man must answer for his dependents.) 
 (51.) Salus populi suprema lex. 
 
 ( The welfare of the State is the highest laiv. ) 
 (52.) Sic utere tuo ut alienum non loedas. 
 
 (Make such a use of your own property as not to injure your 
 neighbour's. ) 
 (53. ) Simplex commendatio non obligat. 
 
 (A man is not obliged to cry stinking fish.) 
 (54. ) Solivitur secundum modum solventis. 
 
 ( Payment is to be made as the prayer pleases. ) 
 (55.) Spondes peritiam artis. 
 
 (If your position implies skill, you must use it.) 
 (56.) Ubi jus, ibi remedium. 
 
 (Where there is a right, there is a remedy.)
 
 470 APPENDIX C. 
 
 (57.) Verba chartarum fortius accipuntur contra proferentum. 
 
 ( The language of an instrument is to be taken strongly against 
 the person whose language it is.) 
 (58. ) Verba generalia restringuuntur ad habilitatem rei vel personam. 
 ( General tcords are to be tied doivn and interpreted according to 
 their context. ) 
 (59.) Vigilantibus non dormientibus jura subveniunt. 
 
 ( To get the law's help a man must not go to sleep over his own 
 interests. ) 
 (60.) Volenti non fit injuria. 
 
 ( The man who is the author of his oivn hurt has no right to 
 complain. )
 
 INDEX. 
 
 ABROAD, 
 
 contracts made or torts committed 384, ct acq. 
 
 ACCEPTANCE, 
 
 proposal not binding till , 9 
 
 must be unqualified . * ' ' 10, 11 
 
 within 17th sect, of Statute of Frauds 29 
 
 ACCIDENT, 
 
 alteration of written contract by 159 
 
 if inevitable, not actionable 250 
 
 when occurrence of, prima facie evidence of negligence . . ib. 
 
 ACCORD AND SATISFACTION . . 233 
 
 ACKNOWLEDGMENTS SAVING STATUTE OF LIMITATIONS 228, el seq. 
 
 ADVERTISEMENT, 
 
 contract by 9 
 
 railway time-tables 65, et seq. 
 
 AGENTS. Sec Principal and Agent. 
 
 AGRICULTURAL HOLDINGS ACT, 1883, 
 
 provisions of, as to fixtures 97 
 
 provisions of, as to notice to quit 101 
 
 AIR, 
 
 action for interference with 254 
 
 ALTERATION OF WRITTEN CONTRACT, 
 
 what, fatal to validity 157, eiseq. 
 
 AMBIGUITY, 
 
 latent and patent 36 
 
 ANCIENT DOCUMENTS 336 
 
 ANCIENT LIGHTS, 
 
 Prescription Act (2 & 3 Will. IV c. 71) 251 
 
 open spaces '/'■ 
 
 different application of premises *&• 
 
 enlargement *?• 
 
 abandonment ">• 
 
 (471)
 
 472 INDEX. 
 
 PAGE 
 
 ANIMALS, 
 
 ferae naturge cannot be distrained 94 
 
 dogs ib. 
 
 liability "of owner for trespass of 256 
 
 ' ' proper vice " 51 
 
 APPROPRIATION, 
 
 of chattels sold "... 210 
 
 of lost goods may amount to larceny 330 
 
 of payments 180 
 
 AQUARIUM. 
 
 mustn't go to, on Sunday 142 
 
 ARBITRATION, 
 
 contract to refer to 128, et seq 
 
 ASSAULT, 
 
 master responsible for, if committed by servant within gen- 
 eral scope of authority 293, et seq. 
 
 in defence of, or to regain, freehold premises 320 
 
 ASSIGNMENT, 
 
 of insurance policy 181 
 
 of fchose in action 225, et seq. 
 
 of lease • 98 
 
 of bill of lading 204 
 
 of salaries 121 
 
 ATHEISM 136, et seq. 
 
 ATTORNMENT CLAUSE IN MORTGAGE, 109 
 
 AUCTIONEER 
 
 cannot sue od contract he has signed as agent 17 
 
 bidding revocable before hammer falls 9 
 
 lots at auction knocked down to same person 27 
 
 AVERAGE, 
 
 general 195 
 
 particular 196 
 
 BAILMENTS 41, et seq. 
 
 BANKER 
 
 bound to honour customer's cheque 248 
 
 BANKRUPT, 
 
 contract by, on new consideration, to pay old debt .... 8 
 BARRISTER, 
 
 when, may sue for fee . . . 8 
 
 speeches of, privileged 338 
 
 BETTING 144, et seq. 
 
 BILLS OF EXCHANGE. 
 
 consideration of 2, 3 
 
 taking overdue 156 
 
 notice of dishonour 154 
 
 alteration of 159
 
 INDEX. • 473 
 
 PAGE 
 
 BILLS OF LADING 204 
 
 BILLS OF SALE, 
 
 cannot be given for sum under £30 222 
 
 must be attested and registered ib. 
 
 consideration must be truly set forth ib. 
 
 must be in accordance with prescribed form ib. 
 
 must have schedule containing inventory attached .... ib. 
 
 BLASPHEMY * 137 
 
 BOARD AND LODGING, 
 
 not an " interest in land " 24 
 
 BORROWING 43 
 
 BOUGHT AND SOLD NOTES 18 
 
 BREACH OF PROMISE TO MARRY, 
 
 promise need not be in writing 207 
 
 corroboration of plaintiff 's evidence necessary 208 
 
 defences ib. 
 
 damages ib. 
 
 married man may be sued for ib. 
 
 infant not liable for 233 
 
 BRIBERY 121 
 
 BROKER, 
 
 may bind parties within Statute of Frauds 18 
 
 may be liable as principal 39 
 
 person buying from, not allowed to set-off against principal 81 
 
 BUGS, 
 
 good reason for retiring from contract to take furnished house 114 
 
 CAMPBELL'S (LORD) ACT 361 
 
 CARRIERS, 
 
 common, are insurers 51, ct seq. 
 
 Land Carriers Act (11 Geo. IV. and 1 Will. IV. c. 68) . . . 56, et seq. 
 Railway and Canal Traffic Act (17 & 18 Vict. c. 31) . . . .53, et seq. 
 
 of passengers, liability of. See also Railway Company . 253 
 
 CHAMPERTY 121 
 
 CHARACTER, 
 
 of servant may be privileged communication 338 
 
 evidence of, though hearsay 366 
 
 impeaching, of girl in seduction case 311 
 
 CHEQUE. 
 
 refusal of banker to honour 255 
 
 alteration of 157 
 
 CHILDREN, 
 
 parent's liability to support 8 
 
 contributory negligence of 273 
 
 contracts of infants ! 171
 
 474 INDEX. 
 
 PAGK 
 
 CHOSE IN ACTION, 
 
 assignment of 225, et seq. 
 
 CHRISTIANITY, 
 
 part of the Law of England 137, ct scq. 
 
 immorality 119 
 
 Sunday contracts 141, et seq. 
 
 cremation ' 140 
 
 Jews in Parliament 139 
 
 CLAIM OF RIGHT ." 350 
 
 CLERGYMEN. See Atheism and Simony. 
 
 CLERK. See Master and Servant. 
 
 CLOAK-ROOM, 
 
 liability of railway company for articles deposited at . . . 59 
 
 CLUBS, 
 
 liability of members on contracts 71 
 
 COHABITATION, 
 
 past, no consideration 7 
 
 future, illegal consideration 122 
 
 liability of man for contracts kept of women 69 
 
 COMMODATUM 43 
 
 COMMON EMPLOYMENT, 
 
 doctrine of 282 
 
 Employers Liability Act, 1880 283 
 
 volunteers 285 
 
 CONCEALMENT, 
 
 of defects in contracts of sale . 320 
 
 from insurers 187 
 
 CONDITIONS PRECEDENT 180 
 
 CONSIDERATION, 
 
 when necessary, and what is sufficient 1 
 
 money recoverable for failure of 4 
 
 moral 7, et scq. 
 
 past 4, et scq. 
 
 illegal .*.. . 123 
 
 continuing 6 
 
 necessary to bond in restraint of trade 131 
 
 of guaranties 16 
 
 of bills and notes 2,3 
 
 of bills of sale 222 
 
 CONSTRUCTION OF WRITTEN CONTRACTS 161, 237, et seq. 
 
 CONTRACTOR, 
 
 employer of, not generally responsible for negligence of . . 290, et seq. 
 
 CONTRIBUTION, 
 
 * between co-sureties 22 
 
 not between wrong-doers 358
 
 INDEX. 475 
 
 PAGE 
 
 CONTRIBUTORY NEGLIGENCE, 
 
 founded on volenti nonfit injuria 269 
 
 when plaintiff may recover in spite of //,. 
 
 doctrine of identification 271 
 
 of children 273 
 
 of parents 274 
 
 CONVERSION, 
 
 what amounts to " :;:;:; 
 
 innocence of defendant no excuse :;:;:; 
 
 CONVEYANCING LEADING CASES. See Appendix B. 
 
 COPYRIGHT '' 317 
 
 CORPORATION, 
 
 must generally contract by seal 176, et seq. 
 
 exceptions to rule 
 
 Public Health Act, 1875 ! 
 
 not a "person " 
 
 , contracts ultra vires 118 
 
 liable for malicious prosecution 
 
 COVENANTS, 
 
 running with land 110 et scq. 
 
 waiver of breach of 96 ci seq. 
 
 for quiet enjoyment 115 
 
 to repair ib. 
 
 CREDIT, 
 
 effect of sale of goods on 312 
 
 CREDITORS, GIFTS DEFRAUDING 220 
 
 CREMATION 140 
 
 CROPS, 
 
 contracts for sale of, when within 4th section of Statute of 
 
 Frauds 23 
 
 distraining f)3 
 
 CUMULATIVE PENALTIES 244 
 
 CUSTOM, 
 
 evidence of, to explain or add incidents to written contracts 37, et seq. 
 conditions of valid 39, et sri. 
 
 DAMAGES, 
 
 measure of, in contract 226, 239, et seq. 
 
 measure of, in tort 360, et seq. 
 
 DAMNUM SINE INJURIA 248 
 
 DANGEROUS SUBSTANCES, 
 
 carriers need not receive 51 
 
 brought on land, responsibility for * . . 256, et seq.
 
 470 INDEX. 
 
 DEATH, 
 
 of principal revokes agent's authority 67 
 
 presumption of 397 
 
 DEBT, 
 
 assignment of 225, et seq. 
 
 " DEBT, DEFAULT, or MISCARRIAGE " 12, et seq. 
 
 DECEASED PERSONS, 
 
 declarations of, when evidence 370, et seq. 
 
 DECEIT, 
 
 action for 312, et seq. 
 
 DEDICATION OF WAY TO PUBLIC 380 
 
 DEED, 
 
 consideration not necessary 1 
 
 illegality vitiates . 120, et seq. 
 
 defrauding creditors 220, et seq. 
 
 estoppel by ' 402 
 
 DEFAMATION, 
 
 slander and libel 335, et seq. 
 
 privileged communications 338, et seq. 
 
 publication to third party 336. 
 
 Act of 1881 as to libels in newspapers 337 
 
 libellous contract illegal 127 
 
 'del credere agent, 
 
 his undertaking not within Statute of Frauds 15 
 
 DEPOSITU3I 45 
 
 DEVIATION, 
 
 in building contracts 224 
 
 of ship 192 
 
 of servant in respondeat superior case 295 
 
 DISHONOUR, NOTICE OF, 
 
 when excused 156, et seq. 
 
 DISMISSAL, WRONGFUL, 
 
 action for 203, et seq. 
 
 DISTRESS, 
 
 things privileged 92, et seq. 
 
 trespass ctb initio 322, it seq. 
 
 DIVERTING STREAM 250 
 
 DOGS, 
 
 may be distrained 88 
 
 bites of, responsibility of owners for 256 
 
 alleged right to keep ferocious dog 257 
 
 DONATIONES, 
 
 inter riros 373 
 
 mortis* eausd 376
 
 INDEX. 477 
 
 PAGE 
 
 DORMANT PARTNERS 198 
 
 DOUBLE VALUE, 
 
 action for 96 
 
 DRUNKARDS, CONTRACTS OF 175 
 
 DURESS, CONTRACT OBTAINED BY 175 
 
 EARNEST 30 
 
 EMPLOYERS LIABILITY ACT, 1880 283 
 
 ENTRIES, 
 
 by persons since deceased, when evidence 370, et seq. 
 
 EQUITY LEADING CASES. • See Appendix B. 
 
 ESTOPPEL, 
 
 by record 400, et acq. 
 
 by deed 402 
 
 by conduct 402, etseq. 
 
 by negligence 404 
 
 EVIDENCE, 
 
 hearsay 364, et seq. 
 
 declarations by persons since deceased 370, el seq. 
 
 presumptions of death 397, et seq. 
 
 oral, to explain or vary written contracts 34, etseq. 
 
 of custom 37, el seq. 
 
 separate documents containing contract cannot be connected 
 
 by oral evidence 32, #1 seq. 
 
 of plaintiff in breach of promise case must be corroborated . 208 
 
 EXECUTED CONSIDERATION, 
 
 when it will support a promise 4, et seq. 
 
 EXTRAS, 
 
 in building contracts 224 
 
 FACTORS' ACTS (6 & 7 Geo. IV. c. 94, 5 & 6 Vict. c. 39 and 40 
 
 & 41 Vict, c. 39) 87, 89 
 
 FALSE IMPRISONMENT, 
 
 action for 352 
 
 FALSE REPRESENTATION. See Fraud. 
 
 FELONY, 
 
 contract to compound, illegal 121, etseq. 
 
 where tort is also, civil remedy suspended 341, et seq. 
 
 i^ENCINC, 
 
 duty of 267 
 
 FINDER, 
 
 right against all except true owner * . 330 
 
 may be guilty of larceny 330 
 
 32 COMMON LAW.
 
 478 INDEX. 
 
 PAGE 
 
 FIRE, 
 
 negligent keeping of 300, et. seq. 
 
 FIRE INSURANCE 184, et seq. 
 
 FIXTURES, 
 
 tenant's right to remove '. . . . 97, et seq. 
 
 cannot be distrained 93 
 
 FORBEARANCE TO SUE 
 
 su ill cient consideration to support promise 2 
 
 FORCIBLE ENTRY 325 
 
 FOREIGN CONTRACT 384 et seq. 
 
 FOREIGN LAW, 
 
 how proved 387 
 
 FORFEITURE, WAIVER OF 103, et seq. 
 
 FORGERY, 
 
 cannot be ratified 71 
 
 FORMATION OF CONTRACT 10, et seq. 
 
 FRAUD, 
 
 may be presumed from inadequacy of consideration ... 4 
 
 liability of principal for fraud of agent 77 
 
 fraudulent profits by agents ib. 
 
 gifts defrauding creditors 220 
 
 action for deceit 312 
 
 responsibility for reckless assertions 314 
 
 in company's prospectus ib. 
 
 may sometimes be committed with impunity ib. 
 
 rescinding contract on ground of ib. 
 
 fraudulent preference 221 
 
 FRAUDS, STATUTES OF, 29 Car. II., c. 3, 
 
 'debt, default, or miscarriage" 12, ct seq. 
 
 " memorandum or note in writing" 16, et seq. 
 
 interests in or concerning lands 22, et seq. 
 
 agreement not to be performed within year 24, et seq. 
 
 agreement upon consideration of marriage 208. et seq. 
 
 " signed by the party to be charged " 17 
 
 <; goods, wares, and merchandises " 27 
 
 goods not yet in existence 30 
 
 several articles sold at same time 26 
 
 variation of written contract by parol 34, 40 
 
 earnest and part payment 30 
 
 • licet of part performance 33 
 
 acceptance and receipt 27, et seq. 
 
 leases not in writing 93, et seq. 
 
 representations as to another's solvency 312, et seq.
 
 INDEX 479 
 
 GAMING CONTRACTS, 
 
 generally enforceable at common law 144 
 
 Act of 1845 (8 and 9 Vict. c. 109) 145 
 
 recovering deposit ib. 
 
 null and void, but not altogether illegal ib. 
 
 GIFTS, 
 
 donatio inter vivos 373, el seq. 
 
 " mortis causd 376, et seq. 
 
 defrauding creditors 220 
 
 GOODS, SALE OF. See Frauds, Statutk of. 
 
 GOODWILL, SALE OF 132 
 
 GROWING CROPS, 
 
 sale of 23 
 
 damage to, by game 257 
 
 GUARANTIES, ■ 
 
 guaranty must be in writing 12, el seq. 
 
 consideration need not appear in document 16 
 
 promise to debtor not withing statute 15 
 
 del credere agents ib. 
 
 guaranty must be accepted ib. 
 
 alteration of terms between creditor and debtor 19 
 
 misrepresentation to, or concealment from, surety .... 20 
 
 giving time to debtor ib. 
 
 debt released or satisfied ib. 
 
 society's interest prejudiced 21 
 
 continuing guaranties ib. 
 
 guaranties to or for a firm ib. 
 
 death of surety 22 
 
 transfer of securities to surety ib. 
 
 calling on co-sureties for contribution ib. 
 
 HEARSAY, 
 
 not generally admissible in evidence .* . . 364 
 
 exceptions to rule 364, et seq. 
 
 HEIRS, BARGAINS WITH EXPECTANT 165 
 
 HIGHWAY, 
 
 what is 379 
 
 dedication of ' ' 380 
 
 ownership of ib. 
 
 repair of 381 
 
 extinguishment of ib. 
 
 surveyor of 279 
 
 dangerous pit near 275 
 
 HOLDING OVER, 
 
 remedy against tenant for 103 
 
 HORSE, 
 
 infant may be liable for hire of . 172 
 
 power of servant to bind master by warranty of 70 
 
 what meant by warranty of soundness 162 
 
 liability of owner for trespass of 243 
 
 sale of, in market overt 153
 
 480 INDEX. 
 
 PAGE 
 
 HOUSE, 
 
 implied warranty of fitness on letting furnished 114 
 
 HUNDRED, 
 
 liability of, for riots 281 
 
 HUSBAND AND WIFE, 
 
 wife as husband's agent 67, 68 
 
 necessaries for wife 68, 69 
 
 Act of 1882 68, 391 
 
 restraint of marriage 127, ct seq. 
 
 breach of promise of marriage 207 
 
 common law regards, as one person 391 
 
 separate property ib. 
 
 criminal remedies and liability of married woman 392 
 
 antenuptial debts and liabilities ib. 
 
 summary jurisdiction in disputes between ib. 
 
 contracts relating to separation 136 
 
 marriage brokerage contracts ib. 
 
 INDENTIFICATION, 
 
 doctrine of 271 
 
 IGNORANCE, 
 
 money paid under mistake of facts can be recovered \ . . . . 209 
 
 but not money paid under mistake of law 211 
 
 ILLEGALITY, 
 
 contracts against public policy 120 
 
 statutory and common law 123 
 
 ultra vires 125 
 
 immoral contracts 126, 127 
 
 contracts impeding administration of justice .... 128, ct seq. 
 
 restraint of trade 131, et seq. 
 
 " • " marriage 133, et seq. 
 
 IMMORALITY 126 
 
 IMPLIED CONTRACTS 11 
 
 IMPLIED WARRANTIES, 
 
 on sale of goods 166, et seq. 
 
 on letting furnished house 114 
 
 in marine insurance 178 
 
 IMPOSSIBLE CONTRACTS 147, ct seq. 
 
 INDEMNITY 5, 6 
 
 INFANTS, 
 
 parents' liability to support 8 
 
 contracts of 171, ctscq. 
 
 bargains with expectant heirs 174 
 
 INJURIA SIXE DA3INO 247, ct seq.
 
 INDEX. 481 
 
 PAOE 
 
 INNS AND INNKEEPERS 47, et seq. 
 
 INSANE PERSONS, 
 
 contracts of 174 
 
 INSURANCE, 
 
 life 180, et seq. 
 
 fire 184, et seq. 
 
 marine 187, et seq. 
 
 INTOXICATION 174 
 
 INVITATION TO ALIGHT 260 
 
 JEWS, 
 
 factious difficulties placed in the way of, becoming Members 
 
 of Parliament 139 
 
 JOINT CONTRACTORS, 
 
 acknowledgments by 226 
 
 JOINT-TENANCY, 
 
 rights of survivorship ■ 116 
 
 leases by joint-tenants . 117 
 
 how dissolved ... 118 
 
 JOINT TORTFEASORS 358 
 
 JUDGE, 
 
 province of, in ''necessaries" case 172 
 
 " " " negligence " 271 
 
 is to construe documents 237 
 
 what he ought to do when tort is also a felony 342 
 
 JUDGMENT, 
 
 effect of former as estopped * 400 
 
 JURISDICTION, 
 
 agreement to oust, of courts void 128 
 
 of magistrates ousted by claim of right 350 
 
 JUSTERTII 330 
 
 JUSTICES OF THE PEACE, 
 
 actions against, conditions of bringing 348 
 
 entitled to notice of action U>. 
 
 claim of right ousts jurisdiction of U>. 
 
 KEY 93 
 
 LADING, BILLS OF 205 
 
 LAND, 
 
 interest in, contract for ' 23 
 
 negligent uses of 256 
 
 support of, action for disturbance of 304 
 
 no private ownership of, by English law 121 
 
 covenant running with 1 10, et seq.
 
 482 INDEX. 
 
 PAGH 
 
 LAND CARRIERS ACT (11 Geo. IV. & 1 Will. IV. c. 6ft) ... 54, et seq. 
 
 LANDLORD AND TENANT. 
 
 tenant estopped from disputing landlord's title 402 
 
 who liable for nuisance on demised premises 298 
 
 waiver of forfeiture 96, et seq. 
 
 implied warranty of fitness on letting furnished house . . 114 
 
 tenancy at will converted into yearly tenancy 94 
 
 notice to quit 95 
 
 things privileged from distress 86, et seq. 
 
 removable fixtures 90, et seq. 
 
 covenants running with land 110, et seq. 
 
 licences , . . 119, et seq. 
 
 LATENESS OF TRAINS 63, et seq. 
 
 LAW, 
 
 foreign, how proved 352 
 
 LARCENY, 
 
 finder may be guilty of 330 
 
 tort amounting to felony 341 
 
 recovering stolen goods 45, 160 
 
 LEASE. 
 
 for more than three years not in writing . : 93, et seq. 
 
 LENDER 43 
 
 LETTER, 
 
 contract by 9 
 
 publication of libel in 336 
 
 LEX LOCI CONTRACTUS AND LEX LOCI FORI 384 
 
 LIBEL. See Defamation. 
 
 LICENCE 
 
 revocability of IIS 
 
 licencee suing third party ib. 
 
 licencee suing for personal injuries 27? 
 
 LIEN, 
 
 commodatory has no, for antecedent debt 44 
 
 innkeepers' 49 
 
 general and particular 143 
 
 solicitor's ib. 
 
 LIFE INSURANCE 180 
 
 LIGHTS, ANCIENT 251, et seq. 
 
 LIMITATIONS, STATUTES OF 228, et seq. 
 
 LIQUIDATED DAMAGES 241, et seq.
 
 INDEX. 483 
 
 • PAGE 
 
 LIS MOT A, 
 
 doctrine of :;.">:; 
 
 LLOYDS 39 
 
 LOAN 43 
 
 LODGER, 
 
 contract to let furnished lodgings within the Statute of 
 
 Frauds 24 
 
 but not contract for board and lodging merely ■. . . . . ib. 
 
 Lodgers Goods Protection Act (34 & 35 Vict. c. 79) ... 88 
 
 LORD CAMPBELL'S ACT 361 
 
 LORD'S DAY, 
 
 Act of Charles II, (29 Car. II. c. 7) 141 
 
 persons to whom Act applies ib. 
 
 ordinary calling ib. 
 
 contract must be complete on Sunday 142 
 
 exception in favour of provisions ib. 
 
 Sunday amusement and, recreation ib. 
 
 LOTTERIES, 
 
 declared public nuisances by 10 & 11 Will. III., c. 17 . . 147 
 
 Art Union Lotteries allowed ib. 
 
 LUGGAGE, 
 
 personal, what is 58 
 
 under passenger's own control ib. 
 
 porter taking charge of 59 
 
 cloak rooms ib. 
 
 loss off line 60 
 
 LUNATICS, 
 
 contracts of 173 
 
 MAGISTRATES. See Justices of the Peace. 
 
 MAINTENANCE 121 
 
 MALICE. See Privileged Communication and Malicious 
 Prosecution. 
 
 MALICIOUS PROSECUTION 352, el seq. 
 
 MANDATUM 42 
 
 MAN-TRAPS, 
 
 responsibility of persons setting 275 
 
 MARINE INSURANCE, 
 
 when concealment or misrepresentation vitiates policy of . . 187 
 
 MARKET OVERT, 
 
 sale in 152 
 
 effect of prosecuting thief to conviction ib. 
 
 horses 153
 
 484 INDEX. 
 
 PAGE 
 
 MARRIAGE, 
 
 contract in restraint of 133, etseq. 
 
 " to bring about 136 
 
 breach of promise of . . .* 207, 208 
 
 contract relating to separation 136 
 
 MARRIED WOMEN. See Husband and Wife. 
 
 MASTER AND SERVANT, 
 
 when writing necessary to contract 25 
 
 when servant binds master by giving warranty 70 
 
 what justifies summary discharge of servant 214,e< seq. 
 
 respondeat superior 293 
 
 doctrine of common employment 282 
 
 Employers Liability Act, 1880 283 
 
 interference with relation of master and servant 359 
 
 seduction 310 
 
 fires caused by servants 303 
 
 MASTER OF SHIP, 
 
 authority of, to bind owner 71 
 
 MAXIMS OF THE LAW. See Appendix C, 
 
 MEMORANDUM IN WRITING, 
 
 what sufficient, to satisfy Statute of Frauds 17 
 
 MERCANTILE CUSTOM, 
 
 oral evidence of, to explain document 37,et seq. 
 
 MINES 305 
 
 MISDEMEANOUR, COMPOUNDING 121, etseq. 
 
 MISREPRESENTATION. See Fkaud. 
 
 MISTAKE, 
 
 money paid under mistake of fact may be recovered, but not 
 
 money paid under mistake of law 209, et seq. 
 
 MORAL OBLIGATION, 
 
 will not support promise 7 
 
 MORTGAGES, 
 
 mortgagor's tenants 106. et seq. 
 
 Act of 1881 109 
 
 provisions of Judicature Act as to ib. 
 
 MUTUALITY 9,et seq. 
 
 NECESSARIES, 
 
 for wife 68, 69 
 
 " infant 171, etseq. 
 
 ' ship 71 
 
 NEGLIGENCE, 
 
 of railway companies 265 
 
 duties of judge and jury in action for • 266 
 
 contributory 271, et seq. 
 
 in carrying out building operations 305
 
 INDEX. 485 
 
 PAGE 
 
 NEGOTIABLE INSTUMENTS, 
 
 nemo rf«t quod rum habei 151 
 
 various kinds of ib. 
 
 restricting negotiability 152 
 
 NEWSPAPER, 
 
 libel in 337 
 
 NOTICE, 
 
 to quit 101 
 
 of dishonour 154, etseq. 
 
 of action 350 
 
 NOVATION . 228 
 
 NUISANCE, 
 
 action for public ■ 306 
 
 obstructing ancient lights 251 
 
 removing support 304 
 
 ruinous premises 298 
 
 sparks from engines 300 
 
 OATHS 139 
 
 OFFER. See Proposal. 
 
 ORAL EVIDENCE, 
 
 effect of, on written contract 34, et scq. 
 
 PAROL EVIDENCE. See Oral Evidence. 
 
 PARENT, 
 
 not liable for necessaries supplied to infant child 8 
 
 may bring action under Lord Campbell's Act 362 
 
 PARSON. See Simony. 
 
 PART-PERFORMANCE 33 
 
 PARTNERSHIP, 
 
 sharing in profits not conclusive evidence of 198 
 
 Bovill's Act (28 & 29 Vict. c. 86) 199 
 
 duties of retiring partners 200 
 
 PASSENGERS, CARRIERS OF 269 
 
 PASSENGERS' LUGGAGE. See Luggage. 
 
 PAST CONSIDERATION, 
 
 when, will support promise 5, et seq. 
 
 PAWNBROKERS, 
 
 pawning at common law 44 
 
 Pawnbrokers Act, 1*72 (35&36 Vict. c. 93) ib. 
 
 owner may recover thing stolen and pawned 45 
 
 implied warranty on sale 165
 
 48G INDEX. 
 
 PAGE 
 
 PAYMENT, 
 
 writing unnecessary when part-payment 30 
 
 revival of old debt by part-payment 237 
 
 PEDIGREE, 
 
 hearsay, when evidence to prove 366 
 
 PENALTIES AND LIQUIDATED DAMAGES 244, et seq. 
 
 PERFORMANCE, 
 
 within Statute of Frauds 32 
 
 suing before day of 213, 214 
 
 PILOT, 
 
 not generally entitled to salvage 12 
 
 ship compulsorily under management of 271 
 
 PLEDGE. See Pawnbrokers. 
 
 POLICY, PUBLIC 121, etseq., 341 
 
 POSSESSION, 
 
 advantage of, against wrongdoer 330 
 
 POST, 
 
 contract made through 9 
 
 PREMIUM, RETURN OF 190 
 
 PRESCRIPTION ACT 251, etseq. 
 
 PRESUMPTION, 
 
 that wife is husband's agent 67, 68 
 
 of death 397, et seq. 
 
 PRINCIPAL AND AGENT, 
 
 wife as husband's agent 69, etseq. 
 
 general and special agents 75 
 
 who may be agent to sign contract within Statute of Frauds 17 
 
 suing undisclosed principals 74, et seq. 
 
 fraud of agent is fraud of principal 78 
 
 surreptitious profit by agent il>. 
 
 set-off against factor's principal 79, et seq. 
 
 partnership a branch of law of agency '200 
 
 Factors Acts 82 
 
 agent exceeding authority liable in contract 83, et seq. 
 
 extent of agent's authority 69, etseq. 
 
 PRINCIPAL AND SURETY. See Guaranties. 
 
 PRIVILEDGED COMMUNICATION. 
 
 what is 338 
 
 presumption of, rebutted by proof of express malice . . . 339 
 
 must not be made unnecessarily by telegram or postcard . 340 
 
 PRIVITY 345, et seq.
 
 INDEX. 487 
 
 PAGE 
 
 PROBABLE CAUSE, 
 
 want of, iu action for malicious prosecution, 354 
 
 PRODUCTION, 
 
 necessary to valid tender 236 
 
 PROPER VICE 51 
 
 PROPERTY, 
 
 when, passes on sale of goods 210 
 
 PROPOSAL, 
 
 may be retracted before acceptance 8, 9 
 
 PROSPECTUS, 
 
 directors of company liable for misrepresentations in . . . 315 
 
 PUBLIC DOCUMENTS 365 
 
 PUBLIC HEALTH ACT, 1875, 
 
 when contracts within must be under seal 177 
 
 highways under 380 
 
 PUBLIC POLICY, 
 
 contract void for being against 121 
 
 PUBLICATION OF LIBEL. See Defamation. 
 
 QUALITY, 
 
 where implied warranty of, on sale of goods 166 
 
 QUANTUM MERUIT, 
 
 when plaintiff can sue on . 223 
 
 RAILWAY COMPANY, 
 
 lateness of trains 63, ct scq. 
 
 proper vice, bad packing, and dangerous goods 50, 51 
 
 special contracts with carriers 51, etseq. 
 
 Land Cairiers Act 54, et aeq. 
 
 passengers' luggage 57, et seq. 
 
 cloak rooms 59 
 
 loss of luggage off company's line 60 
 
 RATIFICATION, 
 
 accepting unauthorized contract of agent 71 
 
 Infants Relief Act, 1874 173 
 
 ratification of tort 359 
 
 RECEIPT, 
 
 difficulty of unstamped, how surmounted 31 
 
 demand of, may vitiate tender 2?>G 
 
 of goods within Statute of Frauds 27, el acq.
 
 488 INDEX. 
 
 PAGE 
 
 RECOVERY OF MONEY, 
 
 on ground of failure of consideration 4 
 
 " mistake 209, etseq. 
 
 " illegality 125 
 
 RELIGION. See Christianity, Simony, and Sunday. 
 
 REPAIR OF HIGHWAY 381 
 
 RES GESTsE, 
 
 declaration admissible as part of 367 
 
 RESIGNATION BONDS 140 
 
 RESPONDEAT SUPERIOR 293, 331 
 
 RESTRAINT OF MARRIAGE 133, et seq. 
 
 RESTRAINT OF TRADE 131, et seq. 
 
 RETURN O F PREMIUM 190, et seq. 
 
 REVERSION, 
 
 covenants running with 110 
 
 REVOCATION OF OFFER 9 
 
 RIOTERS 281 
 
 RIPARIAN OWNERSHIP, 
 
 rights of 235, etseq. 
 
 RUINOUS PREMISES 298 
 
 SABBATH. See Lord's Day. 
 
 SALE, 
 
 of goods. See Warranty and Statute of Frauds. 
 
 of officers , 121 
 
 ofgoodwill . 132 
 
 SALVAGE, 
 
 jurisdiction in matters II 
 
 salvors only entitled to moiety ib. 
 
 pilots and passengers ib. 
 
 misconduct of salvors ib. 
 
 SAMPLE, 
 
 implied warranty on sale by 167 
 
 SATISFACTION, 
 
 lesser sum cannot be pleaded in . of greater 23$ 
 
 SCIENTER. See Dogs.
 
 INDEX. 489 
 
 PAGE 
 
 SEAWORTHINESS 193 
 
 SECURITIES, 
 
 surety paying debt entitled to creditor's 22 
 
 SEDUCTION, 
 
 absurd fiction on which action for, is based 310 
 
 proof of service ib. 
 
 damages in action for 311 
 
 SERVANT. See Master and Servant. 
 
 SET-OFF AGAINST FACTOR'S PRINCIPAL 84, el seq. 
 
 SHERIFF , 
 
 every Englishman's house is his castle 326, et seq. 
 
 SIC UTEBE TUO 256 
 
 SIGNATURE, 
 
 what sufficient, within Statute of Frauds 17 
 
 SIMONY, 
 
 so called from Simon the Sorcerer 140 
 
 31 Eliz. c. 6 ib. 
 
 resignation bonds ib. 
 
 SLANDER. See Defamation. 
 
 SLAVERY 137 
 
 SOLICITOR, 
 
 lien of 144 
 
 notice of action by, in action on bill 351 
 
 SPARKS 300, et seq. 
 
 SPECIAL TRAIN, 
 
 when passenger may take, at company's expense 63, et seq 
 
 SPRING GUNS 276 
 
 STAKEHOLDER, 
 
 when money paid to, can be recovered 145, et seq. 
 
 See Interpleader. 
 
 STAMPS, 
 
 exemptions from stamp-duty 31 
 
 several documents but only one contract ib. 
 
 only one document but several contracts ib. 
 
 lost instrument it- 
 unstamped receipt ib. 
 
 use of unstamped agreement ib. 
 
 STATUTES See Appendix A.
 
 490 INDEX. 
 
 PAGE 
 
 STOLEN GOODS, 
 
 when true owner can recover 45, 152 
 
 effect of sale of, in market overt 152 
 
 suspension of action for tort when evidence of felony . . . 341 
 
 STOPPAGE IN TRANSITU 204, et seq. 
 
 STRANDING, 
 
 what amounts to a 200 
 
 SUICIDE, 
 
 effect of, on policy of life insurance 182 
 
 SUNDAY, 
 
 contracts made on, when illegal 141, et seq. 
 
 Sunday amusements 142 
 
 Sunday shaving St. 
 
 SUPPORT OF LAND, 
 
 action for disturbance of t 304 
 
 adjoining houses 305 
 
 laud supported by water 306 
 
 SURETY. See Guaranties. 
 
 SURVEYORS OF HIGHWAYS, 
 
 actions against 279, et seq. 
 
 SURVIVORSHIP, 
 
 presumptions as to 397 
 
 right of, in joint tenancy 116 
 
 TENANT. See Landlord and Tenant. 
 
 TENDER, 
 
 essentials of valid 235 
 
 effect of 236 
 
 TENDERDEN'S, LORD, ACT (9 Geo. IV. c. 14) 313 
 
 TITLE, 
 
 implied warranty of, on sale of chattel lf>4 
 
 tenant estopped from disputing landlord's 402 
 
 possession as against wrongdoer 330 
 
 negotiable instruments 153, et scq. 
 
 market overt and stolen goods 152 
 
 slander of 336 
 
 TORT, 
 
 damages in action for 359 
 
 novelty of, no answer to action 248 
 
 founded on contract 346 
 
 committed abroad 385 
 
 no contribution between defendants in 358 
 
 amounting to felonies 341
 
 INDEX. 491 
 
 PAGE 
 
 TRACTION ENGINES 283, et seq. 
 
 TRADE, RESTRAINT OF 131, et seq. 
 
 TRADE MARKS, 
 
 warranty implied from 168 
 
 TRADE UNION 132 
 
 TRESPASS, 
 
 escape of dangerous substances brought on land 256 
 
 ah initio 322 
 
 conversion 333 
 
 TRESPASSER, 
 
 persons setting man-trap responsible to 275 
 
 in regard to defendant's negligence 275, et seq. 
 
 TROVER. See Conversion 
 
 ULTRA VIRES, 
 
 meaning and illustrations of 125 
 
 UNDUE INFLUENCE, 
 
 gift obtained by 373 
 
 UNSOUNDNESS, 
 
 what is, in horse 164 
 
 USAGE, 
 
 evidence of, to explain written contract 37, et seq. 
 
 VADIUM 44 
 
 VARIATION OF WRITTEN CONTRACT 34, et seq. 
 
 VIBRATION FROM TRAINS 301 
 
 VIS MAJOR 50, 257 
 
 WAGERING CONTRACTS 144, et seq. 
 
 WAIVER 
 
 of forfeiture 103, et seq. 
 
 WARRANTY, 
 
 oral evidence cannot be given to contradict plain meaning 
 
 of 164 
 
 must be part of contract of sale 163 
 
 implied, of title \ . . 164 
 
 Implied, of quality 166 
 
 implied, of fitness on letting furnished house 
 
 general, does not extend to obvious defects 161 
 
 remedies for breach of . 162
 
 492 INDEX. 
 
 PAGE 
 
 WATERCOURSES, 
 
 rights of riparian ownership 248, et seq. 
 
 support of land by water ... 249 
 
 underground ib. 
 
 artificial ib. 
 
 percolating ib. 
 
 WAYS. See Highways. 
 
 WIFE. See Husband and Wife. 
 
 WITNESSES, 
 
 atheists may be 138 
 
 WORDS, 
 
 how to be taken on construing written contract 237 
 
 oral evidence to explain, when admissible 38 
 
 WRITING, 
 
 note or memorandum within Statute of Frauds 16, ct seq. 
 
 WRONGFUL DISMISSAL. See Master and Servant. 
 
 YEAR, 
 
 contract not to be performed within 24, el seq. 
 
 YEARLY TENANCY, 
 
 tenancy-at-will may become 101 
 
 notice to quit under 102 
 
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