UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LffiRARY KUBKIC Oi^' THE. COM]MON LAW. 1 A RUBRIC The Common Law, BEING A SHORT DIGEST OF THE COMMON LAW, Illustrated throughout by Leading Cases; WITH AN APPENDIX AND VERY COPIOUS INDEXES BY CHARLES GEORGE WALPOJ.E, M.A Of flip TiDipr Tempfp. Tirn'rhter at-Law. LONDON : SHAW & SONS, FETTER LANE AND CRANE COURT 1880. LONDON : PRINTED BY SHAW AND SONS, FETTER LANE TO THE RIGHT HONOURABLE SIR FITZROY KELLY, LORD (nriEF T.ARON, lis oolorli 18 WITH HIS TEinriSSION DKDK'A'i'KD 1!Y THE AUTHOR. 79//09 PREFACE. This book it is hoped may be of use to students; and is intended to serve as a kind ot* skeleton,, whereon may be subse- quently adjusted the various ramifications^ details, and distinctions, which are to be sought for and found in the great text books. The general principles of common law are on the whole simple and clear; and it is the mass of cases reported, a large proportion of which turn upon their own peculiar facts, to which facts the general principles have to be applied, that makes each branch of law appear so formidable to the beginner. When once the general principles are firmly planted in the head, the student will follow the cases, which are corollaries or exceptions to those principles, and appreciate the decisions of the judges therein, with facility and profit ; but until these general principles are clearly laid hold of, he is overwhelmed with what appears to him a chaotic and heterogeneous mass of legal learning. I have therefore endeavoured to sketch out a backbone for the student to work upon, which, though I feci it nuist be very incomplete, will, I trust, euable the reader to marshal l^KEFACE. his ideas. My object has beeii^ as far as possible^ to present a series of legal canons, and to illustrate these, where the meaning and effect would not be absolutely patent to the novice, Avith short abstracts of reported cases ; in this way combining a digest with a collection of leading authorities. I have adopted the somewhat novel plan of printing in two colours, under the belief that such an arrangement might help the student to take a bird^s-eye view of what is contained in these pages ; and this plan must constitute my apology for the somewhat fanciful name of a " Rubric of the Common Law/^ C. G. W. 3, Pai'EU 1>uildin(;.s, Temtle. Jam, 188C». y TABLE OF CONTENTS. BOOK I. Chapter I. Common law ... >> II. A right of action j> III. Forms of action » IV. Parties ... )> V. Statutes of Limitation PAGE Table of cases cited ... ... ... ... ... xi 13 VI. Of contracts generally. ... ... ... ... 17 VTI. Contracts of record and specialty ... ... ... 18 VIII. Simple contracts ... ... ... ... ... 21 IX. Of the discharge of contracts ... ... ... 27 X. How a contract is vitiated ... ... ... ... 30 XL The remedies for a breach of contract ... ... 35 XII. Contracts which must be under seal ... ... 37 XIII. Contracts which must be in writing ... ... 41 XIV. Of torts generally 50 BOOK II. OF PARTICULAR CONTRACTS. Chapter I. Contracts for the sale of goods ... ... ... 53 „ II. Fraudulent sales of chattels ... ... ... G3 „ III. Of a sale of goods. — 1. With a wairanty ... ('G 2. On a condition precedent 70 3. By fraudulent representa- tions ... ... ... 71 „ IV. Contracts for work and labour ... ... ... 74 „ V. Bailments ... ... ... ... ... ... 82 „ VI. Contracts uf indemnity. — 1. Guaranties ... ... 95 2. In.-;urance ... ... 100 „ VII. Contracts maile with and by agents ... ... 107 b Vni TABLE or OOXTEXTS. PAGE r'NATTER YITI. Contracts in relation to marriage 127 IX. Instruments negotiable hy indorsement and deliverv ... ... ... ... ... ... 1.37 „ X. Landloid and tenant ... ... ... ... 153 BOOK III, EELATIXTI TO PARTICULAR TORTS. Pakt I. Of the Tufrivgcincnt of the Private Fights ofOirners and Occup'iers of Land Chapter I. Servitudes .. 176 II. Waste 194 „ III. Trespass to land 199 Part II. Of Breaches of Duty hy the Oirners and Occiqners of Land. Chapter I. Nuisances ■ 202 „ TI. Tlie negligent use of real projierty ... ... ... 208 Tart III. (If the Infnn(jernent of the llieihts of Ovners of Chatteh. Chapter I. Tresjmss and conver-sion ... ... ... ...210 „ II. Wrongful distress 214 Part l\. Of Jheaclies of Did y in the Manarjemeni of Chattels, Chapter I. Of the negligent use of chattels 220 „ II. Negligent conduct of the Lailees of chattels ... ... 227 Part V. Of tlir Lnfrhujement of the Birjhts of the Person. Ch.\pter I. Battery and assault 229 ,, II. Of false imprisonment ... ... ... ... ...230 „ III. Of malicious 2>rosecntion and consjniacv ... ... 243 „ 1\'. or (Icfamatidii (if character 246 TABLE OF COXTENTS. ]X Part VI. Of Brmclies nf Duty in Relation to the Person Chapter J. Neffligent j^ersonal conduct „ II. Of fraudulent rL'iircscntiitions ... Part YII. Injuries Remltiiui from the Exercise of Statuforii rovers Part VII T. Of the EcJntion of Muster a nd Serrf(n f ... 260 261 268 BOOK IV. Damacfos 289 APPENDIX. 29 Carl II. c. 3, preanil.le and' sects. 1, 2, 3, 4, 17 (Stat, of Frauds) 307 9 Geo. IV. c. 14, ss. 6, 7 (Lord Tcnterden's Act) 308 1 Will. IV. c. 68 to s. 8, inclusive (The Carriers Act) I^Sq ;309 2&3 Will. IV. c. 71 to s. 4, inclusive (The Prescription Act) ... 312 8 & 9 Vict. c. 106, ss. 3, 9 (An Act to Amend the Law of Eeal Property) 314 17 & 18 Vict. c. 31, s. 7 (The Railway and Canal Traffic Act, 1854) 314 19 Si 20 Vict. c. 97, s. 3 (The Mercantile Law Amendment Act) ... 315 26 & 27 Vict. 0. 41 (The Innkeepers Act, 1863) 316 28 & 29 Vict. c. 86 (The Law of Partnership Amendment Act) ... 317 Index of examples ... ... ... 319 Index of illustrative cases ... ... ... ... ... ... 322 General index ... ... ... ... ... ... ... ... 331 b2 TABLE OF CASES CITED. A. PA&B Ackeraiiui I'. Ehrcnsperger ... ... 291 Ackroyd ik Smith ... ... ... 179 Acton, Atkin v. ... ... ... 75 Ada mes, Field 2>. ... ...' ... 201 Addison w. Gandesequi ... ... 115 Affleck y. Child 251 Agar- Ellis, r. Lascelles ... ... 286 Aleott, Bennett v 282 Aldous I'. Cornwell ... 150 Aldridge i>. Johnson ... ... 58 Allen, Hutier I' 19 Allen «. Wright 230 Alton y. MidUiud Kail way Company 282 Ambler, Turner v. ... ... ... 244 Ambrose!'. Kerrison ... ... ... 136 Amicable Society i\ Bollond . . . 106 Ancona r. Marks ... ... ... 113 Andrews, Re ... ... ... ... 281 Andrews I). Salt 286 Anon 232,261,266 Appleby 2'. Myers 79 Arden i\ Pullen ... 163 Armoury r. Delamirie ... ... 2l3 Ashby V. White ... ... ... 3 Ashlin y. White 261 Ashton, Storey I'. ... ... ... 273 Ashton, Taylor y ... 261 Astley V. Weldon 304 Atherton, Udell v 72, 116, 264 Atkin V. Acton , . ... ... 75 Atkinson, Richardson u. ... ... 211 Attack r. Bram well 292 Attenhorough, Morlcy t). ... ... 67 Atherstou, Nickells y. 165 Austin V. Guardians of Bethnal Green Union ... ... ... ... 39 Avery v. Clieslyn 196 Avery, Schmaltz z; 120 B. Bacon, Spice v. Badcock, Stei>hens Bailey, Sx parte 88 109 28 1. ■id ... Bank Bailey ?>. Bidwell Bailey, Fitzniaurice v. Biiley v. Lloyd Bailey, Williams v. ... Baines v. Ewing Baker, H(jrii v. Balchin, Howditch v. Baldwin v. Cole Bamford v. Shuttleworth Bamford v. Turnley ... "Bannerman v. White Bannister, Eichholz v. Barker, Price v. Barker v. Richardson Barrett, Towers c. ..." Barron i\ Fitzgerald... .• Bartonsliill Coal Company v. Re Barwick v. English Joint Stock Baseley, Seward w. Bites, Gerhard v. Batson v. Newman ... Hauman v. James Baxendale, Hadley v. Baxendale, Rice v. Baxter, Kelner t\ Baxter, Tarling v. Bayes, Bennett v. Bayes, Lee i\ Beal V. South Devon Railway Coi pany Beardman v. Wilson . . . Beaumont v. Brengeri Beck V. Rebow Beckwithc. Phill)y ... Beeston i\ Collyer Behn v. Kemble Bell r. Welcli Benjamin v. Storr Bennett v. Aleott Bennett r. Bayes Bennet v. Moita Bennett i\ Reeve Bennett, Renno v. Beiitall r. Burn Bergheim t\ Great Eastern R Company ... PAGE 144 46 124 30 119 195 237 211 123 207 71 67 100 189 291 110 280 264 ... 229 ... 264 34 ... 48 290, 296 ... 291 ... 121 ... 56 ... 215 ... 54 lilway 227 160 44 196. 237 74 261 96 294 282 215 274 179 75 45 91 Xll TABLE OP CASES CITED. PAGE Berkeley r. Haidv ... . . HI Bernard, Loi-d v. Lord V'aue . . . 195 Berringer v. Great Eastern Railway Company ... ... ... ... 281 Bid well, Bailey « 114 Bigland, Tliom o 2G1 Birch r. Dawson . 19fi Bird V. Gammon . . 95 Bird, Webb r. ... INS, 189 Bishop V. Elliot 196 Bistoli, Phillips i- 43 Blades v. Free ... ... 131 Blake's case ... ... ... ... 28 Blake v. Midland Baihv iv Company 292 Bkkeway, West iJ. ... ' ... "... 27 Bland, Wainwright r. ... .. 106 Blockey, Waddell r. 110 Blogg, Stnrt I'. ... ... ... 258 Blood worth v. Grey ... ... . 2 47 Bloxam v. Sanders ... ... ... 60 Bluett, Knowlman v. ... ... 42 Blundell, Boydell t? 42 Blundell, Duncan r. ... ... 78 Boast r. Eirth 76 Bolingbroke, Lord, v. Local Board of Swiijdon ... ... ... ... 273 BoUond, Amicable Society r. ... 106 Bolton V. Madden 22 Bott, Hiort ;• 212 Boulton «. Prtutice ... ... 135 Bourke, Forgan v. ... ... ... 74 Bowditch r. Balchin 237 Bowditch, Southwell r, 122 Bower D. Pcate ... ... ... 276 Boweren, Grynies v. ... ... 196 Boydell y. Blundell 42 Braddick, Wood r 126 Bradtield Union, Nicholson v. ... 40 Braithwaite, Lanipleigh ». ... 23 Bram well. Attack v 292 Brandon, Mamwaring i: ... ... 295 Brcarley, Kamsden z'. ... ... 9 Brengeri, Beaumont v. ... ... 44 Brewster, Walker v 204 Bridge, Robins v. ... ... ... 123 Briggs, Robinson y. ... ... ... 64 Bristol and Exeter Railway Company, Collins « 94 Bristowe, Grissell v. ... ... ... 120 British Columbia Saw Mill t'oinpany V. Nettleship 297 Brogden, Humphries c. ... ... 178 Bronuage t'. Prosser ... ... 249 Brooks, Pearce ■«. ... ... ... 31 Broom r. Hall 295 Brounker, Callo «. ... 75 Brown r'. Edgington .. . .. ... 68 Brown, Suffield r. ... ... ... 183 PAGE Brown, Tickle r 186 Brown, Tindal y 147 Brownlow v. Metropolitan Board ... 269 Bryant I'. Herbert ... ... ... 6 Bryson v. Whitehead ... ... 35 Burchell, Ea.stland y. 134 Burdett, May r 205 Burgess v. Gray ... ... ... 276 Burn, Benthall v 45 Buron v. Denmau ... ... ... 229 Bush, Harrison v. ... ... ... 256 Bush, Weaver r 229 Bushell, Edmunds u. 119 Bushell I?. Miller 210 Busst V. Gibbons ... ... ... 244 By well Castle, The 223 c. Callo I'. Brounker ... ... .. 75 Calvert, Clark I' 216 Carevv I'. Duckworth... .. ... 150 Carr r. Hood .. ... 255 Carrol, Gainsford u. ... ... 290 Cartledge r. Cartledge ... ... 283 Caton t'. Caton ... ... ... 128 Cator V. Levvisliam Board of Works 269 Cawk well u. Russell ... 193 Chadwick,Trower y.... ... ... 208 Chamberlain v. King ... ... 241 Chambers i'. Clarke ... ... ... 301 Chambers, Hutchins «. .. ... 214 Chanter c. Hopkins ... ... ... 69 Chaplin t!. Rogers ... ... .. 44 Charles, Forster t'. ... ... ... 261 Chartered Mercantile Bank of India V. Dickson ... ... ... ... 148 Chasemore v. Richards ... ... 4 Chattield, Comerford r 244 Cheseman J'. Exall ... ... ... 84 Cheslyn, Avery r. ... ... ... 196 Cheveley, Goodwin v. ... ... 199 Child r.' Affleck 251 Church V. Imperial Gas Company... 40 Claggett, George t'. ... ... ... 113 Clark r. Calvert 216 Clark V. Molyneux 250 Clarke t;. Chambers ... ... ... 301 Clarke r. Holmes 278 Clementson, Coulthart iJ. ... ... 99 Clough, Williams r 277 Cochrane, Ewart r. ... ■ .. 183 Cochrane ». Willis ... ... .. 31 Cocking V. Ward ... . . 41 Cockrell, Francis V. ... .. 85 Colburu, Plancbe v. ... .. ... 81 TABLE OF C'A-SES CITED. Xlll Cole, Baldwin v. Cole, Young V. Coleman, Glovev c. ' ... Collaril V. Sjuth Eastoru llaihvay Company ... CoUen t-. Writfht Collins i\ Bri.stol and Exeter liailvvay Compiny ... CoUinson v. Margetson Collyer, Beeston r. ... Comerford, Cliattield i'. Cook, Leeds c. Cook V. Ward Cooke, Lee r. ... Cooke V. Wildes Coombe r. Woolt'e Cooper, Davidson r. ... Corbett, Douglas v. .. Cork and Bandou Bailway Company V. Goode Cornelius, Harnier v. Corn well, Aldous u. ... Corporation of Seat'ord, Crook i\ ... Cory r. Thames L'on Works Company Coupland, Parmiter f. Coulthart v. Clenipntson Couturier v. Hastie ... Co.xiiead v. Richards ... Crauford, Lucena i\ ... Crawshay V. Eades ... Croekford, Knight c. Crook r. Corporation of Seaf ord Cross, Keg. v. Crosskey i". Mills Crossland, North Eastern Kailway Company v. Crouch V. London and North- Western Kailway Company Croydon Gas Company r. Dickenson Crozier i'. Tomkinsou Cubley, Pigot v. Cuckson t». Stones Curtis, He Curtis V. Williamson ... Cutter L\ Powell D. Dalby v. Indian and London Assu- rance Company Dale, Ilumfrey v. Dalzell, Lynch v. Dames, Indermaur r. Daniel v. North Darthez, Mitchell v Davenport, Farrell v. Davenport, Thomson r. AaE PAGE 211 Davey v. Shannon 42 71 Davidson i'. Cooper ... 150 193 Davies z>. Duncan 254 Davies r. England ... 278 293 Davies v. Mann 223 122 Davies, Offord v. 99 Davies, Penton t). 304 94 Davies v. Sear 184 15 Davies r. Solomon ... 246 74. Davies c. Williams 200, 282 241 Dawber, Foster y. 147 129 Daaber, Stead v. 28 248 Dawson, Birch v. 196 214 Deane v. Keate 86 258 Debenham y. Mellor ... 132 98 De Crespigny, Wellesley v. ... 248 150 DeHinne, Farrer «. ... 126 245 Degg V. Midland Kailway Company 280 Delamirie, Armoury v. 213 20 Delaney v. Fox 163 76 De la Tour, Hochster v. 81 150 Delaval, Rex v. 284 40 De Manneville, Rex v. 284 294 Denman, Burou v. ... 229 255 De Pinna, Hopewell v. 9 99 Uerrett, Kemp c. 155 107 Dickenson i\ Gup 66 251 Dickinson, Croydon Gas Company v. 98 102 Dickson, Chartered Mercantile Bank 62 of India v. 148 47 Dixon, Scott v. '264 40 Doe d. Graves v. Wells . . . 168 , 169 206 Doe d. Worcester School Trustees v. 109 Rowland 290 Doorman r. Jenkins ... 227 185 Douglas V. Corbett ... 245 Dowson, Pickering i\ 264 90 Duckworth, Carew u. 150 98 Duke of Brunswick, Gregory (;. 245 217 Duncan t». Blundell ... 78 84 Duncan, Davies, v 254 76 Dunn, McClaine I'. ... 115 284 Dunn, Richardson i'.... 295 114 Dunsniore, Read V 75 79 Duppa V. Mayo E. 215 Eades, Crawshay r 62 Eager D. Grim wood ... 282 105 F^astland V. Burchell 134 116 Eastwood, Ilcllawell v 195 104 Eddowes, Stewart v.... 48 205 Edgeware Highway Board r. Tlie 187 Harrow Gas Company 23 80 Edgington, Brown v. 68 157 Edmonds, Goring v. ... 99 114 Edmunds c. IJusbell ... 119 XIV TABLE OF CASES CITED. PAGE Edwards, Ex parte 286 Edwards v. Halinder ... ... 208 Edwards, Levy v. ... ... ... 238 Ehrensperger, Ackennau iJ. . . . ... 291 Eicholz V. Bannister... ... ... 67 Elliot w. Nicklin 283 EUiotson V. Feetham... ... ... 206 Elliott, Bishop j; 196 Ellis V. ShcffiL4d Gas Company . . . 27r' Elmore v. Stone ... ... ... 45 Emery r. Emery ... ... . 135 Emmerton v. Mathews ... ... 70 England, Davies v. ... ... ... 278 English Joint Stock Bank, Barwick v. 264 Etherington v. Parrott ... ... 131 Evans tJ. Walton 2S1 Ewarfc V. Cochrane ... ... ... 183 Ewing, Baines t). ... ... ... 119 E.\all, Cheeseman v.... ... ... 84 E.\all I'. Partridge 26 F. Farina V. Silverlock ... ... ... 266 Farrer tJ. Deflinne ... ... .-■ 126 Farrell v. Davenport... ... ... 157 Farren, Kemble v. ... ... ... 306 Fawcett v. Midland Railway Company 208 Fetthani, EUiotson «. 206 Felton, Hoey y 300 Ferguson, Sainter V ... ... 304 Festiniog liailway Company, Jones v. 269 Field r. Adames ... ' 201 Finch-Hattou, Wilson v. ... ... 162 Finden, Kemp v. ... ... ... 100 Firth, Boast v. ... ... ■•■ 76 Fitzgerald, Barron v. ... ... 110 Fitzgerald V. Northcote 229 Fitzmauriee I'. Bailey ... .. 46 Fletcher v. Marshall 108 Fletcher r. Eylands 203 Fogg, Selway v. ... ... ... 30 Ford V. Forster 266 Forgan i\ Bourke ... ... ... 74 Forster v. Charles ... ... ... 261 Forster v. Mackreth 141 Foster v. Dauber ... ... ... 147 Foster, Ford v. 266 Foster v. Stewart ... ... ... 283 Foster, Strong v. ... ... ... 99 Foulger t). Newcomb... ... ... 2-47 Foulkes V. Selway ... ... ... 1 29 Fowler r. HoUini 211 Fo.x, Delaney v. ... ... ... 163 Fo.K«. Gaunt 230 Fo.x, Wiggett u 279 France v. Gaudet 294 Francis V. Cock rell ... Free, Blades v. Freeman, Pasley r. ... ... Fryer v. Kynnersley ... Fuibor, Warrington v. Fynn, JEx parte G. Gainsford r. Carrol ... Galsworthy i\ Strutt Gammon, Bird v. Gandesequi, Addison v. Gandy, Gott v. Gardiner, Onley v. ... Gardner r. Grout Gaudet, France v. Gaunt, Fox v. Gaussen v. Morton ... General Omnibus Company i\ Limpus George v. Claggett ... Gerhard v. Bates Gibb r. Mather Gibbons, Busst v. Gibbous V. Pepper ... Giblinr. McMuUiu Gibson, Smale v. Glazebrook, Peaison i\ Glover, £x parte Glover v. Coleman Godfrey r. TurnbuU ... Goldsworthy, Me Gcode, Cork and Bandon Railway Company v. Goodwin v. Cheveley Gordon, Jones v. Goring t'. Edmonds ... Goss V. Lord Nugent Gott r. Gaudy Gould V. Robson Graham v. Hope Gray, Burgess i". Gray v. JefPeries Great Eastern Bergheim v. Great Eastern Berringer v. Great Northern Railway Company, Laurence v. Green v. General Omnibus Company Green, Price v. Gregory v. Duke of Brunswick Grey, Blood worth V. ... Griffin, Lee n. Grim wood. Eagle t>. ... Grim wood v. Moss ... Grissell r. Bristowe ... PAGE 85 131 262 250 100 284 Railway Company, Railway Company, 290 302 95 115 163 188 44 294 230 108 274 113 264 147 244 229 227 102 173 286 193 126 285 20 199 145 99 28 163 148 126 276 281 91 281 268 10 32 245 247 78 282 168 120 TABLE OF CASES CITED. XV PAGE Gi'ote, Young v. ... 151 Grout, Gardner v ... 44 Gryraes v. Bowcriu ... ' ... 196 Guardians of Bethnal Green Union, Austin V. ... ... 39 Gupp, Dickinson v ... 66 Gurney, Peek v. ... 265 Gutteridge v. Munyard ... 161 Gye, Luniley v. ... 281 H. 290, of Meat Hadley v. Baxendale... Hailes v. Marks Hales, Usil v ... Halinder, Edwards v. Hall, Broom v Hall V. Hollander ... Hall ^.Wright Hamilton v. Mohun Hammond v. Reid Ham])den v. Walsh ... Hanbury, Liebegs Extraot Company v. Hancock, Sliarpe ?>. ... Hardman v. Wilco.K ... Hardy, Boi-keley v. ... Hardy, Reg. v. Harmer v. Cornelius . . . Harper v. Williams ... Harrison v. Bush Harrison v. Jackson ... Harrison v. London Brighton and South Coast Railway Company ... Harrison v. Seymour Harrison, Wyatt u. ... Harrow Gas Company, Edgware Highway Board u. Hart V. Miles... Hart V. Windsor Harvey, IVIerest v. Hastie, Couturier 17. ... Havelock, Roberts t).... Hawkins, Metropolitan Saloon Omni- bus Company v. Hawkins v. Todd Hawksworth v. Hawksworth Hay ward, James u. ... Hay ward, Thomas v. .. Heath, Schneider iJ. ... Hellawell r. Eastwood Henderson v. Squire ... Herbert, JJryant v. ... Hermann r. Seneschall Hcugh V. London and North Western Railway Company... Hewlins t). Shippam ... 296 244 ■253 208 295 283 129 127 103 33 267 176 111 111 51 76 301 256 124 90 77 177 23 59 163 289 107 80 10 251 286 204 159 73 195 163 6 241 94 182 PAGE Hickman, Wlieatcroft i'. 124 Higgins V. Senior 116 , 122 Hillr. Royds 124 Hiudley v. Lord Westmeatli 136 Hindman, Robinson v. 75 Hiort r. Bott 212 Hiort V. London and North VA'estern Railway Company ... 213 Hoadley r. McClaine... 47 Hobbs V. London and South Western Railway Company 298 Hochster v. De la Tour 81 Holy, Felton v. 300 Hole V. Sittingbourne Riilway Company ... 277 Hollander, Hale v. ... 283 HoUins, Fowler v. 211 Holmes I'. Clarke 278 Hood i\ Cnrr ... 255 Hope, Graham v 126 Hopew. Hope 285 Hopewell v. De Pinna 9 Hopkins, Chanter v. ... 69 Hopkins v. Tanqueray 72 Hop wood r. Thorn ... 252 Horn V. Baker 195 Home V. Midland Railway C ompany 299 Hoisford V. Webster... 215 Horwood V. Smith ... 54 Howard v. Steward ... 117 Howe, Southern v. ... 266 Humble V. Hunter ... 112 Huifer v. Allen 19 Humfrey v. Dale 116 Humphreys y. Jones... 16 Humphries v. Brogden 178 Hunter, Humble u. ... 112 Hunter v. Parker 107 Huntley v. Rus.scll ... 195 Hurstmonceaux, Rex v. 154 Hutchins, Chambers v. 214 Huth, Ormrod v. 261 I. Imperial Gas Company, Church v. ... 40 ludermaur V. Dames... ... ... 204 Indian and London Assurance Com- pany V. Dalby ... ... ... 105 Jackson, Harrison r. ... ... 124 Jackson r. Metropolitan Railway Company ... ... ... ... 226 Jackson, Saunderson r. ... ... 48 XVI TALLE 0¥ CASES CITED. PAGE James, Bauuian v. ... 48 James v. Hay ward ... 204 Jarrett I'. Kennedy 261 Jeffeiies, Gray v. 281 Jenkins, Doorman v. .. 227 Jewsbury, Swift v. ... 116 ,263 Jewson V. Head 8 Joliiison, Aldridge r. . . . 58 Johnstone v. Sutton ... 244 Jolly V. Reus ... 132 Jones, -B.f parte 9 Jones V. Festiniog Railway Com] .any 269 Jones «. Gordon 145 Jones, Hnniplireys i\ 16 Jones V. Just ... 68 Just i\ Jones ... 68 K. Keate, Dcane v. .. 86 Kelly V Tinley .. 254 Kelner i\ Baxter .. 121 Kemble, Helm v. .. 261 Kemble v. Farren .. 306 Kemp, Derrett v. 155 Kemp ?'. Finden .. 100 Kendric-k r. Lomax ... .. 148 Kennedy, Jarrett r. ... .. 261 Kerrison, Andirose v. .. 136 King, CliamberlHin v. .. 241 Knight V. Crockford ... .. 47 Knight V. Lynch .. 246 Knight, Soane v. .. 255 Knowlmau i\ Bluett 42 Kinnersley, Fryer v .. 250 Lake, Williams v. Lampleigli v. Braithwaitc Langridge v. Levy ... Lamphier v. Phipos ... Laacelles, Agar-EUis r. Lawrence v. Great Northern Company ... Laveil, Magee v. Laverick, Searle v. ... Lavery v. Turley Lawrence, Podmore v. Lawton V. Salmon Lawton V. Law'ton ... Leach, Swire v. L^ef. B 259 Podmore v. Lawrence ... ... 256 Polkinghorn r. Wright 229 Popplewell, Phene 17. ... ... 165 Potter, Stockport Waterworks Com- jjany v. ... ... ... ... 207 Powell, Cutter v. ... ... ... 79 Powell, Sharp I) 291 Prentice, Bolton v. ... ... ... 135 Prentice, Scare v. ... ... ... 260 "Pi Ice V. Barker 100 Price JJ. Green ... ... ... 32 Price ?;. Seeley 231 Prosser, Bromage v. ... ... ... 249 PuUeu, Arden v. ... ... ... 163 E. PAGE Ramsden v. Brearley ... ... 9 Randall r. Newsom 69,293 Rangeley v. Midland R;iil\vay Com- pany ... ... ... ... 178 Rawson, Moore t>. ... ... ... 193 Raymond I'. Minton ... ... ... 77 Read v. Dunsmore ... ... ... 75 Read, Jeivson ??. ... ... ... 8 Rebow, Beck v. ... ... ... 196 Redhead v. Midland Railway Com- pany ... ... ... ... 91 Reedie v. London and North- Western Company ... ... ... ... 275 Rees. Jolly i> 132 Reeve, Bennett v. ... ... ... 1 79 Reg. V. Cross ... ... ... ... 206 Reg. V. Hardey ... ... ... 51 Reg. v. Light 238 Reg. «. Taylor 258 Reid V. Bartonshill Coal Company ... 280 Reid, Hammond v. ... ... ... 103 Renno, Bennet v. ... ... ... 75 Rex V. De Manneville ... ... 284 Rex w. Delaval 284 Rex u. Hurstmonceaux ... ... 154 Rex V. Pagham Commissioners, &c. 51 Rex V. Pease 270 Rex V. PiiiUips 258 Rex t). Pocock... ... ... ... 259 Rex V Smith 204 Rex t>. Weltje 259 Reynolds, Williams v. ... ... 294 Rice V. Baxendale ... ... ... 291 Richards, Chasemore v. ... .., 4 Richards, Coxhead I'.... ... ... 251 Richards V. Ro.se ... ... .. 185 Richardson v, Atkinson ... ... 211 Richardson, Barker v. ... ... 189 Richardson v. Dunn ... ... ... 295 Richardson I'. Mellish 295 Ridgway V. Wharton ... ... 48 Riding v. Smith 295 Riscorla v. Thomas ... ... ... 24 Risdon, Lee v. ... ... ... 196 Robart, Penton v 198 Roberts v. Havelock ... ... ... 80 Roberts v. Orchard ... ... ... 241 Roberts v. Smith 277 Roberts v. Taylor 229 Robins r. Bridge 123 Robinson v. Briggs ... ... ... 64 Robinson v. Hindman ... ... 75 Robinson v. Lyall ... ... ... 119 Robinson, Todd v. ... ... ... 118 Robsou, Gould v. ... ... ... 148 Rodgers v. Nowill ... ... ... 266 Rogers, Chaplin v. ... ... ... 44 TABLE OF CASES CITED. XIX PAGE Rohde V. Thwaites ... ... 58 Rooks, Turner v ... 134 Rose, Richards v. ... • ... 185 Ross, Thompson v. ... 282 Rowland, Doe d. Worcester Scliool Tnistees v ... 290 Royds, Hill f. ... 124 Russell, Cawkwell v ... 193 Russell, Huntley v. ... ... 195 Ryder v. Ryder ... 283 Rylands, Fletcher t) ... 203 s. Saint Helen's Canal and Railway Company, Manley ?) 270 Saint Helen's Smelting Company v. Tipping 203,207 Sainter v. Ferguson 304 Salmon, Lawton v. ... ... ... 196 Salt, Andrews v. ... ... ... 286 Sanders, Bloxam v. ... ... ... 60 Sanders v. Stewart ... ... ... 297 Saunderson v. Jackson ... ... 48 Sehmalts, Avery r. ... ... ... 120 Schneider r. Heath ... ... ... 73 Scott «. Dixon 264 Scott V. Shepherd ... ... ... 301 Seaman u. Nether cli It ... ... 256 Sear, Davies r. ... ... ... 184 Scare v. Prentice ... ... ... 260 Searle !'. Laverick ... ... ... 86 Scelev, Price r 231 Self e" Walter I) 203 Selway, Foulkes v 129 Selway v. Fogg 30 Seneschall, Hermann y. ... ... 241 Senior, Higgins v. ... ... 116, 122 Seward v. Baseley ... ... ... 229 Seymour, Harrison v. ... ... 97 Shannon, Davey v. ... ... ... 42 Sharp r. Powell 291 Sharpe v. Hancock ... ... ... 176 Sheffield Gas Company, Ellis i\ ... 275 Shei)herd, Scott r 301 Shippam, Hewlius r. ... ... 182 Shirley, Smith r 200 Shuttleworth, Bamford v 123 Silleui V. Thornton ... ... ... 105 Silverlock, Farina '•. ... ... ... 266 Sittingbourne Railway Company, Holer .'.. 277 Si.v C.irpcnters' case ... ... ... 199 .Smale r. Gibson ... ... ... 102 Smart, Tanner I'. ... ... ... 16 Smitli, Ackroyd i\ ... ... ... 179 Smith, llorwood r. ... ... ... 54 PAGE Smith V. London and South Western Railway Company... 299 Smith, McEwan r 61 Smith V. MarraLle 162 Smith, Martm r 154 Smith, North I' 272 Smith, Nugent v 87 Smith, Rex V. 204 Smith, Riding r 295 Smith, Roberts V 277 Smith V. Shirley 200 Smith, Tyson v 191 Soane j;. Knight ... ... ... 255 Solarte v. Palmer ... ... ... 149 Solebay, Mires v. ... ... ... 57 Solomon, Davies «. ... ... ... 246 Solomon v. Vintners' Comp.any ... 186 South Devon Railway Company, Bealt' ' ... .'.. 227 South Eastern Railway Comjiany, CoUardr .'..293 South of Ireland Collieries Company u. Waddle 39 Southcote V. Stanley... ... ... 205 Southern v. Howe ... ... ... 266 Southwell I'. Bowdich 122 Spice V. Bacon ... ... ... 88 Spill v.Maule 251 Squier ^. Mayer 196 Squire, Henderson v.... .. ... 163 Stafford, Worlaston v. ... ... 214 Stanley, Southcote i\ ... ... 205 Stead V. Dawber ... ... ... 28 Stephens «. Badcock ... ... ... 109 Stevens v. Midland Railway Company 243 Steward, Howard i\ ... ... ... 117 Stewart v. Eddowes ... ... ... 48 Stewart, Foster « 283 Stewart, Sanders r. ... ... ... 297 Stockport Waterworks Company v. Potter ' ... 207 Stone, Elmore v. ... ... ... 45 Stones, Cuckson r. ... ... ... 76 Storr, Benjamin i\ ... ... ... 294 Storey v. Ashton ... ... ... 273 Stourton iJ. Stourton.. ... .. 286 Stratton, Piggott y. ... ... ... 166 Stray, Taylor r. ... ... ... 109 Strong r. Foster 99 Strutt, (Jalsworthy r. 302 Sturt V. Blogg . . 258 Suffield r. Brown 183 Surey v. Piggot 192 Sutton, Johnstone r.... ... ... 244 Swan i\ North British Australasian Company Swift V. Jewshury Swire r. Leach ... 222 116, 263 ... 217 XX TABLE OF CASRS CITED. T. TaffVale Railway Company, Vauglian?'. 271 Tanner v. Smai-t ... IG Tanqueray, Hopkins v. 72 Tarling v. Baxter 56 Tarrant v. Webb 280 Taswell, Parker i'. 153 Tatton V. Wade 262 Taylor v. Asbton 261 Taylor, Reg. v. 258 Taylor, Roberts v. 229 Taylor i\ Stray 109 Taylor, Willans ii. 2M Thames li-on Works Company, Cory V 294 Thom V. Bigland 261 Thomas 1'. Hay ward 159 Thomas, Riseorla I'. ... 21 Thomas, Tripp ;•. 292 Thompson «. Pettitt .. . 291 Thompson v. Ross ... 282 Thompson v. Davenport 114 Thorn, Hopwood v. ... 252 Thnrntim, Sillem 2?. ... 105 Thwaites, Rhode v. ... 58 Tickle V. Brown 186 Tindal v. Brown 147 Tinkler, Mozley w 96 Tinley, Kelly v. 254 Tipping, St. Helen's Smelting Com- pany 202 207 To Id, Hawkins r 251 Todd V. Robinson 118 Tomkinson, Crozier c. 217 Towers v. Barrett 291 Tripp r. Thomas 292 Trower V. Chadwiek ... 208 Truscott V. Merchant Tailors' Com- pany ... 190 Tnrley, Lavery t'. 29 Turnbull, Godfrey v. 126 Turner v. Ambler 244 Turner v. Rookos 134 Turnley, Bamford r. 207 Tyson ik Smith 191 Udell V. Atherton Usil r. Hales ... u. V. ...116, 72, 264 253 Vandiemans Bank i'. Victoria Bank 146 Vane, Lord, v. Lord Bernard ... 195 Vanghan «. Menlove 227 PAGE Vaughan, Pemberton v. ... ... 32 A''aughan v. Taff Vale Railway Com- pany ... 271 Vicary, Phesey v. ... ... ... 182 Victoria Bank, Vandiemans Bank v. 146 Vigne, Oswell /' 103 Viilers w. Monsley 248 Vintners' Company, Solomon r. ... 186 w. Wade, Tatton f 262 Waddell I'. Blockey 110 Waddle, South of Ireland Collieries Company v. ... ... ... 39 Wagner, Lumley v. ... ... ... 27 Wain r. WarlteVs 47 Wainwright v. Bland ... ... 106 Waithman ?). Wakefield 132 Wakefield, Waithman V 132 Walker i\ Brew.ster 204 Walsh, Hampden u 33 Walter y. Selfe 203 Walter, Wason v 254 Walt(m, Evans ij 281 Waul, Cocking V. ... ... ... 41 Ward, Cook ?y. 248 Ward v. Loundes ... ... ... 36 AVard, Nobler 28 Ward, Penu r 229 Wtirlters, Wain v. ... ... ... 47 Warrington v. Fnrbor ... ... 100 NVason y. Walter 254 Watt, Oxlevr 199 Waud V. Weeks 247 Wand, Wood r. ... ... 50,177 W^eaver V. Bush ... ... ... 229 AVcbbi'. Bird 188,189 Webb, Tarrant z' '.. 280 Webster, Horsford r. 215 Weeks, Waiadr 247 Welch, Bell u. 96 Weldon, Astlev u 304 Wellesley, DeCrespignv r 248 Wells, Doe d. Graves f! ... 168,169 Weltje, Rex r 259 West u. Blakeway 27 Wcstmeath, Lord, Hindlev ?•. ... 136 Western t>. Wright ... ' 119 AVhartou I'. Lewis ... ... ... 129 Wharton ?\ Naylor 217 Wharton, Ridgway u. ... ... 48 Whcatcrol't r. Hickman ... ... 124 White, Ashbyr 3 White, Ashli'n v 261 \\'hite, Bannerman r. ... ... 71 White r. Wilks 57 TATSLE OF CASES CITED. XXI Whitehead, Brysoii v Wiggett V. Fox Wilcox, Hiirclmau v. ... Wildes, Cook v. Wilks' Case ... Wilks, White ?;. Willans v. Taylor Williams, jE/o- ^:>ar/e ... Williams v. Clough ... Williams v. Bailey . . . Williams, Davies v. ... Williams, Harper i\ ... Williams t>. Lake Williams v. Milliugtoii Williams, Paxtoii v. ... Williams v. Reynolds Williamson, Curtis r. Willingale.». Maitland Willis, Cochrane r. ... Wilson, Beardmau v. Wilson V, Finch Hatton PAGE PAGE 35 Windsor, Hart v. . 163 279 Wing V. Mill ... . 26 .. Ill Winlow, Parker v. . 122 258 Wood V. Braddick ... . 126 247 Wood V. Waud 50, 177 57 Woodley v. Metropolitan District 244 Railway Company... . 278 301 Woolfe, Coombe i-. ... . 98 277 Worlaston v. Stafford . 214 30 Wright, Allen r . 230 200, 282 Wright, Collen v. . 122 301 Wright, Hall r 129 46 Wright, Polkinnfhorn r. . 229 120 Wright, Weston /• . 119 245 W\att r. Harrison ... . 177 294 114 192 Y. 31 160 Yonng V. Cole 71 162 Young V. Grote . 151 book: I. CHAPTER I. COMMON LAW. § Common Law consists of — 1. Lex scripta. The statutes of tliis realm. 2. Lex non scripta. The jjrinc'/ples and usages of private justice, moral fitness, and public convenience, in relation to persons and property, which have time out of mind been acknowledged to be binding, by the tacit consent of the civilised community. (i) For instance. It is ^principle of the above character that no contract is binding on the party, who has been induced to enter into it by the fraud of the other party. (ii) That a man, who employs another to do an act, is legally himself the doer of that act. (i) It is an usage that real property descends to the eldest son of the deceased, (ii) That a man should have but one living wife at the same time. § Usage. "We may consider usage or custom under the heads of — . (i) General custoitis. Those which have grown up in the community at large. Such as the custom which regu- lates the inheritance of land. The custom which recognises as a crime the forging of a maii^s hand- writing to the prejudice of his riglit. B EUBEIC OP THE COMMON LAW. (ii) Particular or local customs'. Those, whicli have grown up in particular districts. Such as the custom of gavel kind, which regulates the inheritance o£ lands in the county of Kent. The custom of the City of London that a married woman, who is a trader within its precincts, may sue and be sued, as though she were a feme sole ; or the customs prevailing in different manors. § A PARTICULAR CUSTOM, to be Valid, must be one which — 1 . Has existed for a period, during which the memory of man runs not to the contrary, j , 2. Has been uninterrupted and uncontested, so ' ' far as the right to exercise it is concerned. 8.1s reasonable. 1. Is certain and definite. (iii) The Mustom oj me reliant s {Lex Mercatoria). Practices, which for better convenience in trading, have grown up in the mercantile community. Such as the ready mode of assigning a debt by the creation of a bill of exchange. Or the convenient process of transferring the property in a cargo by endorsing and handing over a bill of lading. EIGHT OF ACTION. CHAPTER II. A RIGHT OF ACTION. •^ A Ki(iHT ov ACTION is til G right of one who has suffered damage^ either legal {a) or actual, to recover by means of an action at law, compensation from another, who has caused such damage by committing either — ( I ) A breach of contract or (•^) A legal wrong. (Z») 1. A breach of contract at once gives a cause of action. 2. A tortious or wrongful act (injuria) is essential to the support of an action other than an action for breach of contract. (See post, Chap. XIY.) ^ Damage {Damnum) alone, however great, creates no liability. Ilhistrations. 1 . Injuria sine damno — William White and three others, constables of the borough of Aylesbury, refused to receive the vote of INIathias Ashby, an elector of Aylesbury. He brought an action against the constables, and it was held, that, though he had suffered no actual pecuniary loss, still, as his right to vote had been invaded, he was entitled to maintain an action. (<:•) :>. Damnum sine injuria — Chasemore owned a mill on the river Wandle, and enjoyed a prescriptive right to the use of the water of the river to turn his mill. Richards dug a well on his own adjoining land, and intercepted the underground. (a) Seiipost, Chap. XIV. "Torts." (6) Recognized as such Ly the huv. [See post, Chap. XIV.] (c) Ashbi/ v. IFhitc, 2 Ltl Ray 953. 4 RUBRIC OF THE COMMON LA.W. water whicli used to percolate through the soil into the Wandle. Chasemore sued Richards for interfering with his right to have the water for the ahove-mentioned purpose. It was held that no action would lie^ as, although no doubt the plaintiff had suffered considerable " damnum," the defendant had not committed any wrongful actj (injuria) which the courts could take cognizance of ; for the defendant had only acted within his rights^ and the plaintiff (seeing that the action of water oozing through the soil is of so uncertain a character) had no rights, which had been infringed, (a) (a) Chasemore v. Bichards, 7 H. L. Ca. 349. fOEMS OF ACTION. CHAPTER III. FORMS OF ACTION. A Actions are no longer brought in any special form. Once there was a special form of action for each form of complaint ; but now, some forms are obsolete, and some have been abolished by Act of Parliament. By 3 & 4 Will. 4, c. 27, "An Act for the limitations of actions relating to real property/^ a goodly aiTay of curious writs (see sect. 36) was wiped out. Three relating to real property, A'iz. : the '' Avrit of right of dower," the " writ of right of dower unde nihil habet," and the writ of " quare impedit," which were excepted from the operation of sect. 36, were abolished by sect. 26 of 23 & 24 Vict. c. 126, " The Common Law Procedure Act, I860." And the writ of ejectment, which was also excepted by sect. 36, was superseded by the Judicature Act, 1873. ^ The following classification of actions will nevertheless be useful — IReal, relating to land. Personal, relating to personalty. Mixed, relating to both. Personal Actions. I I I. Ex contractu. Ex Delicto. I I Covenant. Debt. Assumpsit. Detinue. Trover. Trespass. Case. Replevin. Covenant. An action for the breach of a covenant in a deed. Dehf. An action to recover a specific sum of money due, and payable. EUBRIC OF THE COMMON LAW. Assumpsit. An action founded on a promise. The word " assumpsit/^ lie promised/^ being the governing word in the old jSTormau French form. Detinue. An action for the detention of goods, founded on a fiction that the plaintiff had bailed the goods, sought to be recovered, to the defendant, who refused to give themup. "''=-'^'^^^'^^^^'^"=-"^' '--^^--'^-^^ This action is in form, therefore, one of contract ; though the Court of Aj)peal has decided that it is founded on tort ( Delictum) , so as to give a plaintiff, who has in an action recovered more than k,\0, his costs under the County Court Act, 1856, 19 & 20 Vict. c. 108 [which in sect. 10 says, that where the plaintiff recovers in an action, founded on contract, a sum, not exceeding £20 ; and in action founded on tort, a sum not exceeding £10, he shall not be entitled to any costs of the suit, unless the judge, who tries the case, certifies that there was a sufficient reason for bringing the action in a superior court] Illustration. Bryant, a picture dealer, bought a picture, purporting to be painted by Herbert, R.A. He took it to Herbert to know if it was genuine. Herbert said it was not; and refused to give it back to Bryant. Bryant brought an action of detinue against Herbert, and recovered £10, the value of the picture, and 1*. damages for the detention. The whole sum recovered being therefore over £10 but under £20, if the action was founded on tort the plaintiff would get his costs ; if on contract, he would not. The court decided that it was founded on tort. («) Trover or Conversion. An action to recover the value of goods, of which the owner has been wrongfully deprived, and which the wrong-doer has " converted " to his oavu (a) Bryant v. Eerhert, 3 C. P. D. p. 389. FOiiilS OF ACTION. 7 use. It was originally foimded on the fiction that the wrong-doer had found {trouver to find)^ and refused to give up the goods of the rightful owner. Trespass. An action for any direct injury to^ or wrongful meddling with, the person or property of another. Vase. Formerly, when a sjjecial and appropriate form of writ was used for each claim, and a claim arose, which did not come within any of the precedents, a new form of writ was issued, " in consimili casuj" by the clerks in chancery, by virtue of the statute of Westminster 2 c, 24. An action " on the case " lies for damages indirectly consequential on the wrongful act, whereas trespass only lies for directly consequent damages. Replcvw. See post, Book 111. Part 111. Chap. II. RUBRIC OF THE COMMON LAW. CHAPTER IV. PARTIES. § Persons ttho cannot sue — 1 . Felons. ■- . Outlaws. 3. Alien Enemies. § Persons who cannot be sued — 1. The Sovereign. 2. Ambassadors of Foreign States. § Persons who cannot either sue or be sued in the>r own NAMES 1 . Persons of unsoini <1 mind are incapable of instituting a suit : but the Court will, on application, appoint a committee to act for them. 2. Infants may sue in tort, by their prochein amy, or next friend ; and may by their guardians be sued in tort ; and also, for " necessaries," in contract, [a] 3. Married v^onien cannot appoint an attorney : or sue, or be sued, unless the husband is joined. [ But, by joining the husband, they can — «• Sue, or be sued, for torts, committed against, or by them, and P- On contracts entered into with them before mar- riage, j § Except — (i) When the husband is civilly dead, i.e. is undergoing penal servitude, [b) (a) A person on arriving at full age cannot ratity a promise made by him during infancy. 37 & 38 Vict. c. 62. (h) Jewson v. Bead, Loft. 142. PAETIES. 9 (ii) Or legally chad, i.e. when he has not been heard o£ for more than seven years, (c) (iii) When the wife has a judicial separation. In which case she is in the position of a /erne sole, {d) (iv) When^ on being deserted by her husband,, she has obtained a protection order from the magistrates under the Divorce Court Acts, ie) In which case she is in the same position as a woman who has ob- tained a judicial separation. (/) (v) When— " She carries on a calling separate from her hus- band, and has therefrom acquired any separate property, by virtue of the " Married Woman's Property Act, 1870," {g) or /3 Her husband has agreed in writing that any property she had before marriage should belong to her as her separate property after marriage, {h) She may bring an action for the protection and secu- rity thereof, in her own name, {i) (vi) By the custom of the City of London, when she is trading within its precincts on her own account. pSToTE. But she cannot be made a bankrupt, even where she has separate estate, except where she can be sued, as in cases (i), (ii), (iii), (iv), and (vi). m § 1. In contracts, no one can sue or be sued who is not a party to the contract. (r) HopcwcU V. De Pinna, 2 Camp. 113. ((/) 20 & 21 Vict. c. 85, s. 26. (c) 20 & 21 Vict. c. 85, s. 21 ; 21 & 22 Vict. c. 3 08, s. 6, (/) Ramsden v. Drearhj, L. R. 10 Q. B. 147. {(j) 33 & 34 Vict. c. 93, s. 1 \h) 33 &34 Vict. c. 93, ^. U. {{) 33 & 34 Vict. c. 93, s. 11 (A) Ex'ix Jones, 12 Ch. D. 484. h. 10 EUBRIG OP THE COMMON LAW. If the contract is made with more than one person^ as with a firm of partners, all parties to either side of the contract must he joined in suing, or in heing sued, as the case may he. For e,vainplc : Smith cannot sue Jones alone on a contract made by him with Jones and Brown jointly, or he would he setting up a contract different to the one really existing. § 2. In touts, all who have been directly or indirectly injured by the wrongful act may sue, either separately or jointly. If there are joint wrongdoers, they are all separately liable. § Corporations are enabled, either by the Charter, or the Act of Parliament, calling them into existence, to sue and be sued in their corporate name, on all contracts made with them under seal, [and, by certain Acts of Parliament, on con- tracts not made under seal, see jjost, Chaj). XII.] which are not " ultra vires," i.e. beyond the scope of the pur- poses for which they were created. § They can also be sued for torts committed by their agents; and for penalties; and can sue for torts committed against them, [a) § The right to bring or defend an action, either of contract or tort, cannot, as a rule, be transferred. § But there are exceptions to this rule — I. By n/stom. The right to sue on an assigned debt has been introduced by the invention of bills of exchange (see post. Book II. Chap. IX.) IT. Bi/ the conufion laiv. — 1 • The lessor has the right to sue his lessee^'s assignee upon covenants in a lease which run with the land (see post, Book II. Chap. X.) («) Green v. London General Omnibus Company, 29 L. J. C. P. 13 ; Pharma- ceutical Society v. London Supply Association, 4 Q. B. D. 313 ; Metropolitan -Saloon Omnibus Company v. Hawkins, 28 L. J. Ex. 201. PAETTES. 11 2. E;>?eciitors andadminislrators cau sue and be sued iu their representative capacity on contracts made with the deceased in his lifetime. They can also sue for torts done to the property of the deceased. But they cannot he sued for torts committed by the deceased, unless done within six months of his death {b). 3. Husbands can sue on contracts made with^ and on negotiable instruments given to^ their wives before marriage; and for injuries to, and on covenants running with, their wives' land; and for all their wives' choses in action. in. By ccriiiiii Arts of Piirlni mciit . — 1 . The assignees of the reversion of a lease may sue and are liable to the lessees and assignees of such lease on covenants therein which run with the land. [32 Hen. viii. c. 34.] 2. The transferee of a promissory note may sue the maker. [4 Anne, c. 9, s. 1.] 3. The transferee of a bill of lading may sue the shijiper of the goods consigned thereunder. [18 & 19 Vict. c. Ill, s. l.J 1. The assignee of a life or marine policy may sue thereon. [30 & 31 Vict. c. 144, and 31 & 32 ^'ict. c. 86.] 5. Choses in actiou belonging to companies which are being Avoniid up are assignable. [25 & 26 Vict, e. 89, s. 157.] 6. A trustee in bankruptcy may bring or defend any action relating to the in-operty of the bankrupt. [32 & 33 Vict. c. 71, s. 25, subs. 2. Bankruptcy Act, 1869.] (6) 3 & 4 Will. 4, c. 42 s. 2. (Statute of Limitations.) 12 RUBEIO OF THE COMMON LAW. 7. The assignee of any debt, or other chose in action, may sue for the same. Provided — (i) The assignment is in writing, (ii) Express notice in writing is given to the debtor, trustee, or other party, from whom the assignor would be entitled to claim the debt. [36 & 37 Vict. c. 66, s. 25, subs. 6. Judicature Act, 1873.] THE STATUTES OF LIMITATION. 13 CHAPTER V. THE STATUTES OF LIMITATION. § The legislature has thought fit to limit by statute the period within which a man shall be allowed to briug an action. § The governing Statutes of Limitation are as follows : — * 21 Jac. 1 c. 16. t 3 & 4 Will. 4, c. 27. t 3 & 4 Will. 4, 0. 42. II 5 & 6 Vict. c. 97, s. 5. ^*19 & 20 Vict. c. 97, s. 9. 1 37 & 38 Vict. c. 57. And by them the right to bring actions, in various cases, is limited as follows : — The asterisk, or other prefix denoting, on reference, by which Act each cause of action is affected. § It is limited to Twenty years after a cause of action has ACCRUED. t 1 . In the case of rent payable under an indenture of demise. t 2. On a judgment. [See ijost, p. 18.] X 3. On a specialty. [See j90*^, p. 20.] X 4. On a recognizance. [See post, p. 19.] ^ It is limited to Twelve years after a right of possession OR A CAUSE OF ACTION HAS ACCRUED. ^ 1 . For the recovery of land. ^ 2. For the recovery of a mortgage debt charged on land. 1[ 3. For the recovery of a legacy charged on land. ^ 4. For the recovery of any rent charged on land* [Note. Rent here means — (i) Rent service. An ancient rent coupled with fealty. 14 EUBEIC OF THE COMMON LAW. for which the services_, in respect of which the land was originally held^ have been commuted. It may be distrained for at common Jaw. (ii) Revt charge. A rent reserved to the grantor out of the land granted, with a power to distrain for such rent, charged on the land by the deed of grant. (iii) Rent seek [Siccus, dry rent). A rent reserved or granted out of land without the power of distraint being given by the deed of grant. ^ [But now, by 4 Geo. 2, c. 28, s. 5, a power of distraint ^j^^^''^'' is attached to all rents of this character.] *^!^^.^4' (iv) Fee farm rent [feitdi forma). A perpetual rent, ^ ^ payable in respect of land let to a tenant for ever. (v) Chief or quit rent {qK^etus redditus). A small rent payable by the freeholders and copyholders of manors. ] § It is limited to six years after the cause of action has ACCRUED. •^ 1. In assumpsit. ^- 2. In debt. *^'d. In account. f 4. For arrears of rent not reserved under a deed. f 5. For interest on money charged on land. ■>«■ 6. In detinue. * 7. In trover. ^ 8. lu trespass to land. * 9. In replevin. "'^lO. In case. Jll. Upon an award, where the submission to tlie arbitrator is not made by deed. J 12. For fines due in respect of copyhold estate. 1 13. For money levied under a writ oi fieri facias. § It is limited to four years after the cause of action has ACCRUED. * For trespass to the person. THE STATUTES OP LIMITATION. 15 § It is limitki) to two years after the cause or action has ACCRUKl). * 1 . For slander. J 2. For penalties under a statute. II 8. For injuries resulting from the exercise of local and personal acts of parliament. ^ Disability, IN cases avhere the limit is Twelve years. Persons under the disability of — 1 . Infancy. 2. Coverture. 3. Unsoundness of mind. and persons claiming through them, have six years grace, in wliich to bring their action, beyond the time when the disability ceased, or the person under dis- ability has died, as the case may be. ■ Provided that in no case an action is brought more than thirty years after the right first accrued, [a) § The operation ov these statutes is interrupted, and made to start afresh. 1 . In the case of any debt, or legacy, secured on land, [b) :l. In the case of specialty debts, (c) and ;j. In the case of simple contract debts, {d) (i) By part payment or part satisfaction on account of either princij)al or interest. (ii) By an acknowledgement of the debt ; which, in order to be valid must be — " In writing, (c) [d) '^ Signed by the party chargeable, or his agent, [d) [e) y- Unqualified, (e) or (a) 37 & 38 Vict. c. 57, ss. 3 and 5. (6) 37 & 38 Vict. c. 57, s. 8. (c) 3 & 4 Will. 4, c. 42, s. 5. {d) 9 Geo. 4, c. 14, s. 1. (t) Collinaoii v. Manjchon, 27 L. J. Ex. 305. 16 EUBETO OP THE COMMON LAW. ^ If conditional, the condition must be shown to have been fulfilled, {a) Illustration. On the 6th June^ 1833, Jones signed a joint and several promissory note, as surety for his brother Robert, and on application for payment on March 6th, 1811; wrote to Humphreys to say, that he, Humphreys, must make his claim on the note on his brother Robertas widow and executrix, and that " what she might be short, he would assist to make up/' Mrs. Robert Jones, when applied to, paid nothing ; and an action was " brought in 1844, against Jones. The Court held that the con- ditional promise became absolute on Mrs. Jones' failure to pay. {a) [Note. The words '^ I cannot pay the debt at present, but I will pay it as soon as I can," were held to be in- sufficient to defeat the operation of the statute, in the absence of any proof of the debtor's ability to pay. (b) ] [Note. The Lord Chancellor has, at the beginning of the present session (February, 1880) brought in a bill, in which it is pro- posed to reduce the period within which debts may be recovered, in the case of specialty debts from twenty years to twelve years, and in the case of simple contract debts from six years to three years. It is greatly to be hoped that such a measure may be passed, and there does not seem any good reason, why, in the case of simple contract debts, the period during which a claim may be brought should not be reduced still fiu'ther ; say to one year, in respect of sums not exceeding JIO. ] [(i) Humphreys v. Jones, 14 M. & W. 1. {h) Tanner v. Smart, 6 B. & C. 603. OP CONTRACTS GENERAL LY. I 7 CHAPTEE VI. OF CONTRACTS GENERALLY. § Contracts may bk — 1. Executory. That is, where there is a promise to do, or not to do, something in the future. 2. Executed. Where one, or both, of the contracting parties has carried out what he agreed to do. For example, where Jones promises to pay Smith j66 a load for six loads of hay, which Smith is to deliver to him ; when Smith has delivered the hay, the contract is executed, as far as he is concerned ; but still executory on Jones^ part, until Jones has made payment. § Contracts may also be— L Exprefts. Where the terms of the contract are clearly defined by both parties. • 2. Implied. Where the law presumes a contract from an existing state of facts. For iii.^tancr . if Jones, who is a gardener, works in Smith's garden for a month at Smith's request, the law presumes a contract on Smith's part to give Jones reasonable wages for his labour. § Contracts are of three kinds — L Of record. 2. Of specialty. 3. Simple. 18 EDBEIC OF THE COMMON LATN' CHAPTER VII. CONTRACTS OF RECORD AND SPECIALTY. Contracts op record — 1. Judgments. A judgment recovered in a court of com- petent jurisdiction, wbetlier English, foreign (whicli includes Scotch and Irish judgments), or colonial, con- stitutes a contract of the highest kind ; and an action can he brought thereon. [But no costs can he recovered in an action on an English judgment without an order from the judge trying the case, as the plaintiff might have realised his judgment by execution («) .] 2. Statutes merchant. Bonds of record acknowledged before the clerk of the statutes merchant, and the Lord Mayor of London, or a mayor of some other city or borough, sealed with the seal of the debtor and of the Sovereign; and conditioned, that if the debtor fails to pay his debt, by a certain day, execution may be awarded against his lands and goods. 3. Statutes staple. Bonds of like nature to the preceding only acknowledged before the mayor and constables of the staple in the chief cities. \Stapulum, Est ape, a market. The merchants of the principal " staples,^' or marts, originally held courts, and exercised a certain jurisdiction for the regulation of their particular trades in Westminster, York, Lincoln, Canterbury, Norwich, Newcastle, Chichester, Winchester, Bristol, and other cities.] {) 5 & 6 Will. 4, c. 41, s. 1. (<■) Ihhl sect. :.'. THE EEMEDIES FOR A BREACH OF CONTRACT. 35 CHAPTER XL THE REMEDIES FOR A BREACH OF CONTRACT. I. An action for damages. II. An action for specific performance of the contract — When the receipt of damages does not afford a complete remedy, the conrt will order the contract to he specifi- cally performed. For example, where a contract to deliver a cargo of wheat at a certain price is hroken, the party injured can go into the market and buy other wheat of exactly the same character^ and sue for the difference, if any, between the contract price and the price he had to pay for the wheat in the open market ; and the damages he would in this way get would put him in the same position that he would have been in if the original contract had been performed. But where a contract to sell a particular estate, or a chattel of a peculiar character, is broken, a complete remedy can only be had l)y a conveyance to the pur- chaser of that identical estate or chattel, as there is no other exactly like it in the market for him to buy. Illustration. Bryson, who Avas a dyer in Spitalfields, and had a particular secret for dyeing bombasecn, agreed with "Whitehead to sell him his business and secret. Disputes afterwards arose, and "Whitehead refused to complete. The court, on Bryson^s application, granted specific performance of the agreement, {d) III. Mandaiiivs. A writ of mandamus to perform a contract will {il) Briison v. Ulntehead, 1 Sim. & St. 74. d3 36 RUBRIC OF THE COMMON LAW. be granted wliere the contract involves the performance of a cluty^ in which the jjuhlic at large^ and the plaintiff himself personally^ are interested, (a) Illustration. The commissioners nnder the Tnnstall Im- provement Act became indebted to AYard and Son^ architects. By a provisional order the commissioners ceased to exist, and their property was transferred to the Tnnstall Local Boards who were empowered to satisfy all debts contracted by the commissioners, ont of such transferred property, and to charge any de- ficiency on the rates. There was a deficiency, and the Wards sued the board (in the name of their clerk), claiming a mandamus to compel the board to raise a rate to satisfy their claim. It was held that they were entitled to have the writ to issue, {b) IV. An injunction to restrain the breach of a contract will be granted, where there is an agreement to abstain from doing a particular thing, (c) Illustration. Dr. ISIartin and Lady Arabella Howard, his wife, had a house near the parish church of Hammer- smith, and were greatly disturbed by the ringing of a five o^clock bell. They agreed with the vestry to build a cupola, and erect a clock to the church, on the terms that the bell should no longer be rung. The cupola was built, and the clock erected, and the bell ceased to ring. After two years, one Nutkin became church- warden, and started the bell again, upon which an in- junction was sought, and granted, to restrain the vestry from ringing the bell in breach of the agree- ment, {(l) (a) Common Law Proceilure Act, 1854, 17 & 18 Vict. c. 125, s. 68. (b) Ward v. Lovmihs, 28 L. J. Q. P.. 265. (c) Cf. Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, s. 79. (J) Mm-fin v. NvfJdu. 2 P. ^\'ms. 266. CONTEACTS WHICH MUST BE UNDER SEAL. 37 CHAPTER XII. CONTRACTS WHICH MUST BE UNDER SEAL. [A DEED must be — 1. In writing, to express the contents. 2. Sealed with the seal of the parties, to express their consent. [Note. Signing is not necessary, (e)" 3. Delivered to the party, in whose favour it is made, to make it binding or perfect. [Note. If delivered to a stranger until certain con- ditions be performed, and afterwards to be delivered to the party, to whom it is made, it is called an "escrow " ; that is "a mere writing,"^ escrwer^ ] I. An escecutory proiuise icith no consideration must, in order to be valid, be made by deed. For if Jones promises by parol to paint Smithy's portrait for nothing, Smith can- not enforce the contract. But if Jones has covenanted to do so in a deed he will be bound. II. A gift, if there has been no transfer of the thing given. Eor if not made by deed it can be revoked at will. III. Feoffments. (/) ^I'hat is, grants of land in fee simple by the delivery of seizin and possession of what is given. IV. Grants and transfers of Umd must, at common law, be made by deed. V. Grants and transfers of incorporeal hereditaments. As, a right of common, a seignory, or a rentcharge, must at common law be made by deed. VI. Exchanges of land. (/) That is, the mutual granting of equal interests, the one in exchange for the other, (e) Shep. Tuucli. .")G. (/) 8 & 9 ^'ict. c. 106, s. 3. 38 EUBEIC OF THE COMMON LAW. VII. Partitions of land. («) That is, the dividing the lands o£ joint-tenants, tenants in common, and co-parceners, so that they may each hold their own in severalty. VIII. Surrenders of land. («) That is, the yielding up of land and the estate a man has therein to another, who has a higher and greater estate in the same. IX. Assignments of leaseholds. («). X. Leases which are required to be in writing by sect. 1 of the Statute of Frauds (see Appendix). That is, leases for a longer period than three years, (a) XI. Transfers of patent rights. For, what can only be created by deed, can only be transferred by deed. XII. Transfers of ships and shares of ships must be made by bill of sale, by the Merchant Shipping Act, 1854. {h) XIII. Transfers of shares in joint stock companies incorporated by Act of Parliament, by the Companies Clauses Con- solidation Act, 1845. (c) XIV, Contracts with an urban sanitary authority, if over <£50 in value, by the Public Health Act, 1875. [d) XV. Mortgage debentures issued by land companies, by the Mortgage Debenture Acts, 1865, 1870. [e] XVI. Apoiver of attorney to execute a deed. That is, an autho- rity to another to execute a deed as agent. XVII, Contracts made by a corjmration. For the only means a corporate body has of authenticating its contracts is by affixing its seal. Illustration. The guardians of Eethnal Green Union ad- vertised for a clerk. One Austin applied, and entered on his duties, which consisted of keeping accounts of a somewhat complicated character. He was very (a) 8 & 9 Vict. c. 106, s. 3. (6) 17 & 18 Vict. c. 104, s. 55. (c) 8 & 9 Vict. c. 16, s. 14. {d) 38 & 39 Vict. c. 55, s. 174. (c) 28 & 29 Vict. c. 78 ; 33 & 34 Vict. c. 20. CONTRACTS WHICH MUST BE UNDEll SEAL. 39 shortly afterwards dismissed, and sued the guardians for breach of contract. It was hekl that, as there was no agreement under seal, he couhl not maintain his action. (/) § Exceptions — 1. Where power is specially given to a trading cor- poration, by tlie charter, letters patent, or statute, to Avhich it owes its existence, to enter into con- tracts by certain of its own officers. 2. In the case of corporations, or companies, consti- tuted for the purpose of trading, which may enter into all contracts of ordinary occurrence in their respective trades, without limit as to amount. Illustration. The South of Ireland Collieries Company, incorporated under the Companies Act, 1862, for the working of certain collieries, contracted with Waddle for the supply by him to them of a pumping engine and machinery. In an action by the company for not delivering the engine, &c., it was held, that the action was maintainable, although the contract was not under seal, [y) 3. Where the contract is for — ■ (i) The performance of insignificant acts, (ii) Of acts of frequent recurrence, (iii) The carrying out of the very purposes for which such coi'j)()ratious were created. Illustration. The Imperial Gaslight and Coke Company agreed to supply Church with gas at £\2 \Qs. per annum. Afterwards Church refused to have the gas, and the company sued him for not accepting it. (/) Austin w. The OiinnHans of llithiinl (rrceu Union, L. R. i), C. P. !)1. {(j) tiouth of Ireland Collicrioi Comiiuvj v. Jrnddlc, L. II. 3, C. P. 4G3. 40 RUBEIC OV THE COMMON LAW. The court held that the company could maintain their action, though the contract Avas not under seal, (a) 4. "Where the consideration is executed, and the cor- poration have got the benefit of the contract. Illustration. Nicholson supplied coals to the guar- dians of the Bradfield Union. The coals were used. It was held that he could sue the guar- dians for the price of the coals, though the agreement, under which he supplied them, was not under seal, {b) 5. Where one has acted on the faith of a contract with a corporation, which is not under seal, and has incurred expense in so doing. Illustration. The Corporation of Seaford passed a resolution, by which they agreed to let Crook a piece of foreshore for three hundred years. Crook entered, and built a sea wall and a terrace. Afterwards the corporation gave him notice to quit, and brought ejectment, relying on the agreement not having been under seal. The court restrained the action on Crook^s ap- plication, and decreed specific peii'ormance of the contract, (c) (fl) Church v. Imperial Gas Company, (i. A. & E. 846. {h) Nicholson v. The Bradfield Union, L. R. 1, Q. B. 020. (c) Crook V. The Corporation of Seaford, L. E. 6, Ch. 551. CONTRACTS WHICH MUST BE IN WRITING. 41 CHAPTER XIII. CONTRACTS WHICH MUST BE IN WRlTlNa. 1. Contracts WITHIN section 4 and section 17 op the Statute OP Frauds. W 1. Contracts to charge executors and administrators on any special promise to a^iswer damages out of their own estate. («) [Such a contract wcnikl be anyhow void as a "nudum pactum," unless there were some consideration to support it.] 2. Contracts to anstver for the debt, default, or miscarriage of another. {^) These are contracts in the nature of a guarantie. (See post. Book II. Chap. VI.) 3. Contracts in consideration of marriage. (^) This does not apply to a promise to marry between principals. (See post, Book II. Chap. Ylll.) 4. Contracts for the sale of interests in land. (^) This means any contract (not operating as a transfer) which relates to the sale of any interest in land. For example. An agreement to assign^ grant, or surrender a lease ; an agreement for the sale of "fructus na- turales" before severance from the soil. Illustration. Mrs. Cocking agreed with Ward, in conside- ration of £100, to surrender her tenancy of a farm to the landlord, and to prevail on him to accept Ward as his tenant in her place. This was held to be an agree- ment for the sale of an interest in land within the ^ meaning of the statute. (/) "^ '""' ""^ ^=^.UiXu,^^^ {d) 29 Carl. 2, c. 3. [Sl-c Uil' f-tatutc ut length in the Appendix.] (e) Sect. 4. '^^Ua>. (/) Cocldwj V. IVaid, LJ L. J. C. V. 245. U dl .c 42 RUBEIC OP THE COMMON LAW. 5. Contracts which are prim^ facie not to be completed within a year, (a) Illustration. Messrs. Boy dell brouglit out an illustrated edition of Shakespeare in eighteen numbers, two of which, at least, were to come out annually. Blundell agreed to take in the numbers ; received, and paid for the earlier numbers as they came out, and then refused to take any more. In an action by Boydell for breach of contract, it was held, that as no agreement in writing was proved, Blundell was not bound to take the subsequent numbers, {b) 6. Contracts for the sale of goods of the value of £10 atid upwards. The contract must be in writing, whether the goods are in existence at the time of the making of the contract or not. [d) Except — (i) In cases (1), (4), (5), and (6), where the considera- tion is executed. Ilhistration. Bluett had some illegitimate children by Knowlman, and agreed with her verbally to pay her £300 per annum, so long as she should maintain and educate them. At Michaelmas, 1870, he discontinued his payments, but she continued the maintenance and education of the children as before. In May, 1873, she sued Bluett for two-and-a-half years^ arrears, and the Court held, that as the consideration was executed, the statute did not apply, and she was entitled to recover, ie) (a) Sect. 4, awd per Hawkins, J., in Daveyx. Shannon, 4 Ex. D., 81. {b) Boydell v. Blundell, 11 East, 154. (c) Sect. 17. {d) 9 Geo. 4, c. 14, 8. 7. Lord Teiitenlen's Act. (e) KuQwliaan v. Bluett, L. E. 9, Ex. 307. CONTRACTS WHICH MUST BE IN WRITING. 43 (ii) In case (6) where the buyer 1 . Accepts^ and 2 Actually receives a part of the Goods. (/) [§ Acceptance may be — 1 . Actual. That is with the intention of taking possession as owner. « Ilh/stration. Bistolij a foreigner^ bought at an auction some jewelry. When knocked down to him, he held it in his hands a few minutes, and handed it back to the auctioneer, saying he had been mistaken as to the value. In an action for not accepting the jewelry, the defendant pleaded the Statute of Frauds, and the above facts were put forward as evidence of an acceptance and receipt, sufficient to take the case out of the operation of the statute. The Court held, that it was a question for the jury, whether there had been an actual ac- ceptance by Bistoli, with an intention of taking possession as owner. {(/) ^- Gardner bought goods of Grout. After the sale he went to Grout's warehouse and got samples out of the bulk of the goods bought. The samples were weighed and entered against him in Grout's book. Grout refused to com- plete the sale, and in an action by Gardner for not delivering the goods, the Court held the above facts to have been an acceptance of a part of the (/) Sect. 17. (y) Phillips V. BisfoJi, 2 B. & C. 511. 44 RUBEIC OF THE COMMON LAW. goods, sufficient to destroy Grout's defence under the statute, (a) 2. Constructive. Where the vendee has exer- cised some dominion over the goods. «• Illustration. Kogers bought a stack o£ hay of Chaplin^ and then resold part of it. He was held to have done an act inconsistent with a right of property continuing in the vendor, and to have accepted the hay within the meaning of the statute, [b) 1^ Brengeri bought a carriage of Beaumont^ a coachbuilder ; he ordered certain alte- rations to be made, and then sent for and took a drive in it_, saying he intended to take it out a few times, as he wanted it to pass for a second-hand carriage for purposes of exportation. He afterwards refused to take it j and, in an action by Beaumont, it was held that, by assuming to deal with it as his own, he had accepted it. [c] § Actual rkc k i pt "Where the vendor has parted with the possession of the goods, and placed them under the control of the vendee. ^ There is also what may be somewhat paradoxi- cally called '^ Constructive actual receipt." 1 . Where the vendor retains the possession of the goods, but under an altered character, so that he has lost his right of lien over them. Illustration. Elmore, a livery stable keeper, (a) Garchxtr v. Grout, 2 C. B. N. S. 340. (5) Oiaflin \. Rogers, 1 East, 192. ((') Beaumont v. Brengeri, 5 C. B. 301. CONTRACTS WHICH MUST BE IX WRITING. 45 sold to Stone a pair of horses. Stone told liim he had no place to put them in, and Elmore must keep them at livery for him. Elmore transferred them from his sale stable to his livery stable. In an action by Elmore for the purchase- money, it was held that, the above facts shewed a delivery to, and a receipt by. Stone ; and that Elmore had lost his lien on the horses, his character of ven- dor being clian;^ed to that of agent for the purchaser, [d) 3. Where the goods are in the possession of the ^■cndor^s agent, there will be a receipt by the vendee as soon as the agent has " attorned ■'•' to him ; that is, recognised him as OAvncr. Illustration. Burn bought a hogshead of wine of Baker and Farnley, which was lying in the London Docks, and received from them a delivery order and invoice. He lost the de ivery order, and refused to pay for the wine. In an action by the assignees in bankruptcy of Baker and Farnley for the price, it was held, that there could be no actual receipt of the wine by Burn until the delivery order had been accepted by the dock company, or the latter had consented to hold the wine for him. (f)] (iii) Also in case (6) where the ^'cndec gives something in earnest to bind the bargain, or in part payment. (/) [Any sum so paid however small will sufHcc.'j {d) Elmore v. Stone, 1 Taunt. 158. (e) Benthall v. Hxni, 3 B. & C. 423. (/)S."ct. 17. 46 RUBEIC OF THE COMMON LAW. (iv) In all the cases where there is a memorandum in writing of the agreement or bargain, [a) § Essentials of the written MEMOKANi>UM. It must contain, — 1 . The names of the parties. Illustration. Williams undertook to build certain cottages for William Owens and John Thomas, who handed him a guarautie of Thomas Lake, in the following terms : — " Sir, I beg to inform you that I shall see you paid to the sum of .€800 for the ensuing building, which you undertake to build for ]Messrs. Thomas and Owens of Cajjloch. "I am, yours, &c., "Thomas Lake.'' This, in an action on the guarantie, was held not to be an agreement, inasmuch as the name of Williams, the other party to the contract, did not appear therein, [h) 'Z. The subject matter. 3. All the material terms, so that the question is not left in doubt. Illustration. Sir John Bailey was in treaty with the Hon. Mr. Fitzmaurice for a lease of a house and stables, which were held by Fitzmaurice for two difPerent terms of years. Letters passed between the parties, embodying some of the terms of the con- tract, but no mention was made of the commence- ment or duration of the lease of the stables. In an action by Fitzmaurice for not completing, it was held that these Avere material points, the omission of which was fatal to the validity of the agreement, (c) 4. («•) The consideration, under section 4, [ except in the case of a guarantie; where, it is now made unnecessary bv section 3 of the Mercantile Law Amendment Act, (a) Sects. 4 and 17. {h) Williams v. Lnhe, 29 L. J. Q. B. ]. (f) Fitzmaurice v. Bailey, 9 H. L. C. 78. CONTEACTS WHICH MUST BE IN WETTING. 47 1856. (d) This provision was passed in consequence of the decision in the accompanying ilhistration, which is still, however, an authority in respect of all other contracts within the Statute of Frauds. Illustration. Wain & Co., forbore to sue one Hall, in consideration of which Warlters promised to pay them some £56, the amount due from Hall to them. The promise was in writing, but no mention was made of the consideration of the guarantie. It was held that the j)laintiffs could not recover, (e) J (^•) The price, under section 17. If the price has been agreed upon. Otherwise a reasonable price will be implied. Illustration. Hoadly, a coach-builder, contracted in writing to build Sir Archibald McClaine a carriage. No agreement was come to about the price. When the carriage was sent home, Sir Archibald refused to accept it, as the price demanded was over £"480. In an action by Hoadly for not accepting the car- riage, the Court held that the law would imply that a reasonable price was to be paid. (/) 5. The signature of the party to be charged, or that of his authorized agent, {g) [This need not be at the end of the document, so long as it clearly governs the whole agreement. Illustration. An agreement beginning, "I, James Crockford, agree to sell, &c.," was held to be sutfi- ciently signed to satisfy the statute, {h) ] [Note. Several documents may be read together in order to constitute the memorandum, so long as the connection between them is apparent from 00 19 & 20 Vict. c. 97, s. 3. (e) Wain v. IVaiiters, 5 East. 10. (/) Hoadley v. McGlaine, 4 I\r. k Sc. 340. (//) Sects. 4 and 17. {h) Kuifjht V. Crorl-fnrd, 1 Esji. 191. 48 RUBRIC OF THE COMMON LAW. the documents themselves ; and parol evidence is not required to show such connection. 'Illustration. The following sale-note was sent by the vendors to one Sanderson^ unsigned. " Bought of Jackson & Hankin^ distillers,, No. 8, Oxford Street, 1,000 gallons of gin ; 1 in 5 gin, 7s. £350.^' " Aiid subsequently they wrote him a letter asking for directions, as to delivery, signed, " Jackson & Hankin.""^ It was held that the two documents referred sufficiently to one- another, so as to be read together without parol evidence being necessary to explain their relation ; and, consequently, that they together formed a binding contract, (a) ] II. A representation as to character. [See post, Book III. Part VI. Chap. II., and 9 Geo. 4, c. 14, s. 6. III. An acknowledgement of a debt, which will bar the Statute of Limitations. [See ante, p. 15; and 9 Geo. 4, c. 14, s. 1. 3 & 4 Will. 4, c. 42, s. 5. 3 & 4 Will. 4, c. 37, ss. 14, 42. 37 & 38 Vict. c. 57, s. 8. IV. A consent to the enjoyment of a servitude, which will pre- vent the operation of the Prescription Act, 1832. [b) For example. Twenty years uninterrupted enjoyment of a right to the access of light gives an indefeasible title, unless it appears that it was enjoyed under a written consent. (ff) Saundcrsoii v. Jachon, 2 B. & P. 238. See also Ridxjway v. Wharton, 6 H. L. C. 238 ; Baumann v. James, L. R. 3 Ch. 508 ; Lonrj v. Miller, 4 C. P. D. 450 ; Steivart v. Eddmces, L. R. 9 C. P. 311. (/-) 2 & 3 Will. 4, c. 71, s?. 1, 2, 3. CONTEACTS WHICH MUST BE IN WRITING. 49 V. Agreements between master and servant as to deductions from wages, in respect of certain matters under the " Truck Acts," [1 & 2 Will. 4, c. 37, s. 23.] VI. Special contracts with railway companies for the carriage of animals and goods. [^eepost, Book II. Cliap. V., aud 17 & 18 Vict. c. 31, s. 7.] VII. The acceptance of a bill of exchange. [^eepost, Book II. Chap. IX, and 19 & 20 Vict. c. 97, s. 6.J VIII. Agreements as to costs between solicitor and client. [33 & 34 Vict. c. 28, s. 4.] IX. Agreements between husband and wife that the wife* s pro- perty before marriage shall be held to her separate use. [See ante, p. 9, and 33 & 34 Vict. c. 93, s. 11.] X. Special contracts between pawnor and pawnee, where the loan is over 40*. [Pawnbrokers Act, 1872, 35 & 36 Vict. c. 93, s. 24.] 60 EXTBEIC OF THE COMMON LAW. CHAPTER XIY. OF TORTS GENERALLY, (a) § A TORT is an injury of which the law takes notice^ proximately resulting in damage capable of legal estimation. § A TORT CONSISTS OF I. A wrongful act. That is — 1- Either the infringement of a right, viz. : (i) The right of personal security, (ii) The right of personal liberty, {iii) The right of jiersonal character, (iv) The right of private property. 2- Or, the breach of a duty. II. Dam(i(/(\ That is — I- Either «^»M^ CONTRACTS FOR THE SALE OF GOODS. 55 § Sale oi' goods Bi' factors under ^^The Factors'' Acts/' ^^^ (/) ig) 1. Agents for s-a/e.to whom. (/ 00 ds are entrusted or consigned, can make a valid transfer of the same, even in fraud of their principals. Provided — (i) The vendee lias no notice that such agent has no authority to sell, (ii) The transaction is in the ordinary way of busi- ness, (f/) 2. Agents for sale, entrusted with, and having in their posses- sion, documents of title to goods, can make a valid transfer of the same, even in fraud of their principals. Providedihe vendee has no notice that the agent is not the real owner, [e) 3. Agents for 6't//e, entrusted with the possession of goods, or the documents of title to goods, can make a valid con- tract o^ pledge in fraud of their principals. Provided that tlie pledgee has no notice that the agent had no authority to pledge. (/) 4. (i) A vendor who retains, as against his vendee, possession of documents of title to the goods Avhicli have been sold by him ; or, (ii) A vender who has obtained possession of such documents, as against his vendor, can make a valid transfer or pledge of the same to a third party. Provided such second vendee, or the pledgee, has no notice of — (i) The previous sale ; or (ii) The vendor's lien, {g) I. An unconditional salk. is the transfer, for a price in money. {(T) G Geo. 4, c. 94, s. 4. (e) G Geo. 4, c. 94, s. 2. (/) 5 & 6 Vict. c. 39, ss. 1, 3. {g) 40 & 41 Vict. c. 39, ss. 3, 4. 56 EUBEIC OF THE COMMON LAW. o£ the right o£ property in specific chattels^ and o£ the attendant risk. § It is essential to an unconditional sale — 1 . That the specific goods be ascertained, 2. That the price be fixed. When these two matters are determined, the goods become the property of the vendee, and the loss is his, if they perish. f/lvs/rfifion. Baxter, on January 4th, 18.25, agreed to sell Tarling a stack of hay for £145, the hay to be left standing till the following May. It was so left in Baxter^s possession, and was burnt. The Court held, that the property in the hay had passed to Tarling, and the loss was his. («) II. A CONDITIONAL 8ALE is the iuchoatc transfer for a j)rice in money of the right of property in specific chattels, dependent on — 1 . The doing of some act by the vendor, which is to put the goods into a deliverable state. For example. Where Smith agrees to buy of Jones a set of chairs for £15, on condition that Jones first re-covers them, or 2. The weighing or measuring of goods by the vendor, upon the accomplishing of which the price will depend. Illustration. Hart, Logan & Co. sold to Le Mesurier, Eouth & Co. a raft of red pine timber, measuring 50,000 feet, more or less, then lying in the Ottawa river. It was to be paid for before delivery, at the rate of 9^d. per foot measured off. An allowance was to be made one way or the other, according as, when measured, it was found to consist of more or less than 50,000 feet, and it was to be delivered at Quebec. As soon as the timber arrived it was broken up by a storm, and a great part of it lost before it was mea- («) Tarlwfj V. Baxter, 6 B. & C. 360. CONTRACTS FOR THE SALE OP GOODS. 57 sured. Le Mesurier & Co.j having paid the price under the contract, sued to recover the same ; and it was hekl that they were entitled to do so, as the pro- perty in the timber had not passed to them before it was lost, the transfer of the title being conditional on the final measuring of the timber, wliich never took place, (b) or 3. The doing of some act by the vendee which is to be a con- dition precedent to his acquiring a right of property in the goods. Illustraiion.^ Alston bought certain sheep, on the terms that he should drive them home and depasture them for a certain time, and that the vendor during that time should pay him so much a week for their pasture. If Alston then should pay him the price of the sheep he was to have them. The vendor, before the agreed period expired, sold the sheep to Mires. Alston sold them to Marwood. In an action by ^lircs in trover for the sheep, it was held, that the property in the sheep had never passed to Alston, and that Mires had a good title to the sheep. {(■) § In these cases neitlier the right of property nor the risk pass to the vendee until the completion of the condition on which the transfer depends. § An agreement for a sale., There can be no sale, but only an agreement for a sale, when tlie goods are not speci- fically set apart. For example. Where Wilks agreed with Shuttlcworth & Co., to sell them twenty tons of oil out of the stock in his cisterns, it Avas held that there was no sa/e. (d) § But as soon as the specific goods have been selected, and appropriated, and the selection and appropriation assented {b) Loyan v. Le Mesurier, 6 Moore P. C. 116. (f) Mires v. Solehaij, 2 Mod. Rep. 243. (d) White v. Wilks, 5 Taiuit. 176. 58 EUBRIC OF THE COMMON LAW. to by both parties, the sale becomes complete, and tbe goods are at the veudees' risk. Illustration. Rohde & Co., agreed to sell Thwaites twenty hogsheads of sugar out of a quantity in bulk. Four hogsheads were filled, and delivered ; sixteen more were then filled up, and put aside for Thwaites, and notice was given to him to take them away, Avhich he agreed to do. It was held in an action by Eolide & Co. against Thwaites for not taking the remainder, that the sale had been com- pleted, and that the property had passed to the defen- dant, [a] § TJi.e appropriation may be — 1. The act of the vendee ; as when he makes the selection, and removes them. -. The act of the vendor, which will be the first active step he takes with reference to the goods in favour of the vendee, after he has selected them. Illustration. Aldridge agreed with Knight to purchase 100 quarters of barley at €2 ?>s. Od. per quarter, out of the bulk in Knight's granary; Aldridge to send sacks, and Knight to fill and despatch them. Aldridge accordingly sent to Knight 200 sacks, each of which would contain half a quarter of barley. Knight filled 155 of them, and applied to the rail- way for trucks for carrying them. The railway did not supply the trucks, and Knight emptied out the 155 sacks into the bulk of barley in his granary, and filed his petition in bankruptcy five days after. Aldridge sued Knight's assignees for the barley, and it was held, that the property had passed in the barley which had been filled into the 155 sacks, but not in any which had not been put into the remain- ing sacks, (b) (a) Kohde v. Thimites, 6 B. & 0. 388. {h) Aldridge v. Johnson, 26 L. J. Q. B. 296. CONTEACTS FOR THE SALE OF GOODS. 5^ The property in the goods, tliough they may be appropriated and despatched, may still be retained by the vendor. 1 . Either by express reservation, 2. Or by conduct showing an intention to make such a reservation. Illustration. Josse sold a quantity of coal, part of a heap in his yard, to Pope, for cash, to be shipped on board a vessel, chartered by Pope in his own name and on his own behalf to carry to London. Pope, before the coal was separated from the bulk, sold it to ]Moakes. Josse shipped the coal, and took three bills of lading, making it deliverable to Pope^s order. Only one of the bills of lading was stamped, and this Josse kept ; sending on the second with the invoice to Pope. Josse, being unable to get the price out of Pope, sent the stamped bill to Nicholson, his agent, who got posses- sion of the coal. Moakes sued Nicholson in trover for the coal, and it was held that Moakes had no better title than Pope, his vendor ; and that no title had passed to Pope from Josse, as the retention of the stamped bill of lading, was a clear indication of his intention to reserve his right of property in the coal, [c] § Delivkkv In the absence of any agreement to the contrary, the vendor will have done all that is required of him, when he has placed tlie goods at the disposal of the vendee. ■^ He must deliver neither more nor less than what has been pur- chased. Illustration. Mills ordered a dozen of wine of Hart. Four dozen were sent. It was held that Mills was entitled to send them all back, {il) (c) Muakes v. Nicholson, 34 L. J. C. P. 273. {(l) Hart v. Mills, 15 M. & W. 85. 60 EUBRIC OF THE COMMON LAW. § The vendee has a right of immediate possession. 1. If the goods are sold /or cash, on tender of the price. § lAen. Until tender of the price has been made^ the un- paid vendor has a right of lien over the goods ; that isj he may retain possession of them against the price. [Note. A right of lien gives the unpaid vendor no right to sell.] 2. If on credit, as soon as the bargain is struck, without reference to payment. The vendor^s right of lien being waived. Defeasible by the vendee becoming insolvent before he gets possession, when the vendor's right of lien revives, and is exercised by — (i) The vendor's refusal to jjart with the goods if they are still in his possession. Illustration. Sanders & Co. sold eiglit pockets of hops to Saxby at £7 \os. Od. The hops were not paid for. After a portion of them had been • delivered, Saxby became bankrupt. In an action in trover for the remainder of the hops by Saxby^s assignees, it was held, that Saxby's right of posses- sion to the undelivered portion of the hops was rescinded by his becoming insolvent. («) (ii) The vendor countermanding the deliver}^ order, if the goods are in the hands of his bailee. Provided The goods have not been resold, nor the sub-purchaser attorned to by the bailee. Illustration. Messrs. Smith & Co., by their agent, Alexander, warehoused certain sugars with Messrs. Little & Co., at Greenock. Smith & Co. sold the sugar to Bowie & Co., and gave them a deliverv order on Alexander. Bowie & Co. sold to Messrs. McEwan & Sons, who produced ((() Bloxam v. ISanders, 4 B. & C. 941. CONTRACTS FOR THE SALE OF GOODS. 61 to Alexander's clerk the original delivery order_, and received in exchange a slip with these words : — " Delivered to the order of Messrs. McEwau & Sons^ this date, 42 hogs- heads of sugar ex St. Mary. Jas. Alexander, per J. Adams." In the meantime Smith & Co., finding Bowie & Co. insolvent, ordered Alexander not to deliver the sugar, and he re- moved it to another warehouse. In an action by McEwan & Sons for the Sugar, the House of Lords held, that Alexander not being in possession of the goods had no authority to deal with them ; and, as Messrs. Little had never attorned to the plaintiffs, Smith & Co. retained their lien, (b) (iii) § The vendor countermanding the delivery order, when the goods are in the hands of his carrier ; upon wliich the goods revest in the vendor. § The right to counter-order the delivery in such a case is called " the right of stoppage in transitu." § The transit/Iff lasts until the whole of the goods come into the actual possession of the vendee, or of his agent for deposit, IUustratio7i. Crawshay & Co., delivered 348 bars of iron to Eades, a barge-owner, to carry to Hornblowcr at Stourbridge. Eades landed a part of the iron at Hornblower's wharf, and then, hearing he had absconded, delivered no more, and reshipped what had been landed. He then sold a portion of the iron to repay himself a debt due from Hornblowcr, and deliv(>rcd the residue to Hornblower's assig- (6) McEu-cm V. ^mith, 2 H. L. C. 309. 62 RFBKTC OF THE COMMON LAW. nees. In an action by Crawshay & Co. against Eades for converting the iron, it was held that they were entitled to recover, for the right to stop in transitu continued until delivery was completed, and the property in the iron had not passed to Hornhlower, but remained in Crawshay & Co. (a) (a) CmwsJiaii v. Ecfdes, 1 B. & C. 181. FEAUDULENT SALES OF CHATTELS. 63 CHAPTEK IT. FRAUDULENT SALES OF CHATTELS. § Fraudulent sales of chattels. § All sales of goods and chattels^ made with tlie inteution of hindering, delaying, or defrauding creditors, are fraudulent and void, as against the creditors, {b) § The question of fraud, or no fraud, is for the jury. § Chattels are frequently conveyed and mortgaged by bill of sale, and are left in the possession of the assignor. In conse- quence of which the latter obtains a fictitious credit, through being held out to the world, as owning what really belongs to another. The legislature, with the view of securing notoriety to all transfers of chattels, where the vendee does not at once remove his purchases, has passed the Bills of Sale Acts — • 17 & 18 Yict. c. 36. 29 & 30 Vict. c. 96. 41 k 42 Vict. c. 31. The first two of these statutes arc only in force in relation to bills of sale executed before January, 1879, as the 41 & 42 Vict, repeals them from that date. And bills of sale executed after January, 1879, are governed by the latter statute. § A BILL OF SALE uudcr thcsc Acts of Parliament is void as against trustees in bankruptcy and execution creditors. In cases where the chattels conveyed remain for more than (by the old Act twenty-one days), by the Act of 1878, seven days after the execution of the bill of sale in the possession, or apparent possession, of the assignor, (c) {h) 13 Eliz. c. 5 ; 29 Eliz. c. 5. ('•) 17 & 18 Yict. e. W ; 41 & 42 Vict. c. 31, s. 8. 64 EUBEIC OP THE COMMON LAW. Illustration. Coundon^ a seafaring maiij had some fur- niture at No. 5, Nelson Street^ Sunderland. He gave Robinson a bill of sale over it to secure an advance of £250, and went to sea. His wife then removed the furniture to two rooms in No. 12^ Ward Street^ and went to live Avitli her daughter-in-law. Goundou re- turned in two years time_, and joined his wife at the daughter-in-law's. Robinson demanded the furniture, and Goundou directed his wjfe to deliver to him the keys of No. 12, Ward Street. This was done, and Robinson locked up the house, but did not remove the furniture. Next day the sheriff put in an execu- tion on a judgment obtained against Goundou, and seized the furniture. The bill of sale was not regis- tered. It was held that the bill of sale did not require registration, as Goundou not being a de facto occupier of No. 12, Ward Street, the goods were not in his apparent possession. («) Unless — (i) Within (by the old Act twenty-one days), by the Act of 1878, seven days of such execution there be registered in the Queen's Bench — 1 . A true copy of the bill of sale, with its schedules and inventories annexed. (By the old Act the bill of sale, Src, itself.) 2. An affidavit declaring — {^■) The time of the execution of the bill of sale. '^(^•) Its due execution and attestation. [y) A description of the residence, and occu- pation of the assignor, and the attesting witness, [b) ^ [ This is only required under the Act of 1878.] («) Robinson v. Briggs, L. R. 6, Ex. 1, (6) 41 & 42 Yict. c. 31, s. lu, FRAUDULENT SALES OF CHATTELS. 65 (ii) The bill of sale be re-registered every five years. (iii) The bill of sale be attested by a solicitor, (c) (iv) The attestation states that, before execution, the attesting solicitor had explained to the grantor the effect of the bill of sale, (c) (v) The consideration is set forth in the bill of sale, {d) (c) 41 & 42 Vict. c. 31, s. 10. (r7) 41 & 42 Yict. c. 31, s. 11. 6(} IJUBRIG OP THE COMMON LAW. CHAPTER III. OF A SALE OF GOODS WITH A WARRANTY, ON A CONDrnON PRECEDENT, AND BY FRAUDU- LENT REPRESENTATIONS. I, A WARRANTY is a Collateral promise appended to a contract of sale, either — (i) Expressly, or (ii) Impliedly. § Failure of the warranty does not entitle the vendee to treat the sale as void, to return the thing bought, and demand back the price paid. He must keep his purchase, and l)ring his action for damages on the warranty. For instance. If Jones sells Smith ahorse, and warrants him sound, and the horse turns out to be spavined, the sale of the horse is a good sale. It is the collateral promise that he is sound which has been broken. Smith therefore cannot return the horse ; his remedy is on the warranty. 1. An express warranty is an assertion, in terms, of a fact, of which the purchaser is ignorant ; and is confined to that fact. Illustration. Gupp sold Dickenson a horse, and gave him a receipt in the following terms ; " Received £100 for a bay gelding got by ' Cheshire Cheese / warranted sound. ^■' This was held to be an express warranty as to his soundness only; and not as to his parent- age. («) 2. Ax IMPLIED WARRANTY is a.promisc, Avhicli, from the nature (a) DicJcenson v. Gu2)2t, quoted in Budd v. Fuirmaner, 8 Bing. 48. SALE OP GOODS WITH A WAKEANTY. 67 of the transaction^ the law imputes to the vendor, at the time of the contract of sale. (i) There is an implied warranty t/tat the goods are the vendor's, when he sells as oivner. Ilhistratiov. Eichholz went to the warehouse o£ Bannister, a " j oh- warehouseman/^ in Manchester, and bought and paid for certain pieces of print, which Bannister said were a job lot, just received by him. After the goods were delivered, it turned out they had been stolen, and had to be given up to the owner. In an action by Eichholz to recover the price, it was held that there had been an implied warranty of title, on the sale by Bannister, who by his conduct must be taken to have affirmed tliat the goods were his. {b) § Hut lohen he sells in any particnlar capacUy, other than oivner, [for instance, as sheriff, pawnbroker, or agent] he only warrants that he does not know of any defect in his avthorily to sell Tllns-trafion. One, Poley, hired a harp of ^Messrs. Chappell, and pledged it witli Attenborough. The latter in due course sold the harj) at auc- tion, as an unredeemed pledge to ]\Iorley. Subsequently Chappells claimed, and took the harp from ^Nlorlcy, who sued Attenborough for breach of warranty of title. It was held that all that Attenborough had undertaken was, that the harp was an irredeemable pledge, and tliat he was not cognizant of any defect of title in it. [c) (ii) There is an implied warranty, when the vendor gives a description of goods, and the vendee is not in a position to inspect them, that the goods are merchantable, and fairly answer the description given. Qj) Eichholz v. Bannister, 34 L. J. C. P. 105. (c) Morley v. Attenborough, 3 Ex. 500. f3 68 EUBRIC OF THE COMMON LAW. Illustration. Jones &*Co. of Liverpool purchased of Just a quantity" of Manilla hemp, to arrive from Singapore by certain ships. On delivery it was found that the hemp was damaged by salt water. It had not lost the character of hemp, but was un- merchantable. Jones & Co. sold the hemp at a loss of £25 per cent., and sued Just for the deficit. It was held, that there was an implied warranty on Just's part to supply INIauilla hemp of the quality of which the bales originally consisted, in a mer- chantable condition. («) (iii) When the vendor has notice that the article bought is to be used for a particular purpose, there is an implied warranty that it is fit for that purpose. Illustration. Edgington was a rope dealer. Brown sent to his shop for a crane-rope. Edgington^s foreman measured the crane, and was told that the rope was required for raising pipes of wine. A rope was supplied, but when in use, broke with the weight of one of the casks. In an action by Brown for the value of the wine, it was held that Edgington had warranted the rope to be fit for the purposes to which he knew it was to be put, and that he was liable, {b) /HcwA'V»W^'> )c<^h^4AA,'l\C 5y Unless the article sold is a knoivn, described, and defined article. Illustration. Chanter had invented and manu- factured a patent smoke consuming furnace. Hopkins ordered one for his brewery. When fixed, it was found not to suit his brewing copper. In an action by Chanter for the price of the ap- paratus, it was held that all Chanter had contracted (rt) Jones V. Jiiat, L. R. 3 Q. B. 197. {h) Brown v. Edgington, 2 Sc. N. R. 496. SALE OF GOODS WITH A WAREANTY. 69 to do was to supply one of his patent smoke con- suming furnaces ; that there was no warranty that it would consume smoke^ and that the defendant having got what he had contracted to buy was bound to pay for it. (c) (iv) Where the vendor manufactures an article for a specific purpose, there is an implied warranty that it is reason- ably fit for that purpose. Illustration. Newson was a coach-buikler. Randall ordered and bought of him a pole for his carriage. The pole broke, and the horses were injured. In an action by Randall for the value of the pole, and for the damage done to the horses, it Avas held that Newson must be taken to have warranted the pole, and was liable, although there v/as a latent defect in the pole, which he could not have discovered, {d) (v) There is an implied warranty in a sale by sample, that the bulk fairly corresponds with the sample. Illustration. Parker & Co. sold Palmer a quantity of East India rice. The contract contained the words ''per sample." Palmer subsequently refused to accept the rice, as after-drawn samples did not correspond with those originally taken. In an action l)y Parker & Co., it was held that in a sale by sample, the vendor warrants that the bulk shall answer to the description of a small parcel exhibited at the time of the sale, {e) (vi) There is NO implied warranty as to quality, but the maxim '' caveat emptor " [buyers beware) applies, where the vendee has an opportunity of inspectivff the goods, and buys on his own Judgment. (a.) Illustration. Mathews was a meat salesman in New- ((■) Chanter v. Hopkins, 4 ^f. & W. 399. {d) Randall v. Newson, 2 Q. B. D. 102. (c) Parker v. Valmcr, 4 B. & AW. 387. 70 EUBEIC OE THE COMMON LAW. gate Street. Emmerton, a butclier^ saw a carcase, which appeared to be good meat, exposed for sale, and bought it of him on his own inspection. When cooked, it turned out to be unfit for human food. In an action by Eramerton it was held that as he bought the meat on his own judgment, there was no implied warranty on Mathews^ part. («) (/^') Illustration. Parkinson, a hop-dealer, bought of Lee, another hop-dealer, five pockets of hops. The sale was by sample, with a warranty, that the bulk was up to sample, but with no further warranty as to the quality. On the hops turning out to have been fraudulently watered, (but not to the knowledge of Lee) and unsaleable, Parkinson sued Lee for a breach of an implied warranty of the quality of the hops ; but the court held that the plaintiff bought on his own judgment, and shoidd have required an express warranty if he intended to guard against a latent defect, and that there was no implied warranty in such a case, [b) 11. A (oNoiTioN vRKcEHKNi . A coutract of sale may depend on conditions, the due performance of which is incumbent on the vendor, before the liability of the vendee attaches. For eA'diiiplc. "VYhere Jones agrees to ship a cargo on board Smithes ship, provided the ship is alongside the wharf on a certain day. § Where a condition precedent remains unperformed, the vendee may repudiate.the whole contract, return the goods delivered under it, and sue for the price of them back again if paid. 1. Express conditmis precedent are where the parties have in terms stipulated that the contract shall depend on the existence or the happening of certain matters. (rt) Emmcrton v. MatItcW6, 31 L. -J. Ex. 139. (h) Parkinson v. Lee, 2 East, 314. SALE OF GOODS WITH A WAEEANTY. 71. Illustration. Bannermaii had some hops for sale. White iuquired of him whether sulphur had or had not been used in their growth ; and on being assured that it had not^ bought them. It afterwards appeared, that the hops, unknown to Bannerman, had been sulphured ; and White repudiated the contract. In an action by Bannerman for the price of the hops, it was held that White bought upon the terms that no sulphur had been used in dealing with the hops, and that this was a condition precedent to his being obliged to take them, (c) 2. Implied conditions precedent are those, which, from the nature of the case, the law imports into the contract. Illustration. Young was a stock broker, and was em- ployed by Cole to sell for him some Guatemala bonds. Young did so, and paid Cole the price, receiving delivery from Cole of four unstamped Guatemala bonds, which had been repudiated by the Guatemala govern- ment, and were valueless. Neither party knew that a stamp was necessary. Young, on discovering the nature of the bonds delivered, sued Cole for the price he had paid him ; and it was held that Cole was bound to refund it, as the contract being for the sale of real Guatemala bonds, the bonds delivered were worthless paper, and it is a condition precedent to every contract, that the thing delivered should correspond with the thing agreed to be sold, {d) III. Fraudulknt representations. (See also ante, p. 30, and post, Book III. Part VI. Chap. II.) A representation is a statement by one party made before, or at the time of the contract, by which the other party is induced to enter into the contract ; but which is not an integral i)art of the con- tract itself. ((•) Bannerman v. White, 31 L. J. C. P. :iH. ((/) Yoanij V. Cole, 3 Biiiy. X. C 724. 72 EUBRIO OP THE COMMON LAW. § The fact of a representation being untrue will not entitle the party influenced by it to avoid the contract. Illustration . Hopkins bought a horse named " California/' of Tanqueray at auction at Tattersall's. The day before the sale^ while Hopkins was examining the horse^ Tanqueray said to him^ " You have nothing to look to, I assure you he is perfectly sound in every respect." On which Hopkins replied_, " If you say so, I am perfectly satisfied ; " and examined the horse no further. The horse turned out to be unsound : but Tanqueray was not aware of this when he made the above representation. Hopkins sued Tanqueray to recover a loss on the resale of the horse. It was held that what was said by the defendant was a representa- tion, and no warranty ; and as he made it in ignorance of the fact, there was no fraud, and the plaintiff was not entitled to recover, (a) § If the representation be false to the knowledge of the PARTY MAKING IT, tkis IS fraud ; and the party induced to enter into a contract on the faith of such false represen- tation, is entitled at once to repudiate the contract, to return any goods delivered, and sue for any price paid under it ; if he can restore the goods to the defendant in the state in which they were delivered to him. lllustratioji. Atlierton's traveller sold to Udell a log of mahogany, and warranted it sound, knowing that it was defective. On cutting the log in two, the defect became apparent, and Udell brought his action against Atherton for deceit. The court held that the defendant was liable for the fraud of his agent, and that the plain- tiff would have been entitled to rescind the contract, had he not deprived himself, by cutting it in two, of the power to restore the log to the defendant in its original state, {b) [a) Hopldas v. Tanqueraij, 23 L. J. C. P. 162. {b) Udell v. Atherton, 30 L. J. Ex. 337 SALE OF GOODS WITH A WAERANTT. 73 § A sale " with all faults," will none the less be made on a fraudulent representation, if any contrivance has been resorted to, to conceal a defect. Illustration. Heath was owner of an unseaworthy vessel, whose hull was wormeaten, and keel broken. He removed her from the ways, where she lay dry, and kept her afloat in deep water, and then issued an advertisement for her sale,, which described her hull as being nearly as good as when launched, but said she was to be taken " with all faults." In an action by Schneider, the purchaser of the vessel, it was held that the defects in the vessel having been purposely con- cealed, the vendors were not protected by the stipula- tion that she was to be sold " with all faults," as that expression does not mean " with all frauds." (c) (c) Schneider v. Heath, 3 Camp. 508. 74 EUBKIO OF THE COMMON LAW. CHAPTER IV. CONTRACTS FOR WORK AND LABOUR. I. Master and servant. The contract between master and ser- vant is a mutual engagement, express or implied. 1 . On the part of the one, to employ and remunerate. 2. On the part of the other, to serve. § Where the service has been performed, in the absence of any express contract, the law presumes — 1, A hiring. 2. For reasonable or customary wages. Unless the service is done for some near relative, as by a son for his father, in which case the presumption is the other way. § Where annual wages are reserved, or the contract is for an indefinite time, the hiring is a yearly one. § Notice on eitlier side must be (i) reasonable, or (ii) custo- mary ; terminating Avith the current year of service, in analogy with notice under a yearly tenancy. (See post, Book II. Chap. X.) Illustration. Beeston was clerk to CoUyer, an army agent, and served him from March 1st, 1793, at a salary, paid quarterly, till December 23rd, 1826, when Collyer dismissed him. In an action by Beeston, it was held that the contract was a hiring for a Avhole year, and afterwards as long as the two should please, until the expiration of any current year from March the 1st. (a) 1^ The hiring of a domestic servant is an annual one, defeasible, (rt) Beeston v. Collijer, 4 Bing. 309. See idsoFunjan v. Bunrke, 12 Ir. C L. IL 495. CONTEACTS FOE WUEK AND LALOUE. 75 by custom^ by either party giving the other a mouth^^s wages or a month's warning. ■^ As lu tliL' tcriiiiiiatidii of cuiilracts of scrrlcc In the absence of any express agreement, either i^arty may terminate the contract by giving — 1. The customary notice^ or 2, In the absence of any custom, reasonable notice. § A MASTER MAV DISMISS HIS SERVANT WITHOUT NOTICK — - 1. For wilful disobedience to a lawful order. Illustration. Renno agreed with Bennet to serve as carpenter's mate, on a voyage to the Southern Ocean. During the voyage he mutinously refused to work the ship, except to an English port. Bennet put him ashore at Java, and discharged him. In an action by Renno for wrongful dismissal, it was held, that Bennet was justified in discharging him without notice, [b) ^. For gross moral misconduct. II lustra tion. Atkin, a clerk and traveller to Acton, hired by the year, assaulted Acton's maidservant, with intent to ravish her. In an action by Atkin for dis- missal without notice, the Court held, that Acton was justified in what he had done, (c) .'}. Habitual negligence, {(l) 4. Conduct calculated seriously to injure his mastei*^s business. Illustralion. Read, a journeyman carpenter, ^vas em- ployed by Dunsmorc, a master builder, on a job in a house of a gentleman named Trenchard. Dunsmore dismissed Read for poaching on ]\Ir. Trenchard's pre- mises. In an action by Read, it was held, that the master was justified in so doing, (e) (6) Renno v. Bennet, 3 Q. B. 7G8. (c) Atkin V. Adon, 4 C. & P. 208. (f?) Robinson v. Hinchaan, 3 Esp. 235 ; Callo v. Diijuuktr, 4 C &; P. 518. (e) Read v. Dunsmorc, 9 C. & P. 588. "7^ EUBRIC OF THE COMMON LAW. 5. Incompetence, (a) 6. Permanent illness, [b) § A CONTRACT or APPRENTICESHIP^ {appi'cnch'e , to learn) is where the master, being skilled in some handicraft, engages to teach the servant, as well as to employ and remunerate him. [As the apprentice is usually an infant, and, therefore, incapable of contracting, his parent, or some other interested jDcrson, usually enters into covenants with the master, that the apprentice will complete his service. ] § // may be dissolved — 1 . By cancellation of the indentures with the consent of all parties. 2. By the death of either party. 3. By the bankruptcy of the master ; in which case a por- tion of the premium may be returned, {c) 4. By an apprentice, through the act of God being inca- pacitated from continuing the service. Illustration. Firth became apprenticed to Boast, a chemist and druggist, and afterwards afflicted with a permanent illness. In an action by Boast for loss of services, it was held, that the non-performance of the contract by Firth was excused, as the parties must all along have had in contemplation the possibility of the defendant being permanently disabled by sickness, [d) T). By order of a court of summary jurisdiction, which has power to order the whole, or part of the premium paid to be refunded, (e) § It is not dissolved — 1 . By the apprentice falling sick. ((() Harnier v. Conidius, 28 L. J. C. P. 85. (h) Guckson v. Stones, 28 L. J. Q. B. 25. (c) 32 & 33 Vict. c. 71, s. 33. (rf) Boast V. Firth, L. R. 4 C. P. 1, (e) 38 & 39 Vict. c. 90, ss. 5, 6, 7, 12, 13. CONTEACTS FOR WORK AND LABOUR. 11 2. By either party^s misconduct. [ Though^ if tlie apprentice refuses to learn^ the master is absolved from his covenant to teach. (/)] § Powers of a court of summary jurisdiction in the case of apprentices. 1. A court of summary jurisdiction [that is^ a stipendary magistrate, justice of the peace, or mayor of a borough] has power to hear and determine disputes between masters and apprentices, where the premium paid is under £25. They may order— (i) The apprentice, under pain of fourteen days im- prisonment, to perform his duties ; or (ii) The instrument of apprenticeship to be cancelled and the whole or part of the premium to be repaid. {(/) 2. As to servants generally [other than domestic servants). The judge of a county court, or a court of summary jurisdiction, where the amount in dispute does not exceed €10, has power — (i) To hear and determine all kinds of claims and counter claims, (ii) To rescind, or order security to be given for the due performance of, contracts between employers and workmen, (r/) II. Contracts OF TASKWORK. (See ^jos/f, Bailments, locatio operis faciendi, post, Book II. Chap. V.) § In contracts of this character — 1. The employer furnishes the materials. 2. The employed contributes his labour. For example. Where Jones sends to Smith (a tailor) cloth to be made up into a coat. [Note. Where the employed provides the materials, as well as the labour, the contract is one of sale. (/) Raymond v. Minton, 1 Ex. 244. {g) 38 & 39 Vict. c. 90, ss. 5, 6, 12. 78 RUBEIO OF THE COMMON LAW. Illustration. Wliere Lee, a dentist, agreed to make Griffin a set of artificial teeth, the court held the contract to be one of sale, and not one of work and labour. («)] § The employer hnpUedly contracis. 1 , To supply the materials. xj To do nothing to mislead the employed, as to the work undertaken. 3. To accept the work when complete. 4. To pay the customary or reasonable hire. ^ T/ie employed impliedly contracts. 1 . To commence the work without delay. 2. To exercise reasonable care, skill, and diligence in the performance. ,'J. To follow the directions of the employer. 4. To complete the' work in a proper and workmanlike manner. § Unskilful work. If the employed does his work so unskil- fully, as to render it useless to the employer, he cannot demand payment for it. Illnstratioii. Duncan agreed with Blundell to erect a stove in BlundelPs shop, and to lay a tube under the floor, for the purpose of carrying off the smoke. Duncan did the work, but the plan was a failure, and the stove could not be used. In an action by Duncan, for work and labour, it was held that, as the employer derived no benefit from what was done, the plaintiff was not entitled to recover, {b) § The employed has a lien on the material for the work which he has bestowed on it. But no right of sale. § Where a special contract remains uncompleted, no action will lie in respect of work and labour expended in ITS PART PERFORMANCE (or what is Called on a " quantum meruit.") (a) Lee v. Griffin, 30 L. J. Q. B. 252. (h) Duncan v. Blundell, 3 Starkie, 6. CONTEAOTS FOE WOEK AXD LABOUE. 79 Illustrations, («•) Oue Cutter, a sailor, A^as engaged by Powell, tlie master of the " Governor Parry/' on a voyage from Jamaica to Liverpool, for a lump sum of thirty guineas, provided lie "proceeded, continued, and did his duty, as second mate, till the end of the voyage." Cutter died on the voyage, and his personal representative sued Powell for the amount of wages earned up to the day of Cutter's death. It was held that he could neither recover on the special contract, as that had never been performed ; nor on a quantum meruit, for the parties having entered into an express contract, the law would not imply any other, {c) (/3.) Appleby & Co. agreed to erect certain machinery on Myers' premises, at specific prices for particular por- tions, and to keep it in repair for two years, the price to be paid on completion of the whole. After some portion of the work was finished, the premises, machinery, and materials were destroyed by an acci- dental fire. In an action by Appleby & Co. for the price of what they had completed, it was held that, as the special contract remained unperformed, they were not entitled to recover anytliing in respect of the por- tion of the work which had been executed, {d) § Exceptions. 1. Where the work is in its nature divisible and apportion - able, and there is nothing in the contract itself to the contrary, the right of remuneration accrues to the em- ployed, as the work proceeds. Illustration. Roberts, a shipwright, engaged to put a ship of Havelock's into thorough repair. Before the job was finished, llobcrts demanded payment for A>liat was complete, and was refused. In an action by Roberts for the price of the labour and (c) Cutter V. Pon-dl, 6 T. R. 320, (r?) Aiiplchij V. Mijcrs, L. K. 2 C. P. 651. 80 EUBRIC OP THE COMMON LAW. materials already expended by liinij it was held that he was entitled to recover^ notwithstanding that his contract was unperformed, (a) 2. Where work has been done wider the special contract, but not in accordance with it, and the other party has derived any benefit therefrom, a new promise is implied on the part of the latter to remunerate in proportion to the benefit he has received. Illustration, Darthez & Co. chartered a vessel of Mitchellj from London to Buenos Ayres, there to deliver her cargo^ reload^ and proceed to a port hetM'een Gibraltar and Antwerp ; freight for voyage out and home £1^300, £200 to be paid in London on sailing, the remainder on final delivery of home- Avard cargo. The ship proceeded to Buenos Ayres, delivered her cargo there, and sailed thence with a cargo of hides, consigned by Darthez & Co. for Gibraltar. At Fayal the ship and about one-third of the hides were lost. The vice-consul there, act- ing for Darthez & Co., transmitted the residue by another vessel to Darthez & Co.^s consignee at Gibraltar, where they were accepted. In an action by Mitchell for the whole freight, it was held that he could not recover the £1,300, as he had not performed his contract; but that Darthez & Co. had accepted the hides at Fayal, and conveyed them on their own account to Gibraltar, and were liable to pay freight for the portion of the voyage terminating at Fayal, on a new implied contract to remunerate Mitchell for the service, of which they had received the benefit, (b) 3. Where one party has, either — (i) Absolutely refused ; or, (a) Roherts v. Havelock, 3 B. & Ad. 404. (b) Mitchell v. Darthez, 2 Bing. N.C. 555. CONTRACTS FOR WOEK AND LABOUR 81 (ii) Rendered himself uriable to perform, a special contract ; Tketij the other party may elect, either — (i) To sue at once for- the breach of such special con- tract ; or, . (ii) To treat it as rescinded, and sue on a quantum meruit for what has- been performed. Illustrations. ("•) Hoclister, a . courier^ agreed with De la Tour to euter his service on the 1st of June then next, at the rate of £10 a month. On May 11th, De La Tour gave notice that he should not carry out the engagement ; and on May 22nd Hochster brought an action for breach of contract. It was held, that he was entitled to do so. (c) [f^] Colburn & Co. engaged Planche to write an article on ancient armour for their publication the " Juvenile Library .^^ Planche made a journey to inspect a collection of armour, and made drawings thereof, and wrote part of his work. Colburn & Co., however, in the mean- time, found the " Juvenile Library " a failure, and put an end to its existence. Planche sued them on a " quantum meruit." It was held, that the defendants had incapacitated themselves from performing their contract, and that the plaintiff was right in treating it as abandoned, and in suing for the work he had done, [d) (c) Hochster v. T)e hi Tour, 2 E. & B. 678. ((7) Phinchf' v. CnJhimi, 8 Bing. 14. 82 EUBRIO OF THE COMMON LAW. CHAPTER V. BAILMENTS. § A BAILMENT is a delivering {hailler to deliver) of a ctattel to another, for the pnrjtose of its being dealt with in some way by that other, either gratuitously, or for reward. For instance. If Jones sends his horse to Smith to be shod, that is a bailment of the horse to Smith for the purpose of the horse having his shoes nailed on. § Bailments are of different kinds and may be classed as follows : I. Those for the benefit of the bailor. (i) Depositum. This is where the bailor deposits a chattel with the bailee to be kept by him, gratuit- ously, for the bailor. For example. A^'here Jones, while he is on the continent, leaves his plate at his bankers, who make him no charge. (ii) Mandatum. Where the bailor delivers a chattel to the bailee, who is to take some active step with regard to it, gratis. For example. Where Jones hands his watch to Smith, for Smith to take it to a watchmaker for him, without charge. II. Those for the benefit of the bailee. (i) Commodatum. This is where the bailor, gratuitously, lends a chattel to the bailee, to be used by him and returned. For example. Where Jones lends Smith a dog, or a gun, or a toasting fork, and Smith is to return to him the identical dog, or gun, or toasting fork. (ii) Mutuum. Where the bailor, gratuitously, lends the BAILMENTS. 83 bailee a chattel for consumption by liim^ and one of like nature is to be returned to the bailor. For example, Where Jones lends Smith a dozen of champagne^ which Smith is to consume^ and Smith is to return another dozen of a like des- cription. III. Those for the benefit of both bailor and bailee. (i) Vadium, Where the bailor gives the bailee an article in pawn. [This is the bailment of a chattel, as a collateral security for the performance of an engagement, with an implied promise of restoration of the chattel, on the performance of the engagement. ' (ii) Locatio rei. Where the bailor lets a chattel for hire, (iii) Locatio operis faciendi. Where the bailor delivers a chattel to the bailee. 1 . To be kept, 2. To ])c carried, 3. To have work performed upon it, by the bailee for a reward to be paid to him. For example. Where Jones sends materials to Smith, and Smitli is, for a price, to make them into a coat for Jones. § DUTIES AND LIABILITIES OF A BAILOR, AND A BAILEE IN TH K CASE OF I. Depositum and Mandatum. 1 . The chattel must not be used by the bailee for his own benefit, otherwise the contract becomes one of " commodatiiin." 2. Tlie bailee has no lien on the chattel for any expenses he may have been put to in regard to it. 3. The bailee is bound to take such care of the chattel, as a reasonable man would take of liis own ; and is liable iorffross negligence only. (See jwst, Book III. Part TV. Chap. II.) g2 84 EUBEIC OF THE COMMON LAW. 4. The risk of loss^ except from gross negligence, remains with the bailor. II. 1. Commodatum. (i) The risk of loss_, except from negligence, remains with the bailor, (ii) The bailee is bound to take the utmost care of the chattel, and is liable for the least negli- gence. {Seepost, Book III.PartIV.Chap.il.) 2. Mutmtrn. The risk of loss passes to the bailee. III. Vadium. 1. The chattel may be used by the pledgee, if it is of such a character, as not to become the worse for wear; but this will be at the pledgee^s risk in case loss should result. 2. There is an implied m arranty of title on the part of the pledgor, [a) 3. There is an implied promise on the part of the pledgee to return the pledge as soon as the object of the pledging has been accomplished. («) 4. The pledgee is bound to take such care of the chattel as a reasonable man would take of his own; and is only liable for ordinary negligence. [See post, Book III. Part lY. Chap. II.] 5. If the time for redemption is fixed, it cannot be cur- tailed by either party. 6. The chattel may be sold by the pledgee on default made by the pledgor, where the time for redemption is fixed ; and where it is not fixed, at any time after notice to the jjledgor. [b) 7. On the sale of the chattel, the pledgee must account to the pledgor for the balance, if any, beyond the amount for which the pledge was collateral security. (a) Cheeseman v. Exall, 6 Ex. 344. \h) Pirjot V. CuhJey, 1.5 C. B. N. S. 701. BAILMENTS. ■ 85 8. The risk of loss^ except from iicgligeucej remains with the pledgor. [The law relating to pledges taken by pawnbrokers^ where the amount advanced is £10 and under^ is now governed by the Pawnbroker's Act, 1872. (c)] IV. Locatio rei. 1. If the chattel is let for any particular purpose, the bailor warrants that it is reasonably fit for that purpose ; but does not warrant against any latent defect undiscoverable by reasonable ex- amination. llluslruiWH. Cockrellj and certain other gentle- men, were stewards of the Cheltenham steeple- chases. He contracted with a competent builder to erect a stand, to which the public were to be admitted to see the races at ^s. per head. The builder constructed the stand improperly, not to CockrelPs knowledge, but, still, so that a compe- tent surveyor would have discovered the defect. When the race meeting was held, the stand gave way, and Francis, who was upon it as a spectator, was injured. In an action by Francis, it was held, that Cockrell was liable, as the contract between him and the public was, that the stand was reasonably fit for the purpose for which it was built and that due care had been exercised in its construction, [d) "Z. The bailee of a chattel, let to him for hire, is bound to use it in a proper and reasonable manner. 3. And to restore it within a reasonable time, in the same condition in which he received it, reason- able wear and tear being allowed for. 4. The bailee is bound to take such care of the chattel ('•) •.^:^ & 3G Vict. c. 03. {d) Francis v. Oockrdl, L. R. 5 Q. B. oOl. 86 RgBKlO OF THE COxMMON LAW. as a reasonable man would of liis own^ and is only liable for ordinary negligence. (See post, Book III. Part IV. Cbap. II.) Illustration. Keate hired a pair of coaclihorses from Deane. On one of them being taken slightly ill^ he prescribed for^ and treated it^ himself. The horse, in consequence died. In an action by Deane for the value of the horse, it was held, that Keate was liable, as he had not exercised that degree of care, which might be expected from a prudent man towards his own horse, {a) 5. The risk of loss (except from negligence) remains with the bailor. V. Locatio operis faciendi^- 1 . The bailee is bound to take such care of the chattel as a reasonable man would take of his own ; and is only liable for ordinary negligence. {See post, Book III. Part IV. Chap. II.) Illustration. Searle left two carriages in charge of Laverick, a liverystable keeper, who put them into a recently erected shed. The shed, which had been built for him by a competent builder, was blown down, and the carriages injured. In an action by Searle for the damage done to the carriages, evidence that the shed had been unskilfully built was rejected, and the plaintiff was nonsuited. The Court held the nonsuit right, as the defendant was only bound to exer- cise such care in keei)ing the carriages as would be taken by an ordinarily careful man. [h] 2. The risk of loss (except in the case of negligence) remains with the bailor. (") Deane v. Keate, 3 Camii. 4. (6) i^eark v. Lacerid; L. E. 9 Q. B. 122. BAILMENTS. 87 Except, Iu the case of — 1 , Inn keepers ; 2 . Common carriers ; who are lickl to be ''Insurers/' and to guarantee the safety of goods entrusted to them^ in any event. Unless the loss arises from — (i) The act of God ; (ii) The Queen's enemies ; (iii) Contributory negligence on the part of the bailor. (See post, Book III. Part IV. Chap. I.) (iv) Inherent vice in the chattel itself. Illustration. Smith was secretary to a line of steamers running between Lon- don and Aberdeen. Nugent shipped a mare on board one of such steamers. During the voyage the weather was roughs and partly from this cause and partly from the mare herself becoming frightened and struggling, and without any negligence on the part of the ship- owner's servants, the mare was injured, and subsequently died. In an action by Nugent for the value of the mare, it was held, that a common carrier does not insure against the irresistible force of nature, or against defects in the thing itself carried, (c) [Innkdepers.] ■^ The liability of innkeepers is riirthcr limited by the " Innkeepers Act, 1863," {d) which provides that— § An innkeejjcr /.■< on/!/ /"^I'l<' 1'> the (t/nount of £S0 for the (c) Nugent v. Smith, 1 G. V. D. 423. (cl) 26 & 27 Vict. c. 41. 88 EUBEIC OF THE COMMON LAW. goods of a guestj which have been brought upon the premises. Unless — 1. The goods shall have been " stolen, lost^ or injured through the wilful act, default, or neglect, of the innkeeper or his servants," 'Z. The goods have been deposited with him expressly for their safe custody. '6. He has failed to exhibit in the entrance hall of his inn a copy of the first section of the Innkeepers Act, 1863, Illustration. Bacon kept the "Old Ship Inn" at Brighton, and posted in his hall a copy of the first section, from which the word " act " was accidently omitted, and the sentence ran, " wilful default or neglect," instead of " wilful act, default, or neglect." Sj)ice occupied a bedroom in the inn; and his watch, riugs, and purse were stolen during the night. In an action by Spice for their full value, £119, it was held, that Bacon was not protected by the statute, since he had failed to exhibit a copy of a material portion of its first section as required, (a) § An innkeeper has a lien for his charges on all goods brought to the inn by the guest, § lie may sell the same to discharge the debt of the guest after the expiry of six Aveeks, and after a month^s notice of the intended sa^e has been given in certain newspapers {b). [Common Cauriers.] ^ Common Carriers, Persons who undertake to transport passengers or goods from one fixed place to another, for hire, either by land or water, (a) Spice v. Bacon, 2 Ex. D. 463 ; 26 & 27 Vict. c. 41, s. 1. (5) The Innkeeper Act, 1878, 41 & 42 Vict. c. 38. BAILMENTS. 89 [NoTK. Carriers were held, at commou law, to be re- sponsible for the safety of the goods entrusted to them, (subject to the exceptions above referred to on p. 87) by reason of their having greater facilities than other bailees for combining with thieves to the prejudice of the public. This was a A'cry onerous liability, and a practice grew up among the carriers, of insisting on the parties, for whom they were to carry goods, enter- ing into a special agreement limiting the risk, or paying a proportionately increased freight. Notices were posted up by them in their receiving offices, which were held by the courts, if brought to the knowledge of the consignor, to be incorporated in the ordinary contract to carry ; though the carriers were still liable for gross negligence. In consequence of the fre- quency of the disputes which arose upon the question of the consignor having a knowledge of the notice, the legislature passed the " Land Carriers Act, 1830," which limited the carriers' liability to the amount of cfilO upon various descriptions of goods, unless their value was declared, and an increased charge paid on account of them. The right to make special contracts was not, however, intci-fcrcd with. As time went on, the railways and canals gradually obtained a monopoly of the carrying trade, and by insisting on taking goods only on the terms of special contracts, were in a fair way to emancipate themselves from all risk of loss, even Avhen it arose from their own gross negligence. The legislature accordingly stepped in again, and passed the "Railway and Canal Traffic Act, i854," which prohibits the companies from avoiding their lia- bility by means of notices and conditions, but allows them to make special contracts, which are just and reasonable in the opinion of the courts, provided they are in writing, and signed by the consignor. It also limits their liabilitv on the carriage of various ani- 90 KUBIUG OF THE COMMON LAW. mals^ unless their value is declared^ and a higher freight paid.j § Rights and liabilities of common carriers, 1. A common carrier is bound to receive all such goods^ as he professes to carry, on the proper charge being tendered. 2. He is bound to use reasonable despatch. 3. The carrier impliedly promises that he will provide con- veyances reasonably fit for the purpose, to which they are put, and servants of competent skill. 4. He has a lien on the goods conveyed, for the freight of those goods ; but not for a general balance due toJiiaa. 5. In the absence of any special agreement, the carrier is liable for the due performance of his contract to the consignee, and not the consignor; unless the right of property, and the risk remain with the consignor. For instance. If Jones sells Smith a hogshead of ale at Is. 6d. a gallon, and delivers it to a carrier to convey to Smith, he is acting as Smithes agent in so delivering it ; and Smith, in the event of the ale being lost, will be the party to sue the carrier. But if Jones sends Smith by carrier fifty pairs of boots " on sale or return," and the boots are lost on the road, the pro- perty in them remains with Jones, and he is the party to sue the carrier. ^, A common carrier is not bound to carry live animals, and may decline to receive them, except under a special contract, (a) 7. He is not bound to convey dangerous goods ; and the transport of certain dangerous articles is regulated by the "Explosives Act, 1875.'' {b) 8. He cannot refuse to receive packages on the ground of a refusal to give information as to their contents, {c) 9= Railway companies are not common carriers of passengers ; («) Harrison v. L. B. d: S. Cuast Ey. Co., 31 L. J. g. 15. 113. (b) 38 Vict. c. 17. (c) Crouch V. L. cO N. IF. Rij. Co., 7 Ex. 705. BAILMENTS. 91 and do not Avarraut tlieir safe couveyauce at all eveuts ; but are liable for the least negligence, [d) 10. A railway company in virtue of the iDrivate statute by wliicli it is incorporated, is made a common carrier of the personal luggage of passengers ; and is liable for its safe delivery, unless the passenger takes it under his own immediate control. Illustration. Bergheim travelling to Yarmouth by the Great Eastern Railway, directed a porter on the plat- form, where the train was drawn up, to put a valuable dressing-bag into the compartment in which he, Berg- heim, was about to travel, while he went to the refresh- ment room. The porter did as he was ordered, and locked the door of the carriage. On Bergheim's re- turning and entering the carriage it was discovered that the bag had been stolen. In an action by Berg- heim for the value of the bag, the jury found that there had been no negligence on either side ; and the court held that the company were not insurers of luggage placed, at the traveller's request, in the com- partment in which he was himself to be carried, (e) 11. Coflmon carriers, by land, are not liable to a greater extent than £J.O on the loss of the following goods. (/) Unless — (i) Their value has been declared, at the time the goods arc received from the consignor. (ii) A proportionately increased charge is paid for freight. {(/) (d) Redhead v. The Midland Ry. Co., L. R. 4 Q. B. 383. (e) Beryheim v. Gt. E. Ry. Co., 3 C. P. D. 221. (/) Gold or silver coin ; gold or silver, whether in a manufactured .state, or no ; precious stones, jewelry ,watches, clocks, tinie-piece.s, trinkets, hills, hank- notes; orders, notes, or securities for the payment of money; stam2)s, maps, writings, title deeds, paintings, engravings, pictures, gold or silver plate, or plated articles, glass, china, silks in a manufactured state, or not, furs, lace. ((/) The Carriers Act, 1830, 1 Will. 4, c. 68. 92 RUBEIG OE THE COMMON LAW. 12. Every railway and canal company is liable for any damage caused by the neglect, or default, of their servants, in receiving, forwarding, and delivering, animals, and goods, notwithstanding any notice or condition to the contrary which they may have made. They are not however liable for damage done to a horse, or neat cattle, or sheep and pig, to a greater extent than .£50^ £15, and £2 per head, respectively. Unless — (i) Their higher value has been declared at the time the goods are received from the consignor. (ii) An additional charge is paid in respect of the greater value. They may make a special contract with the consignor. Provided — (i) It is just and reasonable. (ii) It is in writing, (iii) It is signed by the consignor, (a) [NoTJi. It has been held that the " reasonable con- dition," and the " special contract in writing '' mentioned in the 7th section of the Railway and Canal Traffic Act are synonymous, {b) ] 13. Where goods have been stolen by the servants of the carrier, he is not protected by the " Carriers Act, 1830." (c) 11. Carriers by water, can limit their liability (except where the loss arises from their own negligence) by a special I contract, such as the clauses in a charter party or a bill of lading, wdiich provide against loss by fire, dangers and accidents of the seas, rivers, navigation, &c. 15. The owner of a seagoing ship is not liable for damage, happening without his fault. {ii) The Eailway and Canal TialHc Act, 1»54. 17 .^ is N'iL-t. c 31. {b) 17 & 18 Vict. c. 31, s. 7 ; Peek v. N. Staffordshire Hy. Co., 8 H. L. C. 473. (c) 1 Will. 4, c. fiS, s. 8. BAILMENTS. 93 (i) For goods damaged by fire on board his ship. (ii) For any gold, silver, watches, jewels, or precious stones, stolen, or embezzled, on board his ship. Unless the shipper has, at the time of loading, declared their value in writing, {d) 16. A shipowner is not liable for damage happening without his fault, to (i) person or (ii) property on board his ship to a greater extent than €15 and .€8, respectively, for every ton of the ship's registered tonnage, (e) 17. Carriers by land and sea jointly, by publishing in their booking-office, and printing on the back of their receipt, or freight-note, a notice to the effect that they will not be responsible for damage caused by fire or accident to animals and goods carried by sea, may limit their liability in that respect. (/) 18. Kailway companies are bound to make the same charge for carriage to all parties without favour. {(/) 19. A railway company, which forwards goods by other lines beyond its own limits, and receives an entire payment for the whole journey, is liable to the consignee, though the goods are lost wlien in the custody of the other com- pany. Illustration. Goods were delivered at Bath to the Great Western Railway Company, who received the freight for the whole journey, to be carried to Collins at Torquay. The line of the (ireat AYestcrn Railway ended at Bristol, where the goods had to be transferred to the Bristol and Exeter Railway Company ; while under the care of the Bristol and Exeter Railway Com- l)any the goods were destroyed by fire. In an action against the Bristol and Exeter Railway Company by (d) Merchant Shipping Act, 1854, 17 &.18 Vict. c. 104, s. 503. (e) :\Ierchant Sliiiiping Amenclnient Act, 1R62, 25 & 26 Vict.c. 63, s. 54. (/) Regulation of Railways Act, 31 & 32 Vi.t. c. 119, s. 14. (fl) S& 9 Vict. c. 20,> 90. 94 EUBEIO OF THE COMMON LAW. Collins for the value, it was held that the contract had been made with the Great Western Railway Company, and that the Bristol and Exeter Railway Company were not liable, (a) 20. At the end of the transit the carrier is bound to keep the goods a reasonable time for the consignee to claim them in, during which time his liability as an insurer continues. After a reasonable time this extraordinary liability ceases, and he becomes a mere bailee of the goods for hire. Jllustration, Heugh & Co., acting on an order supposed to come from the Southwark India-rubber Company, but really sent fraudulently by one Nurse, a former traveller of the company, consigned certain goods by the London and North Western Railway Company to the India-rubber Company. The railway company having tendered the goods at the premises of the India-rubber Company, where they were refused, took back the goods to the station, and sent an advice- note to the India-rubber Company asking for instruc- tions. Nurse called two days after with the advice-note, and a forged delivery order, and the railway company delivered the goods to him. In an action by Heugh & Co., against the railway company, it was held that the railway company at the time of the delivery to Nurse, had ceased to be carriers, and had become in- voluntary bailees of the goods, and were only bound to act with ordinary care, and that Heugh & Co. could not recover, {b) (a) Collins v. TU B. cO E. By. C, 7 H. L. C. 194. (&) Heugh v. L. d- N. IF. By. Co., L. P. 5 Ex. 51. OF COKTEACTS OF INDEMNITY. 95 CHAPTEE VI. OF CONTRACTS OF INDEMNITY. I. Guaranties. § A GUARANTiE is a promise to answer for tlie debt^ default^ or miscarriage of auotlierj who is himself primarily liable. For example. Where Jones promises that if Smith will give Robinson credit he will pay Smithes account against Robinson^ if Robinson fails to do so. § Its essentials — ■ 1. It must be in writinff and signed by the party to be bounds or there must be a sufficient memorandum of it to satisfy the Statute of Fi-auds. (c) [See ante, pp. 41^ 46^ 47.] But the consideration need not appear on the face of the guarantie. [d) [See ante, p. 46.] 2. The third party (the principal) must he primarily liable. Illustration. Gammon^ in consideration that Bird and certain other creditors of one Lloyd^ should give up their claims against Lloyd^ and that Lloyd^s farm should be assigned to Gammon^ promised to Bird the amount due to him. Bird sued Gammon for the amount,, alleging a guarantie on Gammon's part to pay Lloyd's debt. But the court held that he could not recover^ as Lloyd having ceased to be liable. Gam- mon's promise was not one to pay the debt of a third party, (e) (r) 29 Carl. 2, c. .3, s. 4. {il) 19 & 20 Vict. c. 97, s. 3. (e) Bird v. Gammon, 3 Bing. N. C. 883. 9G EUBEIC OF THE COMMON LAW. 8. Tlie debt; or act^ for which the gnarantie is given, must be 2i future and not a past transaction. Illustration. Welch and Adams gave the London and Provincial Bank a letter, in which they promised to indemnify the bank to the extent of <£ 1,000 advanced, or to be advanced, to one Pinney. At that time Pinney was indebted to the bank to the amount of upwards of jS 1,400. In an action by the bank on this letter, it was held that the sum already advanced amounted to more than the sum which the letter guaranteed; and the indemnifi- cation, therefore, being for a past consideration, no action would lie. {a) 4. An offer of a guarantie must be accepted, before it becomes binding on the guarantor. Illustration. Tinkler directed the following letter to Mozley & Son, publishers : — " Gentlemen, Mr. France informs me you are about publishing an arithmetic for him and another person, and I have no objection to being answerable as far as ^650." This letter was sent to Mr. Mozley, who, without communicating with Tinkler, proceeded Avith the publishing. In an action by Mozley & Son against Tinkler on the letter, the court held that it was only a proposal; which required au answer; and as the plaintiffs had not communicated their acceptance to the defendant no action could be sustained, {b) § Rights and liabilities of the surety. 1. The surety is discharged, if loithout his consent. (i) The original contract is materially altered, or a new contract is substituted for it. Illustration. Harrison agreed with Smurthwaite to («) Bell V. Welch, 9 C. B. 154. (6) Mozley v. Tinlder, 1 C. M. & E. 692, OF CONTRACTS OF TXDEMXITT. 97 purchase of him an uufinished ship called the ^^ Devonport/^ for the price of £14^750^ and an old ship of Harrison^s to be taken in exchange called the " Lord Dalhousie " ; and also^ that Siuurtliwaite should finish the '^ Devonport " within two weeks of her arriving in London^ and repair the '' Lord Dalhousie/'' and procure her to be classed A 1 at Lloyds for eight years^ Harri- son advancing the sum of £6,000 to Smurth- waite on mortgage of the " Lord Dalhousie." Seymour gave Harrison his bond as surety to Smurthwaite, conditioned to be void, if Smurth- waite repaired the " Lord Dalhousie " forthwitli, and finished the ^^Devonport" within the two weeks in the fashion agreed upon. Afterwards Harrison and Smurthwaite made another agree- ment, without the knowledge of Seymour, whereby the time for the completion of the " Devonport " was shortened, and additional work was to be done to her. In an action by Harrison against Seymour on the bond, Smurthwaite having made default, it was held, that, as far as concerned the " Lord Dalhousie," the defendant was liable ; but as the contract in respect of the " Devonport " had been materially altered behind his back, he was absolved as to that part of his liability, [c) (ii) The creditor by a binding contract enlarges the time for payment by the principal. Illustralions. (a) The Croydon Gas Company con- tracted with Dickinson to supply him with aramo- niacal liquor, payment to be made monthly, and within the first fourteen days of each month. Pollard & Child Avere sureties for Dickinson that (f) mnrmrn y. Seymour. L. K. 1 V. P. 518. H 98 RUBRIC OP THE COMMON LAW. he would pay wliat from time to time became due to the gas company. After the first fourteen days of August, 1875, the company took a pro- missory note from Dickinson for tlie amount due for July. Dickinson made default in payment of the amounts due for July, August, and September. In an action by the company against the sureties, it was held that, as they had given Dickinson fur- ther credit by taking his promissory note for the amount- due in July, the sureties Avere absolved as to that payment, though not as to those due in August and September. («) (/i.) Coombe & Delafield were brewers, and supplied one Joseph with porter, on a guarantie from Woolf. On December 1, 1829, there was £45 due from Joseph. Coombe & Delafield applied for payment in June and August, 1830, and, failing to get paid, they, in October, took Joseph's promissory note for the amount, at two months. In November, Joseph became bankrupt, and Coombe and Dela- field sued Woolf on the guarantie. It was held that as they had disabled themselves from suing Joseph immediately, by taking his note at tAvo months, time had been given him by a binding contract, and the surety was discharged, (b) 2. The surety may, when his promise is not made wider seal, at any time after notice to that effect, revoke his promise, and discharge his own liability in future. Illnsitrnt'ion. Davies & Son guaranteed the payment by Davies & Co., of Newtown, of all bills Offord should discount for Davies & Co., of Newtown, for the space of twelve months. Before the end of the twelve (rt) Croydon Gas Gompan\i y. Didcinson, 2 C. P. D. 46. {})) Coombe v. JFoolf, 8 Biiig. 156. . OF COXTEACTS OP INDEMNITY. 99 months, Duvies & Co. revoked their guarantie by notice. In an action by Offord on the guarantie for non-payment by Davies & Co., of Newtown, of bills discounted by him after the date of the notice, it was held that the revocation was good, and that he was not entitled to recover, (c) 3. As soon as the principal has made default, the surety may step in, pay the debt, and sue the principalin the creditors name. Illustration. Williams, J., says, in Strong v. Foster, *^^What I understand by a giving of time is this. The surety has a right at any moment to go to the creditor and say, '1 have reason to suspect the principal debtor to be insolvent, therefore / shall call upon you to sue him, or permit me to sue Mm.' If the creditor has voluntarily placed himself in such a position as to be compelled to say he cannot sue him, he thereby dis- charges the surety .■'■' [d) 4. It is the surety's duty to see that the principal fulfils his engagements ; and there is no obligation of active diligence against the principal on the creditor's part. Illustration. Goring, in April, 18.25, sold certain timber to Edmonds, junior, on a guarantie being given by Edmonds, senior, that the son would pay. Goring received part payment from the son, and made re- peated unsuccessful applications to him for the residue till December, 1827, when the son became bankrupt. Goring never disclosed the result of these applications to the father, but sued him on the guarantie. It was held that Edmonds, senior, was not discharged by the time that had elapsed, nor by want of notice of the failure to obtain payment from the son. (e) (c) Offord v. navies, 31 L. J. C. P. 319. Coulthart v. Clementson, 5 Q. B. D. 42. ((?) Strong v. Foster, 17 (.,'. B. 219. (e) Gorimj v. Edmonds, 6 Biug. 94. H 2 100 RUBEIC OP THE COMMON LAW, 5. If the principal has made default, the creditor may, by a binding contract give him time and reserve all remedies against tlie surety. Jihistration. William Brown, as principal, and George Hopps, as surety, entered into a bond with the "York Cit}^ and County Banking Compau}'^/' to secure Brown's banking account. Subsequently the bank covenanted by a deed poll not to sue Brown, reserving their rights against Hopps. In an action by the bank against the execiitors o£ Hopps, it was held, that the effect of this deed was to allow the surety to retain all his rights against the principal debtor ; and that the covenant not to sue only operated so far as the rights of the surety were not affected, and as his position therefore was unaltered, he was not discharged, (a) 6. The surety may sue the principal for money paid on his guarantie. There being an implied promise, on the prin- cipal's part, to repay the surety anything he has been com- pelled ta pay thereunder, [b) 7. A co-surety can, if he pays more than his share, recover the amount over-paid, from the oth&f co-sureties, (c) 8. The surety, who has paid on a guarantie, is entitled to have assigned to him any securities the creditor may hold of the principals ; and to stand in every way in the creditor's shoes, ivith reference to the principal, (d) II. Contracts of Insurance. § A CONTRACT OF INSURANCE is whcre one agrees to indemnify another in respect of the loss, to which property of the latter may be exposed, in consideration of a sum of money paid, as the price of the risk run. (a) Price v. Barker, 4 E. & B. 760; (h) Warrington v. Furbor, 8 East, 242. (c) Kemjo v. Finden, 12 M. & W. 421. (fO 19 & 20 Vict. c. 97, s. 5. OP CONTRACTS OF INDEMNITY. 101 The insured or assured is the party iudemnified. The insurer y assurer, or underwriter [because he subscribes his name at the foot of the contract] is the party who gives the indemnity. The policy of insurance is the contract of indemnity itself. The premium!^ the sum paid as the consideration. I. A MARINE POLICY is taken by the owners of ships for the in- surance of a ship^ or freight to be carried ; and by owners of cargoeSj for the insurance of goods^ or of expected profits on the sale of goods ; against the perils of the sea^ men of wai% fire, enemies, pirates, letters of mart and countermart, takings at sea, arrests, restraints of princes and peoples, barratry [l)arratare to cheat; any fraud by which the shipowner is injured] of the master, or the mariners. [Negligence of the captain, or the crew, is a peril of the sea.] 1. A voyage policy is where the risk is guaranteed for the voyage of the ship from port to port. 2. A time policy !•& where the risk is guaranteed for a par- ticular period of time, (i) A valued policy is where the amount of the loss guaranteed is specified in the contract, (ii) An open policy is Avhere the loss guaranteed is not expressed in the policy, but is left to be calculated on the happening of the loss. § A VALID POLICY MUST 1. Specify — (i) The particular risk, (e) (ii) The names of the underwriters, {e) (iii) l^he sum insured, [e) (iv) The name of, or the name of the firm ol', (a.) One of the parties interested in the policy, or ((') 30 Vict. c. 23, s. 7. l02 RUBEIO OF THE COMMON LAW. (/3.) The consignor^ or the consignee of the goods insured^ or (y.) The broker negotiating the insurance, or (^.) The parties directing the broker to negotiate the insurance, (a) 2. ' Not be made for any period exceeding twelve months, {b) 3. Be duly stamped, (c) 4. Be entered into, only, by one, who has an interest in the subject matter of the insurance, [otherwise it is void, as a contract by way of gaming, or wagering.] (r/) [Note 1 . A person ?uis an interest, who may be in- jured by the risks, to which the subject matter of the policy is exposed, (e)] [Note 2. The underwriter may himself reinsure the ship, or goods, which he has guaranteed. (/) ] 5. The vessel must be in existence at the time the insurance is effected; unless the policy is expressly stated to be made" lost or not lost." § A POLICY MAY BE ASSIGNED, by endorsement; and the assignees may sue thereon in their own names. {(/) § There is an implied warranty by the insured, in a 1. policy of insurance on a shij). That the ship is, at the commencement of the voyage, " seaworthy," and properly equipped and manned. (i) In the case of a voyage policy, but (ii) In the case of a time policy, there is no such warrant]). [For it is usually effected when the ship is at sea, and the owner has no knowledge of its condition.] (A) ((() 28 Geo. 3, c. 56, s. 1. (\j) 30 Vict. c. 23, s. 8. (f) lUd, s. 9. (rf) 19 Geo. 2, c. 37, s. 1. (e) Lucena v. Grauford, 2 N. R. 301. (/) 27 & 28 Vict. c. 56, s. 1. ig) 31 & 32 Vict. c. 86, ss 1 aud 2. (/() Smuh V, GibHoii, 4 H. L. Ca. 353. OF CONTKAOTS OP INDEMNITY. 103 2. Tliat be will do uotliing himself to euliance the risk. (?) 3. That tlie vessel will proceed without delay^ and without deviation J to her destination, [k) § The underwriter will be liable — 1 . For an actual total los.f — (i) Of cargo ; when it is annihilated^ or has been permanently taken from the control and benefit of the insured. (ii) Of freight; when it cannot be earned,, through loss of the voyage by the peril insured against. (iii) Of the ship; when it is annihilated^ or permanently removed from the insurer^s control and benefit (as in the case of capture by the enemy) . 2. For a constructive total loss. When the ship^ or cargo, have been so damaged by the perils insured against, that it Avould cost more to repair the ship, or to carry the goods to their destination, than the ship or goods are respectively worth. Notice of abandoiiiiient must be given to the under- writers, within a reasonable time ; if a claim is made for a constructive total loss. For they are entitled to do what they can with the ship or cargo, so abandoned, for their own benefit. 3. For a partial loss, when damage is done to a portion of the ship, or cargo, by the perils insured against. [NoTi;. Partial loss, or a partial loss of under a certain amount per cent., unless it is general average loss, or the ship is stranded, is frequently excepted from the policy.] 4. For (jencral arerayv, the amount of contribution made (i) To recoup the owner of goods — {" ) Which have been jettisoned, or thrown over- board for the safety of the ship and cargo, dui'ing the perils insured against. (i) iJ&v:dl V. Viijm, 15 East, 70. (k) Hammund v. Reid, 4 B. & AM. 72 104 RUBRIC OP THE COMMON LAW. (/3) Whicli have been sold by the master to defray the expense of refitting the ship^ when damaged by the perils insured against ; by the respective owners of the cargo, and the ship and freight, which have been preserved through the sacrifice of what has been jettisoned, (ii) Towards the expenses of salvage, (iii) Towards the ship^s expenses when forced to put into port, in consequence of the perils insured against. 5. For particular average, partial loss of goods, through the perils insured against, sustained by individual owners. [Note. This is frequently excepted from the policy.] II. A FIRE POLICY is an undertaking in consideration of a premium, to indemnify the insured against damage to his property by fire during a limited period. [NoTK. A number of stringent conditions are usually attached to the policy, relating to the subject matter insured, to any alterations whicli may be made therein, to the nature of the risk, to the conditions of the claim in case of damage, its adjustment, &c., &c., all of whicli will be strictly construed.] § The insured must have an interest in the property guaranteed in the policy, otherwise the policy will be void. («) § A FIRE POLICY IS NOT ASSIGNABLE, being a chosc in action, at common law, so as to enable an assignee to sue in his own name thereon, {b) [Note. But by virtue of the Judicature Act, 1873 (c), it would be assignable, provided — (i) The assignment is in writing, and (ii) Express notice in writing is given to the insurers. ] § There is an implied promise by the insured not to («) 14 Geo. 3, c. 48. (6) Lynch v. Dalzell, 4 Bro. P. C;i. 431. (t) 3G & 37 Vict. c. 66, s. 25, sul)s. 6. or CONTRACTS OF INDEMNITY. 105 alter tlie structure of the premises insured, so as to increase the risk, when the insurance has been effected upon a particular description of the building, {d) § The insured can only recover his actual loss; and if he is insured in more than one otiice, he cannot if he is fully, or partly indemnified by one, further resort to another for more than the residue of his actual loss. He may resort to whichever he pleases ; and the others will be liable, as contributories, to the office, which pays the indemnity, (e) § The insurers can themselves lay out the insurance MONEY IN REPAIRS, oil the rcqucst of persons interested in, or entitled to a building destroyed by fire ; or upon any grounds of suspicion that the building has been fraudulently set on fire. Unless, 1 . The insured, within 60 days of the adjustment of the claim, gives security that the money shall be so expended; or 2. The money is at that time disposed of to the satis- faction of all parties. (/) III. A LIFE POLICY is 7iot (i Contract of indemnity, but an absolute promise to pay a certain sum in the case of death. {(/) [The insurer, in consideration of a premium, undertakes to pay the person, for whose benefit the insurance is made, a certain sum, or annuity, on the death of the person, whose life is insured.] § The person, for whose benefit the insurance is effected, must have an interest in the life insured. (A) § The names of the persons, so interested, must be inserted in the policy. (/') (d) SUIem v. Thornton, 3 E. & B. 882. (c) Park on Ins. Stii Ed. p. OOO. (/) 14 Geo. 3, c. 78, s. 83. ((/) Dalby V. Indian and London Insurance Company, 15 C. B. 3G5. (/() 14 Geo. 3, c. 48, s. 1. (i) Had. 8. 2. 106 EUBEIC OF THE COMMON LAW. [Note. A trustee;, or a creditor^ has an insurable interest in the life of the cestui que h^ust, or the debtor.] § The policy may be assigned^ either by indorsement^ or by a separate instrument ; and the assignee may sue in his own name on the policy. («) A ivritten notice of the assignment must be given to the insurance company, [a] § It is THE DUTY OK THE iNsuKED to disclosc all material facts within his knowledge at the time of effecting the insurance. [The insurers^ usually before the insurance is effected, require a declaration by the insured, and by a third party, to whom he makes reference, as to a variety of facts, con- cerning the habits and health of the insured, and the policy is conditioned to be void if a false declaration is made.] § The policy will be void apart from any condition therein, if the insured 1. Is killed ill a duel, {b) 2. Feloniously destroys himself, [b) .3. Suffers death as a felon, (r-) '1. INIakes any fraudulent representation, or concealment, of anything material to be known, at the time of effecting the policy. (rt) 30 & 31 Vict. c. 144, ss. 1, 5. {h) Wainuright v. Ulund, 5 M. & G. 639. {c)Arnicahle Society v. Bollaud, 4 Bligh. 194. CONTEACTS MADE WITH AND BY AGENTS. 107 CHAPTER VII. CONTRACTS MADE WITH AND BY AGENTS. § Ax AGENT is one who, under autliority from another, acts for that other within the scope of that authority. A person unable personally to contract (as a married woman) can, as agent for another, enter into a contract binding on that other. § A DEL CREDERK AGENT {cveclere, to trust) is where, in con- sideration of a larger commission, an agent warrants to his principal the solvency of the parties with whom he deals. His contract, however, though substantially a guarantie, need not be in writing under the Statute of Frauds, (d) § An agent, who is to execute a deed, must be appointed BY DEED, (e) § An agent must be appointed by a writing — 1. To grant leases of more than three years duration. 2. To assign an interest in land. 13. To grant an interest in laud. J, To surrender an interest in land. (/) ^ Or THE RIGHTS AND LIABILITIES or' PRINCIPAL AND AGENT INTER SE. 1. Tlie Fr'mcipal — 1 . May revoke his authority at any time, if there is no period defined for the continuing of the agency. Illmf ration. Fletcher employed Marshall & Co. to purchase scrip in the Essex and Suffolk Railway Co., {(I) CoutHrier v. Hudic, 8 Ex. 40. (e) Hunter v. Farher, 7 M. & W. 343. (/) 29 Carl. 2, c. 3, ss. 1, 2, 3. 108 EUBRIO OF THE COMMON LAW. and lodged the price in their hands. They did not succeed in obtaining the scrip before the then next settling day ; and Fletcher sued them for the money he had paid over to them. Marshall & Co. raised as a defence that a reasonable time had not elapsed for them to find a vendor for the scrip; but the court held that this was no answer, as Fletcher was entitled, at any time, to countermand the authority to buy. (a) 3. An authority, coupled with an interest, cannot be revoked. Illustration. John Leverson owed Foster & Co. £201, and, in order to pay them, authorized them to sell for him, and receive the purchase money of, certain copyhold premises in Hertfordshire ; and gave them a power of attorney to appear at the then next Court Baron, and surrender the farm to the use of the purchaser. Foster & Co. sold the farm, and received the deposit. J. L. in the meantime duly revoked the authority, and gave notice thereof to the steward of the manor. The steward, on an indemnity being given, admitted the purchaser. Gaussen, who claimed through the purchaser, took possession, and J. L/s representatives, Morton and wife, entered, and removed some hay. In an action of trespass by Gaussen against the Mortons, it was held, that, as the authority to Foster & Co. was coupled with an interest, it could not be revoked by J. L., and the sale was valid, and the plaintiff entitled to recover, [b] 3. If an agent employs a sub -agent, the principal has a remedy against the agent only. (ft) Fletcher v. Marshull, 15 M. & W. 7G3. (6) Gausacn v. Morton, 10 B. & C. 731, CONTEACTS MADE WITH AND BY AGENTS. 109 Illustration. Badcock, clerk to one John, an attorney, received certain monies on his mastei'^s behalf, which were due to a client of John^s, named Stephens. John absconded, and Badcock refused to pay the money, so received, to Stephens. In an action by Stephens against Badcock for the sum so received by him, it was held, that the defendant was only bound to account to John, and that there was no privity between him and the plaintiff, [c) •1. The principal must indemnify the agent for all necessary payments made by him, and all losses not incurred by his own negligence, in the course of his employment. Illuatrutiun. Stray emploj^ed Taylor and Aston, stock- brokers, to purchase for him 20 shares in the Royal British Bank. The brokers bought the shares, but before the settling day, the bank stopped payment, and Stray refused to accept and pay for the shares. Taylor and Aston, having been compelled by the rules of the Stock Exchange to pay for the shares, sued Stray for the price ; and it was held, that he was bound to indemnify his brokers against the consequences of all acts, done by them in pursuance of the authority conferred on them by him. [d) II. The aye.nt 1 . Impliedly promises to use due skill, care, and dili- gence. 2. Must obey the orders of his principal. 3. May exercise his discretion, (e) 4. May not himself purchase from his principals pro- perty, which he is entrusted by them to sell ; or sell (c) Stephens v. J'xukod; 3 B. & Ail. 'Xyi. (d) Taylor v. ,SY?«//, 2 C. B. N. S. 175. (e) VroHskmj v. Milb, V. ]\r. & K. 2!;s. J 10 R[JBEIC OF THE COMMON LAW. to them liis own property, unless he deals with them strictly at arm^s length, (a) 5. A right to his commission accrues as soon as the agent has concluded a contract on behalf of his principal with a third party. 6. Factors, brokers, and solicitors, have a right of lien on the property of their principals, which is in their hands, for their general balance. 7. If the agent exceeds his authority, he does so at his peril. Illmtratiov . Fitzgerald authorised Barron and Stewart to effect an insurance on his life, either in his own or in their own names, to secure a debt due from him to them. Barron and Stewart effected the policy in the names of themselves and Smith their partner. They from time to time paid the premia ; and eventually sued Fitzgerald for the amount so paid by them. It was Leld that they were not entitled to recover, as the insurance was not made according to the authority given. (6) 8. An agent cannot dispute his principal's title to the property he is entrusted to deal with, unless it has been obtained by fi-aud on the part of the principal. Jllustration. Hardman employed Willcock, an auc- tioner, to sell certain goods for him. Before sale, Willcock received notice from other parties, that the goods had been fraudulently obtained by Hard- man. Willcock sold the goods, and rendered an account to Hardman, but refused to pay over the proceeds of the sale to him. Hardman sued him for the amount of such jaroceeds ; and it was held, that though an agent is not entitled to set up the («) Murphji V. O'Shea, 2 J. & L. 422 ; TVadddl v. Bloclcey, 4 Q. B. D. 678. {b) Barron v. Fitzgerald, 6 Biiig. N. C. 201. COXTEACTS MADE WITH AXD BY AGENTS. Ill jus tertii iu an action brought against them by liis principal^ stilly as Willcock had notice that the goods had been oljtained by frauds he was right^ in this case^ to retain the money as against Hard- man. (c) § Of the rights and liabilities of principals on contracts MADE BY agents. I. As TO contracts under seal 1 . The agent must be appointed by deed. 2. The covenants must be entered into by and with the principal ; and tlie deed executed as and for the principal by his agent, lawfully appointed. Otherwise the principal can neither sue nor be sued on the deed. Illustration. James Simmonds, for and on behalf of AV. F. Berkeley, but not appointed his agent under seal, let a farm by indenture of lease to Hardy. Simmonds executed the lease in his own name simply; and the covenants were made by and with Berkeley. In an action by Berkeley on the deed, it was held that as the covenants were made with one party, and the lease was executed by another, he could not maintain his action, [d) 3. If the contract is made, and the covenants are entered into in the agent^s own name simply, he is liable to be sued thereon himself, and must sue, if an action is to be brought, as trustee for the principal. 4. An agent, duly appointed under a power of attorney, may execute a deed on his priucipaPs behalf, (i) By signing his principals name simply. (ii) By signing his own name, and expressing it to be for his principal. (c) Hardman v. TVillcoclc, 9 Bing. 382. {(I) Berkeley v. Hardy, 5 B. & C. 355, 112 RUBRIC OF THE COMMON LAW. (iii) By signing liis principalis name^ and expressing it to done through him, the agent, [per j)ro.) II. As TO CONTRACTS NOT UNDER SEAL. 1 . Rights of the principal, (i) If the agent has contracted in his OAvn name on behalf of an undisclosed principal, the latter may come forward and claim the benefit of the contract. Provided — 1 . The contract is executory. 3. The agent has not expressly described himself in a written contract as being the principal, [a) [See below.] 3. The inducement to the third party to enter into the contract was not based on the special character or credit of the agent. Illustration, Hunter entered into a charter- party with a shipowner, who described him- self therein as " C. J. Humble, Esq., owner of the good ship, or vessel, called ' The Anne.' " C. J. Humble was, unknown to Hunter, acting as agent for his mother, Grace Humble ; and in an action by her on the charter-party, parol evidence was ad- mitted at the trial, to shew that the son was acting on her behalf. The Court held, that this evidence was not admissible, because it contradicted the description given of C. J. Humble in the written document, and also because the third party has a right to the benefit he contemplates from the character, credit, and substance, of the party with whom he contracts, [a] 4, The principal is bound by all the equities which {a) Humble v. Hunter, 17 L. J. Q. B. 350. -^ COXTEACTS MADE WITH AXD BY AGENTS. ] 13 the third party would have against the agent. 1 1 losf ration. George, a clothier at Frome, employed Rich and Heapy in London, factors in woollen goods, as his del credere agents. Claggett & Co. bought a quantity of woollen cloths of Rich and Heapy, part of which were cloth goods of George's ; hut the whole quantity was taken out of a mass in Rich and Heapy's warehouse. Shortly afterwards Rich and Heapy became bank- rupts, and George coming forward as their principal, sued Claggett & Co. for the price of their cloth. It was held that Clag- gett & Co. were entitled to set off against George's claim the amount of an acceptance of Rich and Heapy's in Claggett & Co.'s hands, which would have been available against Rich and Heapy in a claim made by them, [b) ;iij If an agent contracts with a third party, without the principal's authority, the principal (if existing at the time of the making of the contract) may, when the facts come to his knowledge, either repudiate, or adopt the contract. Illustratioff . Wright held two promissory notes, a cheque, and an acceptance, of Marks'. Wright endorsed them to Ancona, and instructed a firm of solicitors to sue on them in Ancona's name. Ancona knew nothing of these proceedings imtil after action brought, when he adopted, and ratified them. It was hekl, tluit the action was properly brought in Ancona's name, {c) (b) George v. Claggett, 7 T. R. 359. (r) Anrona v. Mnrh, 31 L. .1. Ex. lf)3. 114 EUBEIC or THE COMMON LAW. 2. Liabilities of the principal. (i) Where an agent contracts as principal^ with a third partVj the latter^ on discovering the existence of the hitherto undisclosed principal^ may elect to hold liable, either the principal or the agent. Illustration. Curtis and Harvey sold some gun- powder to one Boultou. Boulton became insol- vent, and Curtis and Harvey then discovered he had bought as agent for Williamson & Co. They filed an affidavit of proof against Boulton^s estate, and brought an action against Williamson & Co. It was held, that they were entitled to make their election, as to whether they should look to the agent, or the principal, and that filiug an affi- davit of proof, was not such a step, as to shew a final election to look to Boulton. («) (ii) The same rule applies, when the agent contracts as agent, but does not disclose his principal's name. Illustration. McKune bought of Davenport certain glass and earthenware, under an order from Thomson, but did not mention Thomson's name at the time of the purchase. Davenport debited McKune, but before the credit expired the latter became bankrupt, and subsequently on Thomson's refusing to pay for the goods, sued the latter for the price. It was held that he was entitled to recover, [b] (iii) Where the agent has contracted, as agent, and credit has been given to him, with the full knowledge that he was only acting for a disclosed principal, the principal is not liable to the third party. Illustration. Larazabal & Co., sent for certain goods of Addison's to their office. Gandasequi, a (a) Curtis V. Williamson, L. R. 10 Q. B. 57. (h) Tlwmson v. Davenport. 9 B. & C. 78. CONTKACTS MADE WITH AND BY AGENTS. 115 Spanish merchant, there selected some of the goods_, and made stipulations as to the price and other matters. Addison debited Larazahal & Co. the brokers, in his books and invoices, and the brokers credited him with the amount of the purchase-money, and debited Gandasequi with the same, and charged a commission. Larazabal & Co. became bankrupt. In an action by Addison against Gandasequi for the price, it was held, that the plaintiff could not now elect to hold the principal liable, as he had made his election once, at a time when he knew who the principal was, to give credit to the agent, (c) (iv) Where an agent has, without authority, entered into a contract with a third party on behalf of his principal ; and the latter has subsequently, either expressly or by his acts, adopted the contract, he is liable to the third party. lllufttrafiou. One Ebsworth, a broker, bought a quantity of wool of McClean for Dunn and Watkin, without their authority. They sub- sequently assented to tlie contract ; but later on refused to accept and pay for the wool. In an action by McClean against Dunn and Watkin, it was held that they were bound by their sub- sequent assent to their brokei-'s contract, [d] (v) Parol evidence (which, as a rule, cannot be given to contradict a written document), may be adduced to enable an undisclosed principal to sue ; and also to charge him on a contract made on his behalf by his agent. [ It may ])e given to charge a neiv party, but not to dischan/e an apparent party] (r) Adduon v. Gandasequi. 4 Taunt. 573. (d) MrCImn v. Duvti, 1 M. & P. TOl. 116 EUBEIC OF THE COMMON LATV. Illustration ("■) Higgins & Son sold^ under a ivritten contract, 1,000 tons of iron to John Senior & Co., iron merchants and iron commission agents. It was sought by the defendants in an action by Higgins & Son on the contract against Senior & Co. to give parol evidence to show, that the defen- dants had only contracted as agents for one Mead ; but the court held, that it would not be admissible to discharge the defendants, {a) (^•) Humfrey sold, through his brokers, Thomas and Moore, 10 tons of linseed oil to Dale, Morgan & Co., brokers for one Schenk, on a ivritten contract, in which Dale & Co. professed to be acting as agents " for their principals." Schenk became insolvent, and did not accept the oil, and Humfrey & Co. sued Dale & Co., as on a sale of the oil to them. Evidence of a custom in the trade, that, when a broker purchased without disclosing the name of his principal, he was liable to be looked to as purchaser, Avas held to have been rightly admitted at the trial, for the purpose of charging the brokers, {by (vi) The principal will not be responsible on a contract induced by the fraud of his agent, unless he authorizes it, or retains the benefit of it. (c) 3. The authority given by the principal to the agent may be, (i) Express {«•) By writing. {^■) By parol (construed if ambiguous by the custom of the trade) . § An express authority includes an implied authority to do all acts necessary to the effecting of the purpose for which that authority is given. (fl) Higgins v. Senior^ 8 M. & W. 844. (b) Humfrey v. Dak, 7 E. & B. 266. ((■) Udell v. Afhcrfon, see ante, p. 72 ; Swift v. Jewshury, L. E. 9 Q. B. 312. CONTRACTS MADE WITH AND BY AGENTS. 117 Illustraiion, Howard saw at a riding scliool a horse o£ Steward^s. It was warranted sound by Steward^s brother, David, a horse dealer, who had brought the horse by Steward^s instructions to the riding school for Howard's inspection, in order to negotiate a sale. Whereupon Howard bought the horse for .€315. David had express orders not to give a warranty o£ the horse, but this fact was not imparted to Howard. On the horse turning out unsound, Howard sold it, and sued Steward for the loss on the resale. It was held, that David had an ostensible authority to do that, which was usual in the conduct of the business of a horse dealer, that this included the giving of a warranty, and that the plaintiff was entitled to recover, {d) (ii) buplied. By the previous course of dealing between the parties. ^ The extent of the authority is measured by the extent of the agent's usual employment. (a-) Where one accredits another by employing him repeatedly in any particular course of dealing, he is bound by the acts of that other, done in the seeming course of that employment. Illustration. Robinson was a shopkeeper at Duffield, in Yorkshire. He employed one Wonuick, who lived in London^ to order goods for him of Todd & Co., wholesale linendealers in London. Six parcels were so ordered and paid for by Robinson. Sub- sequently Womack fraudulently ordered more goods without authority, of which he got possession, and absconded. Todd & Co. ((/) Hoii-ard V. Shiainl, L. R. 2 C. P. 148. 118 .. RUBRIC OF THE COMMON LAW. sued Robinson for the price of these goods, and it was held, that the plaintiff could only look to the appearances held out to them by the defendants, and that they were entitled to recover, [a) {fi.\ Where one, by his conduct, holds out another as having a general authority to act for him, he is bound by the acts of that other, noiwith- standbig any private instructions to the contrary. Illustration. Jones was a wholesale straw-hat maker at Luton, and had a branch business in Milk Street, E.G., carried on under the name of " Bushell & Co.^^ Jones had agreed M'ith one Bushell, that Bushell should act as his manager in Milk Street. He opened an account at the London and County Bank in the name of Bushell & Co., and gave Bushell an authority to draw cheques in the name of Bushell & Co., but no authority to accept bills. In July, 1864-, Bushell accepted a bill in the name of the firm, payable at the bank. The bill was paid at maturity by Jones, but Jones forhade his accepting bills in future. Subsequently Bushell accepted three other bills in the same way, which Avere also paid at maturity; and, in con- sequence of this irregularity, Jones dismissed him. After this, Bushell negotiated another bill, accepted by the firm, with one Taylor, who discounted it with the London and County Bank. In an action by the Bank on this bill against Jones, it was held that he (a) Todd V. Robinson, K. & M. 219. CONTRACTS MADE WITH AND BY AGENTS. 119 could not by a secret reservation divest Bushell of the authority to draw and accept bills with which he had clothed him by holding him out as a principal in the firm of Bushell & Co. {b) (y-) Where the authority of the agent is notoriously limited^ the principal will not be liable on a contract made by him in excess of such au- thority. Illustration. Ewing authorized a firm of in- surance brokers at Liverpool to underwrite policies for him up to the amount of .€100 on each vessel. There was a well-known custom at Liverpool^ that there is^ in all cases, a limit of some sort imposed on brokers by their principals. The brokers underwrote a policy for Baines, in excess of their authority, for .£150. Baines did not know of, and did not enquire, as to limit. It was held in an action by Baines against Ewing on the policy, that the defendant was not liable, (c) (^.) In certain cases an agent has by custom an implied authority to do certain acta on behalf of his principal. For example. The master of a ship has an implied authority to bind the owners for the necessary repairs of the ship, [d] And to pledge their credit for things abso- lutely necessary for the due prosecution of the voyage, (e) A stockbroker has an implied authority from {h) Edmunds v. Bushell, L. R 1 Q. B. 97. (c) Baines v. Ewinfj, L. R. 1 Ex. 320. {d) Weston v. Wriijht, 7 li. & W. 39(5. (e) Robinson v. Lyall, 7 Price, 5y2. 120 RUBRIC OF THE COMMON LAW. his client to deal in accordance with the custom of the Stock Exchange, (a) § Of THE RIGHTS AND LIABILITIES OF AN AGENT ON CONTRACTS MADE BY HIM WITH THIRD PARTIES, I. Rights of the agent. 1 . When the principal is " disclosed " the agent cannot sue on the contract, unless he himselt", either has an interest in, or is personally bound by, the contract. Illnstrution. Williams, an auctioneer, was employed by one Crown to sell goods by auction on Crown's premises. Millington bought certain goods, and removed, but did not pay for, them. In an action by Williams against him for the price of the goods, it was held, that he had a possession, coupled with an interest in the goods, in respect of his right of lien for his charges, which entitled him to sue in respect of the price, ib) 2 . Where the principal is " undisclosed " the agent may sue on the contract, unless the principal comes forward. Illustration. Schmaltz & Co. entered into a charter- party with Avery, a shipowner, describing them- selves as " agents of the freighter.^' In an action by them on the charter-party, it was held, that they were entitled to prove that they were their own freighters, and their own principals ; and that they were entitled to recover in their own names, (c) II. Liabilities of the Agent. 1 . Where an agent contracts as principal with a third party, the latter, on discovering the existence of the hitherto (a) Grissell v. Bristoice, L. K. 3 C. P. 112. (6) Williams v, Millington, 1 H, Bl. 81, (c) Schmaltz \. Avery, 1(5 Q. B. 655, CONTRACTS MADE WITH AND BY AGENTS. 121 undisclosed or unnamed principal,, may elect to hold liable either the principal or the agent, [d] 'i. Where an agent contracts as agent^ and there is no principal in existence at the time of the making of the contract, he is himself liable as principal. I //astro/ ion. Baxter, Calisher and Dales, who were getting up a company to establish an hotel at Gravesend, purchased, and used, the stock of wines of Kelner " on behalf of the Gravesend Royal Hotel Company." About a month afterwards the company was incorporated, and shortly collapsed. In an action by Kelner for the price of the wines against Baxter, Calisher and Dales, personally, the Defendants contended that they were only acting as agents for the company, and were not personally liable; but the Court held, that the Plaintiff was entitled to recover, (e) 3. Where an agent has contracted as agent for an existing principal, who has, however, given the agent no autho- rity, the agent is not liable on the contract. But he is liable on an implied promise that he had the authority which he professed to have. It/ns/ration. Wright, believing he had authority from one Dunn- Gardener, agreed to grant a lease of a farm of Dunn-Gardener's in Cambridgeshire to Collen. Dunn-Gardener refused to execute a lease, and Collen sought specific performance against him, and on proof of the absence of due authority in Wright, was un- successful. Collen then sued the executors of Wright (who had died in the meantime) for representing that he had such authority, whereas he had none ; and it (fZ) See ante. p. 114. (e) Kelner v. Baxter, L. R. 2 C. P. 174. 122 EUBEIC OP THE COMMON LAAV. was held^ that Collen was entitled to maintain an action for the breach of an implied promise to that effect, (a) 4. Where an agent signs a ivritten contract in his own name ivithoiit qualification, whether the principal be disclosed or not^ he is liable. Illuslra(io/i, G. W. Winlow signed a charter-party in his own name. In the body of the document he was described as "agent for E. W. Winlow & Sons^ of Devonportj merchants." Jn an action by the ship- owner on the charter-party, G. W. Winlow was held to have pledged his personal liability, and that the words " agents for, &c.," were mere words of description, [h) Unless there are plain words in the body of the contract, to show, that he is contracting on behalf of a disclosed principal, and that he does not intend to be personally liable. Illustration. Bowditch, a broker, signed, and sent to Southwell & Co , a note of a contract in the following terms : " I have this day sold by your order, and for your account, to my principals, five tons of anthracene. W. A. Bowditch."^ In an action by Southwell & Co., for the price of the goods against the broker, it was held, that he Avas not personally liable on the above contract, [c) [Noij;. Parol evidence cannot be given to discharge the agent from liability, by shewing that he was only acting as agent, when he has neglected to declare the agency in the document, {d) \ 5 When from the circumstances of the case the fact of (rt) Collen V. Wright, 7 E. & B. 301. (h) Parker v. Winlow, 7 E. & B. 942. (c) Southwell V. Bowditch, 1 C. P. D. 374. ((?) Higgins v. Senior, see ante, p. 116. CONTKACTS MADE WITH AND BY AGENTS. 123 agency is notorious, the agent will not be personally liable. Illustration. Bridge was a solicitor, having conduct for the defendant, of the cause of House v. Leaky, at Taunton Assizes, He served a subpoena on one Thomas Robins, amongst other witnesses, to attend, and give evidence, on behalf of the defendant. Subsequently, on the death of Robins, his executrix sued Bridge for his expenses of attendance, and the court held, that the solicitor, being known merely as the defendant's agent, there was no implied contract on his part to pay the witnesses, {e) O.The receipt by the agent is the receipt by the principal ; and an agent cannot be sued for money paid to him, for which he is accountable to his principal. Illustration. Bamford bought certain premises of one Stott, at auction. The memorandum of the sale was signed, and the deposit was received, by Shuttleworth, the vendor's solicitor, as agent for Stott. The sale having subsequently gone off, Bamford sued Shuttle- worth for the deposit ; but it was held, that there was no privity between the Plaintiff and Defendant, and that Stott only was liable to refund the money. (/) 7. If money is paid by a principal to his agent, for a third party, the agent is only responsible to his principle ; and he is not liable to the third party, unless he has con- sented to hold it for the third party. Illustration. Hill and Warren sold a (piantity of wool to Kershaw, at Rochdale, who gave them his accep- tance for £738 17^. Qd., at four months, in payment. On the day before the bill became due, Kershaw paid the amount required to meet the bill into his bankers. (e) Robins v. Bridrje, 3 M. & W. 118. (/) Bamford v. Shuttleworth, 11 Ad. & E. 92G. 124 KUUEIC or THE COMMON LAAV. Clement Royds & Co., who ordered their agents in London, the London and AYestminster Bank, to pay the hill on presentation. Kersha^y died on the follow- ing day, insolvent, and largely indebted to the bank. The bank by telegraph countermanded their order to the London and Westminster Bank, and refused to cash the bill, claiming to keep the money in their hands against their own debt. Hill and Warren, in consequence, who were the drawers of the bill, had to pay it, and filed a Bill in Equity against the bank, to make good the amount. It was held that (though Kershaw^s representatives had a remedy), there being no privity between Hill & Warren and the bank, they were not entitled to maintain the suit, {a) Partnership. § Partners [whether active or dormant] are the accredited agents of each other, {b) § Each has an implied authority to bind the other 1, By all simple contracts entered into in the usual course of the business of the firm. 2, By negotiable instruments circulated on behalf of the firm, [b] [Note. One partner cannot bind another by deed [except a deed of release (r) ] , unless expressly authorized by deed to do so. [d), and see ante, as to agents, pp. 107, 111.] § The rights and liabilities, therefore, of partners against, and to, third parties is governed by the law relating to PRINCIPALS AND AGENTS. (a) Hill v. Eoyds, L. E. 8 Equity, 290. {!)) Whcatcroft v. Hickman, 8 H. L. C. 2(58. (c) Baileu v. Lloyd, 7 Mod. 250. (d) Harrison v. JacJction, 7 T. R. 207. CONTRACTS MADE WITH AND BY AGENTS. 125 § Partnershiv is where two or more persons^ standing to each other in the relation of principals^ agree to combine property^ skilly or labour for the purpose of a common undertaking , and the acquisition of a common profit. § A partnership consisting of more than tiventy members, [and in the case of banking firms^ of more than ten members,] must be registered under the Companies Act, 1862, Unless — 1. It is formed in pursuance of some other act. 2. It is formed in pursuance of letters patent. 3. It is engaged in working mines within, and subject to, the jurisdiction of the Stannaries, (e) § The liabilities incident to partnership are excluded [unless some further facts are shown] , by " The Law of Partnership Act, 1865,'^ (/) from attaching in the following cases : 1 . Where one lends money to another, for trading purposes, upon a written contract, that the lender shall receive — (i) Interest varying with the profits, or (ii) A share in the profits. 2. Where a servant, or agent, of a trader, is remunerated by a share in the profits of the trade. 3. Where the widow, or child, of the deceased partner of a trader, receives by way of annuity a portion of the profits of such trader^s business. 4. Where one has sold the goodwill of his business, and continues to receive a portion of the profits of such business as the price. § The liabilities incident to a partnership cease — 1. In the case of an ostensible partner, (i) By dissolving the partnership ; (ii) Removing his name from the firm ; and (iii) Giving notice of the dissolution (e) 25 & 26 Vict.c. 89. s. 4. (/) 28 & 29 Yict. c. 86, 126 EUBRIO OF THE COMMON LAW. (a ) To the public^, by notice in the Gazette («) ; (/3.) To those who have dealt with the firm^ by special notice, [b) 2. In the case of a dormmit partner. (i) By dissolving the partnership ; and (ii) By giving special notice to any persons who have dealt with the firm with the knowledge that a secret partnership existed, (c) Upon ail contracts subsequent to the date of the dis- solution OF PARTNERSHIP. {(1) (a) Goflf)-ey v. Turnhdl, 1 Esp. .371. (h) Graham v. Hope, PeaJce, 208. (f) FarrefT v. Definne, 1 C. & K. 580. {d} Wood v. Braddid; 1 Taunt. 104. CONTRACTS IN EELATION TO MARRIAGE. 127 CHAPTER VIII. CONTRACTS IN RELATION TO MARRIAGE. § Contracts in unreasonable restraint or marriaok are void^ as being contrary to public policy. For example. If Miss Jones were, in consideration of an annuity paid by Mr. Smith, to covenant with him, that she would never marry anyone but ]Mr. Robinson, such a contract would be void. But if she were to covenant that, so long as the annuity were paid she would not marry Mr. Brown, such a contract would not be illegal. § Marriage brokerage contracts are void, as being contrary to public policy. Illuslration. The Duke of Hamilton, being anxious to marry the Lady Gerard, was induced by her guardian to promise to give a release, within two days after the marriage, of all accounts of the mesne profits of an estate belonging to the young lady. The marriage took place, and on the application of the husband, the Court of Chancery set the agreement aside, as void, (e) § A fraudulent representation by a third party made to bring about a marriage, will estop him from disputing, or denying the truth of, such representation, after the marriage has taken place. Illustration. Moses Montefiori, in order to promote his brother Joseph's marriage, gave him a note for a large sum of money, as balance of an account between them ; though, really, there was no such balance existing at all. The marriage was carried out, and Moses then demanded (t) Hamilton v. Mohun, 1 Sulk. 158. 128 EUBRIC OF THE COMMON LAAV. back the note^ as having been given without considera- tion ; but it was held^ that he could not take advantage of his own £raud_, and that Joseph,, though in collusion with him, was entitled to the note, (a) § A PROMISE IN CONSIDERATION OF MARRIAGE [ othci' than the mar- riage contract itself) must be in writiiiy (see ante, p. 41.) [Note. The performance of the ceremony is no such "part performance " as to satisfy the Statute of Frauds. Jllustratiun. In 1852, the Eev. R. B. Caton, a widower, aged 80, proposed to Mrs. Henley, a widow, aged 60. A verbal agreement was made between them that the husband should have the wife's property for life, paying her £80 per annum pin-money, and that she should have it after his death. It was afterwards agreed that there should be no settlement executed, but that the husband should make a will leaving the wife all her property. The marriage took place, and the husband made his will accordingly. On his death a different will was found. Mrs. Caton filed a bill against the executors, praying for a declaration in accordance with this promise, and for an account. It was held, that there being no contract in writing to that effect, she must fail, as marriage was not a part performance within the meaning of the Statute of Frauds, [b)] § Of A PROMISE TO MARRY BETWEEN PRINCIPALS. 1. It need not be in writing Unless the marriage cannot take place within a year, (c) 2, It must be, to marry within a reasonable time; other- wise it becomes a contract in unreasonable restraint of marriage, and therefore void. (a) Montefiori v. Montefiori, 1 W. Bl. 363. (/)) Caton V. Gaton, L. E. 1 Ch. 137. ((•) 29 Car. 2, c. 3, s. 4. CONTRACTS IX EELATIOX TO MARRIAGE. 129 3. The plaintiff J in an action for breach of promise of marriage must be corroborated by some material evidence, other tlian hisor her own word, {d) 4. A woman may break off her engagement if the man has conducted himself in a brutal or violent manner, (e) 5. A man may break off his engagement, if subsequently to his promise he discovers that the woman was, at the time of the promise, of loose character. (/) 6. Bodily disease, rendering it dangerous or impossible for the defendant to perform the functions of matrimony, is no answer to an action for breach of promise, {g) 7 . If either party has been induced to enter into a contract of marriage by a fi-audulent representation, to which the other is privy, the contract is voidable, (h) § Husband and wife. 1. The husband may take the profits of the wife^s freehold estate. But he may not convey away the estate itself, without her joining in the conveyance, and making an acknow- ledgment of the deed being her deed, and of her consent to its execution, before two commissioners appointed for that purpose under the " Fines and Recoveries Act, 1833." (?) 2. Marriage operates as a gift in law to the husband of all the wife^s chattels real, and all her personal estate (in the absence of any settlement thereof to her separate use). 3. Also of all her clioses in action. ((0 32 & 33 Vict. c. 68. s. 2. (e) Leeds v. Cook, 4 Esp. 254. (/) Foalkes v. Hdvcuj, 3 Esp. 236. \) Hart V. Windsor, 12 M. & W. 68. (c) Ardm v. Pullen, 10 M. & W. 321. (d) Gott v. Gaudy, 2 E. & B. 845. (e) Henderson v. Squire, L. R. 4 Q. P.. 17(>. (/) Delaneij v. Fox, 2 C. B. N. S. 708. M 2 164f BUBEIC OF THE COMMON LAW. 3 Where tliere is neither an agreed nor a customary notice^ a reasonable notice. § It must be given so as to expire at the end of a current year^ half-year, quarter, month, or week, as the case may be, unless there is an agreement to the contrary. (See ante, p. 155.) § Notice to quit under the agricultural holdings act, 1875, is (where there is no agreed notice) increased from six to twelve months. 1. Where the holding is agricultural or pastoral, of two acres or more. 2. Where the parties have not contracted themselves out of the Act. (a) § The notice may be waived by — 1. The lessor accepting, or distraining for fresh rent due after service of the notice. 2. By serving a fresh notice to quit. II. By surrender. (See ante, p. 38.) This must be — 1. By deed, where the demise is for more than three years, {b) 2. In w'riting, where the demise is for less than three years, and either in writing or by parol, [c) 3. By operation of law ; which may arise — (i) By the substituting a fi^esh lease for the existing lease, (ii) By the landlord accepting a fresh tenant in lieu of the original one, under an agreement between all three parties; provided the new tenant actually takes possession. Illustration. Atherston, who was tenant to Nikells under a demise in writing for three yearSj quitted the premises, and wrote to his (rt) 38 & 39 Vict. c. 92, ss. 51, 54, 58. {h) 8 & 9 Vict. c. 109, s. 3 ; 29 Caii 2, c. 3, s. 3, (0 29 Carl. 2, c. 3, s. 3. L.\JN'DLORD AND TENANT. 165 landlord^ stating his inability to pay the reut^ and that he trusted the rooms would be let by the landlord^ to someone else on better terms. Nikells accordingly relet the premises to another tenant_, who entered, and paid rent. Nikells, however^ after finding the latter in- solvent^ turned rounds and sued Atherston for back rent. The Court held that Atherston's term had been surrendered by operation of law. {d) (iii) By an agreement between the lessor and the lessee that the term shall be put an end to^ followed by the formal quitting of the tenant^ and entry by the landlord^ of the premises. Illustration. Popplewell was tenant to Phene of certain premises, and on April 12th, 1861^ quitted^ and left the key at Phene's counting- house. The key was not returned. On 4th May following, Phene entered^ and caused the front of the house to be washed down. In June he gave the key to an auctioneer to enable him to show the premises^ and a board was put up for letting. PopplewelPs name was painted out on September 2 1th, and on October 26th Phene gave him formal notice that he resumed possession. In an action by Phene for three quarters' rent in arrear, it was held, that the above facts amounted to a surrender by opera- tion of law. [e] [Note. Surrender by operation of law is also called sur- render by estoppel. § Estoppel in pais {estouper, obstipare) is where (d) Nikells v. Atherston, 10 Q. B. 944. (e) Fhene v. Popplewell, 12 C. B. N. S. 334. 166 RUBIIIC OF THE COMMON LAW. a man is precluded by his own conduct or statements from alleging a state of facts different from that_, which he has represented as existing. For instance. Where the lessee accepts a new lease from the lessor, he affirmSj or is estopped from denying, that his lessor had power to grant the new lease ; and as the lessor could not grant the new lease, till the old one had been surrendered, the law assumes that on acceptances of such new lease, there has been already a surrender of the old one.] [Note. Where a lessee has made an underlease, he cannot by surrendering his term, affect, or jjrejudice the rights of the underlessee. (a) Illustration. Strattou held two pieces of land in the Isle of Wight, B & C, of Sir Richard Simeon under a lease, by which he covenanted that if he built on B & C, the houses on B should have a sea view over C. Stratton gave an under-lease of B to Harbour^ and covenanted to observe the covenants in the original lease. Harbour built on B, and assigned his lease to Piggott. Afterwards Stratton sur- rendered his lease to Simeon, and took from him another without the restrictive covenants, and pro- ceeded to build on C, so as to obstruct the view from B. Piggott applied for an injunction to restrain Stratton from so building ; and it was held that the rights of Harbour under Stratton's covenant to observe the covenants in the original lease, were not affected by the surrender of that lease, and that Piggott was entitled to his injunction, {b) (a) 8 & 9 Vict. c. 106, s. 9. (b) Picjcjott V. Stratton, 1 De G. F. & J. 33. LANDLORD AND TENANT. 167 III. Merger. That is^ when there is an union of the term with the immediate reversion ; both being vested in the same person, in the same right. The term is then said to be merged, or drowned, in the reversion; otherwise the same person would be both landlord and tenant at the same time. For hisfiince. If Smith lets premises to Jones for twenty years, and then, subsequently, sells him the fee simple, the lease is merged in the reversion. IV. FoRFEiTURK. A Icase may be forfeited by the breaeli of — 1. A condition, or proviso, in the lease; as a condition ^ that the term shall be determined on the bankruptcy of the tenant. 2. A covenant in the lease. ProvUli'd there is also a condition in the lease for re- entry on the breach of such covenant. For example. A breach of a bare covenant to repair does not create a forfeiture ; but if there is also a provisc for re-entry in case the covenant to repair should be broken, then a forfeiture ensues on breach of the covenant. § A Forfeiture will be waived, if after breach of the covenant or condition, and with a knowledge of such breach, the lessor docs any Act, whereby he acknowledges a continuance of the tenancy at a later period. For instance. If he accept or distrain for rent which accrues due after the date of the forfeiture. § But if ejectment is brought by the lessor for the fqrfeiture ; it is shown that he has unequivocally elected to determine the lease ; and no subsequent receipt of, or distress for rent will imply a waiver. Illiintrafio)}. Moss was tenant of a farm to Grimwood. The latter brought ejectment on July 2 1st for certain breaches of covenant. Subsequently he distrained for rent due on June 24th. At the hearing of the suit for ejectment, it was contended 168 EUBRIC OP THE COMMON LAW. (ii) (iii) (iv) (V) that tlie subsequent distress was a waiver of the breach of covenant ; but the Court held that it was perhaps an act of trespass, but was no waiver, (a) § Forfeiture is relieved against in two cases. 1. For non-payment of rent, if the tenant within six months of the time that execution has been executed on a judgment in ejectment against him, pays all arrears of rent with full costs, [b] 2. For breach of covenant to insure where — (i) No loss or damage by fire has occurred. The breach has occurred without fraud or gross negligence. The premises have been duly re-insured at the time of the application for relief. Kelief has not already been given to the same person. No previous forfeiture has been waived in favour of the same person, (c) If a tenant directly repudiates his landlord's title, either — 1 • By an act in pais (that is an overt, notorious act, as by making a feoffment of the land to another by livery of seisin) or 2. By denying it upon record (that is, in a Court of law; as, if a tenant were to suffer judgment by default in an action of ejectment brought by a stranger, or plead in an action by a stranger, admitting thereby the stranger's title) ; a forfeiture of a lease for a term of years is ipso facto committed, [d) § A yearly tenancy may be forfeited by a parol («) Grimwoud v. 31oss, L, R. 7 C. P. 360. (b) 15 & 16 Vict. c. 76, ss. 210, 212 ; 23 & 24 Vict. c. 126, s. 1. (c) 22 & 23 Vict. c. 35, ss. 4, 6. {(l) Doe d. Gmve,s v. Wells, 10 A. & E. 427 ; Coke, 251/;, 252rt. V, Disclaimer. LANDLOED AND TENANT. 169 disclaimer [oi*^ to speak more correctly, the denial of tlie tenancy dispenses with the need of a notice to qnit. (e)] [Note. If a tenant for years wilfully " holds over," after written demand of possession, or after his own notice to quit given to the lessor, the lessor may site him for double rent, (/)] § A TRUSTEE OF A BANKRUPT'S ESTATE may, in his discretion, by writing, under his hand, disclaim a lease, under which the bankrupt held as lessee, and which has vested in the trustee under the Bankruptcy Act, 1869. {g) Remedies of the Lessor for Nonpayment of Kent. I. An action, either on a covenant or a simple contract, as the case may be. II. A DISTRESS; which is the taking, without legal process, cattle or goods, as a pledge to compel the satisfaction of the demand. § It is essential that, 1. There should be a tenancy between the parties. 2. That there should be rent due. 3. That the distrainor should have a present right to the reversion. [Note. This is a very ancient remedy, which a landlord is privileged to exercise for the recovery of rent that is in arrear. He has a right to go upon the premises, and either him- self, or by his bailiff, to select, and seize of the goods thereon, such of those, not privileged from distress, (see post, Book III. Part III. Chap. II.) as he may consider sufficient to satisfy his claim. (e) Doe d. Graves v. JVells, 10 A. & E. 427 ; Coke 251b, 252a. (/) 4 Geo. 2, c. 28, s. 1 ; 11 Geo. 2, c. 19, s. 18. {(J) 32 & 33 Vict. c. 71, s. 23. 170 EUBEIC 01*' THE COMMON LAW. He will then '' impound ^^ them; if cattle oxe distrained, by taking them to the public pound, or, if there is no public pound, to some safe place; if (/oods are distrained, by collecting them together on the demised premises (a) , and " putting a man in possession,'^ (that is, leaving a man on the premises to look after them), or removing them to a place for safe keeping. He will next make an inventory of the goods taken, and serve it with a " notice of distress,'' [that is, of the fact of the distress ; of the amount payable for rent and charges ; and of the time within which the goods must be " replevied " (see post, "Replevin")] upon the tenant. On the expiration of the time within which the tenant is entitled to replevy (that is five days) he will remove the goods and have them appraised and sold, (b) If there is any balance after the claim for rent, and the costs of the distress, &c., have been satisfied, it will be paid over to the tenant. If the sale does not produce sufficient to satisfy the arrears, a second distress (where cattle is distrained) may be put in ; provided that there were not sufficient goods on the premises, which could have been taken on the first distress, had the distrainor thought proper, (c) J ■^ The landlord may distrain for six year's arrears of rent, and no more, {d) ~~^ § When goods have bern fraudulently re move n by the tenant to avoid a distress, the landlord may follow, and distrain them wuthin thirty days of such removal, (e) Proridtd the goods have not been sold to a bond fide purchaser, (e) [As to when, where, and on what, a distress may be made, see post, the chapter on ''Wrongful Distress."] («) 11 Geo. 2, c. 19, s. 10. (6) 2 W. & M. c. 5. (c) 17 Carl. 2. c. 7, s. 4. ((/) 3 & 4 Will. 4, c. 27, s. 42. (e) 8 Ann. c. 14, s. 2 ; 11 Geo. 2, c. 19, s. 1. LANDLOKD AND TJiNANT. 171 Of the Recovery op Land. § If a trespasser comes upon the land of another, he may be ejected by the use of such physical force, as is necessary for the purpose. § If, however, a person comes into possession of premises law- fully, and refuses to quit them after the time has expired dui'ing which he can lawfully remain there, the real owner with an immediate right of possession cannot expel him by main force ; or he will be liable to an in- dictment for the crime of '^ forcible entry,^^ and subject to imprisonment during the Queen^s pleasure. He must therefore take steps to dispossess the wrongful occupier by a lawful process. I. ByjEjECTMENT AT COMMON LAW. to support wliich it is § Essential that the lessor has a right to re-enter — 1 . By reason of the expiration of the term, 2. Its determination by a lawful notice to quit, or 3. Its forfeiture. [Note. If the forfeiture is for non-pay mod of rent, a formal demand of the rent (unless this is rendered unnecessary by the terms of the lease) must be made — (i) By the landlord, or his agent, (ii) On the actual last day remaining to the tenant on which to pay it. (iii) At a convenient time before, and at, sunset, (iv) At the place specified for the payment of the rent; and if no place is specified, on the demised premises. (v) Of the precise sum due, neither more nor less.] II. By the common law rR0C!-CJ)URE act, 185:2, (/) for non- payment OF KKNT. To support wliicli it is (/) 15 & 16 Vict. c. 76, s. 210. 172 EUBRIC OP THE COMMON LAW. § Essential — 1. That the ejectment be brought by a landlord against his tenant. 2. That the landlord has a right to re-enter for non- payment of rent. 3. That there is at least one half-year's rent due, and in arrear. 4. That there is no sufficient distress to be found on the premises. [Note. No formal demand of the rent need be proved. ] III. By the Common Law Procedure Act^ 1852 (a), the lessor may^ with his writ of ejectment, serve a notice on the lessee, and call on him to find security for the costs and damages of the action; and in default may sign judg- ment for recovery of possession and costs. 1 . Where there is a lease or agreement in writing, 2. Where the term has either (i) Expired, or (ii) Been determined by a regular notice to quit, and 3. Where the lessee refuses to quit after lawful demand in writing. IV. By the CoTjNTr Court Acts, 1856, Sect. 50 and Sect. 52 (b), the lessor can get an order for possession from a county court against the lessee. 1 . For holding over. (i) The term having expired, or (ii) Having been determined by a legal notice to quit. 2. For non-payment of rent. (ij Half a year's rent being in arrear. (ii) There being no sufficient distress to be found on the premises. («) 15 & 16 Vict. c. 76, s. 213. (6) 19 & 20 Vict. c. 108, ss. 50, 52, " The Small Tenemeuts Act." LANDLOED AND TENANT. 173 (iii) The lessor having a right to re-enter. Provided — 1. Neither the annual value of the premises^ nor the rent^ exceeds <;€50. [Andj under sect, 52, provided no fine or pre- mium has heen paid for the lease.] 2. No question of title arises, [c] 3. The claim is by the landlord against his tenant. V. By the County Court Act, 1867^ ejectment may be brought in all cases, notwithstanding a question o/" title may arise. Provided (a.) Neither the annual value, nor the rent payable, exceeds .€20. (d) (/3.) Proceedings cannot be taken under the ''Small Tenements Act." (e) VI. Justices in petty sessions may issue a vi^arrant to thk POLICE to give possession OP PREMISES TO A LANDLORD. 1. Where there has been a tenancy at will or for a term not exceeding seven years. 2. The term has expired or been lawfully determined. 3. The tenant is holding over. 4). The annual rent payable does not exceed jg20 ; and 5. No fine has been reserved or made payable. (/) § Mesne profits. Intermediate profits. That is, the profits which have been arising from the land between the time when the right of the plaintiff in ejectment first accrued, and the time of his recovery in the action of ejectment. § A claim for mesne profits may be joined in an action of ejectment, (g) (c) Pearson v. Glasebrook, L. R. 3 Ex. 27 ; 9 & K) Vict. c. 95, s. 58. (d) 30 & 31 Vict. c. 142, ss. 11, 12. (e) C. C. Rules, Order xxxvii. r. 25. (/) 1 & 2 Vict. c. 74, s. 1. (f/) C. L. P. Act, 1852, s. 214, and Jud. Act, 1875, Order xvii. r. 2. BOOK III. EELATma TO PARTICULAR TORTS. PART I. OF THE INFRINGEMENT OF THE PRIVATE RIGHTS OF OWNERS AND OCCUPIERS OF LAND. CHAPTER I. SERVITUDES. § A SERVITUDE is a burthen imposed on a man's land for tlie benefit of adjoining land. § The servient tenement is the name given to tlie land, on which the burthen is imposed. § The dominant tenement to that, in favour of which the servient tenement is burthened. For insffoire, if Jones owns No. 1, and Smith owns Ko. 2, in a street, and the drain of No 1 has a right to empty itself into the drain of No. 2, the latter being connected Avith the main sewer in the street; No. 1 is a dominant tenement, and No. 2 is a servient tene- ment. And No. 1 has the benefit of the servitude with which No. 2 is burthened, by virtue of which the sewage of No. 1 is allowed to pass into the main through the drain pipes of No. 2. 176 RUBRIC OF THE COMMON LAW. 1. Natural servitudes are those, which are from the nature of the case the necessary adjunct to the properties, to which they are annexed. 1 . The burthen of receiving all streams of water, which naturally flow down to them from adjoining land of a higher level. Illustration. Under an award by enclosure com- missioners, a drain was made over two adjoining closes, belonging respectively to Sharpe and to Hancock. Afterwards Sharpe opened a fi'csh drain into his part- of the awarded drain, which consequently carried more water into the lower portion, which it was Hancock^s duty to cleanse. In an action by Sharpe against Hancock, for not cleansing the drain, by reason of which the sur- face water accumulated on Sharpens land, it was held, that Hancock was bound to provide for the due carrying off of such water as naturally flowed down to his land through the awarded drain ; but not for additional water cast upon him by the act of the plaintiff, {a) 2. The burthen of transmitting, unpolluted, all streams of water, flowing upon them, to adjoining land of a lower level. Subject to the right of making such a reasonable use of the stream during its transit, as does not in- terfere Avith the enjoyment of the water by the next riparian owner. Illustration. Wood & Co., and Waud & Co., were worsted spinners at Bradford ; and each had mills on a stream called the Bowling Beck. Wood & Co.'s mills were lower down than Waud & Co.'s. The latter fouled the stream (a) Sharpe v, Hancock, 7 M. & G. 354. SERVITUDES. 177 by turning into it soap-lees and wool refuse ; but the water was still sufficiently pure for Wood & Co/s works. In an action by the latter it was held that they had a right to have transmitted to them the natural stream, in its natural state, free from pollution ; and that they were entitled to maintain the action for the damage in law, though there was no damage from the pollution in fact, (b) 3. The burthen of affording such lateral support to the next adjoining land, as will suffice to keep it in its position, when not weighted by the addition of any- thing superimposed, such as a building. Illustration. Mrs, Wyatt and Harrison were owners of adjoining pieces of land, and the former built a house on, and close to, the edge of her own land. Afterwards Harrison dug away the soil on his own ground, in consequence of which the foundations of Mrs. Wyatt^s house sank, and the house was greatly injured. In an action by Mrs. Wyatt, the Court held that Harrison^s land was bound only to keep the plaintiff's land in its place ; and that she had no right of support to the artificial weight of the house which she had built, (c) 4. The burthen on the owner of the subsoil of affording such vertical support to the surface of the land, as will suffice to keep it in position when not weighted by the addition of anything superimposed, such as a building. lUustratioyi. Humphries was possessed of certain arable land, under which were certain coal mines. (6) Wood V. Wand, 3 Ex. 748. (c) Wyatt V. H'irriso),, .3 B. k Ad. 871. N 178 EUBEIC OF THE COMMON LAW. leased by tlie Durham Coal Company of the Bishop of Durham^ the freeholder of the mines. The coal company removed the coal without leaving sufficient support to the surface. In con- sequence of which Humphries^ land sank. In an action by him against the coal company (sued in the name of their secretary) the Court held that they were liable ; although they had not been guilty of any negligence in the way in which they had worked their mines. («) It. Conventional servitudes are those which are of greater extent than natural servitudes^ and have come into ex- istence by virtue of a contract, express, or implied, between the parties. They are — 1. Easements. (i) Rights to pollute the air. (ii) Rights to have light unobstructed. (iii) Rights of lateral and vertical support to buildings. (iv) Rights of fouling water. (v) Rights to divert, and use, and pen back water. (vi) Private rights of way. [Note. § K public right of way is not an easement. It is a " dedication to the public " by the owner, of the occupation of the surface of the land for the purpose of passing and repassing, [b) § It is pkovki) by evidence of an animus dedicandi in the owner of the soil, and no user for any partici^ar Igngth of time is required to establish it.] (a) Humfhries v. Brogden, 12 Q. B. 739. (6) Ranyeley v. Tlie Midland Railway Comjxtny, L. E. 3 Cli. 311. SERVITUDES. 179 § An easement is a privilege without profit whicli the owner of land has a right to enjoy in respect of that land over the land of another. § It is essential that it should be necessary to, and accessorial to,, the use and enjoyment of land, and is appurtenant thereto. \ An easement cannot exist " in gross ; " for there must be both a dominant and a servient tenement. A contract creating such a right, is a mere personal covenant, and is in other words " a license.^^ (c) ^ An easement is transferable with the land to which it is accessorial. 2. Profits a'' prendre. § A PROFIT A PRENDRE is the privilege of taking some part of any natural product in the land of another. (i) Those which are attached, and accessorial to, the Use and Enjoyment of Land. [Note. Incidents — 1 There must be a dominant tenement to which they are attached, and for the benefit of which they exist, (c) 2 When assigned along with the dominant tene- ment, they are still binding on the servient tenement. (e)j (« ) A ri(//it of common appendent to land. This is the right of the freeholders of a manor to depasture on the lord's waste, such horses, oxen, kine, and sheep, as they require for ploughing, and manur- ino' those of their lands which have Ijeen in tillage from time immemorial, or have been originally in tillage, and subsequently laid down in grass, {d) (c) Ackroyd v. ^aith, 10 C. B. 164 Id) Bennett v. Reeve, Willed, 231. n 2 180 EUBBIC OF THE COMMON LAW. [The right is presumed to exist at common law, because in early times nearly all farms were in tillage,, and but few in pasture, so that when the crops were in the ground, there would be no place for pasture of the beasts necessarily used in the cultivation of the farm, unless they were turned out on the lord's waste, [a) (/3) A right of common appurtenant to land. This is a right founded on grant to go upon the land of another, and take some natural product there- from. 1. Common of pasture the right of one to de- pasture on the soil of another, either an agreed number of animals, or so many as can be supported in the winter by the produce of his own land, [b) "Z. (Juininon of estovers; [estouffer, to furnish.] The right of one to take for the use of his tenement, from the woods, or waste lands, of another a portion of his timber, or under- wood. (i) House bote, for the repair of the house, and for fuel, (ii) Plough bote, for the repair of instru- ments of husbandry, (iii) Hedge, or hay^ bote, for the repair of fences. 3. Common of turbary. The right of one to take for fuel in his house, peat or turf from the wastes of another. 4. Common of piscary. The right to take, and carry away, fish from the waters of another. (a) Bennett v. i?eere, .Willes, 231, and Co. Litt. I22a. {h) Co. Litt. 122a. SERVITUDES. 181 5. Common of diyijimj. The riglit to go upon tlie land of another, and dig for, and remove, sand, gravel, clay, minerals, &c., &c. Profits X prendre in gross. That is, j^erso^ia/ privi- leges of coming upon, and taking a profit out of, the land of another. [Note 1. They are created. 1. By grant, or reservation. 2. By severance of an appurtenant right to take a certain fixed profit, from the land with which it is held. , [Note 2. Incidents. 1 . The right is not accessorial to the use and enjoy- ment of any dominant tenement. 2. If assigned, does not bind the servient tenement. {Exception . By the custom of certain manors in the North of England, the customary tenants have rights of sole and separate pasturage, called " cattlegates," and " cowgrasses,'^ which are assignable though held in gross.) 3. Cannot be claimed under the Prescription Act, (See post p. 189.) J (a) Common of pasture. (^•) Common of estovers. (r-) Common of turbary. [Note. As a rule rights of estovers and turbary are only appurtenant to some house. But where the right granted is to take a fixed and limited quantity, it may be severed, and becomes a right in gross, j (^•) The right of sporting and fishing ; («•) The right of digging and removing satid, gravel, clay, minerals, Sfc, &^c. 182 RUBRIC OF THE COMMON LAW. Conventional Servitudes are claimed by virtue of. L An express grant. That is, the right to enjoy the privilege must be given to the grantee, or reserved to the grantor, by an instrument under seal. § Anything short of this, whether in writing or by parol, is merely a "license,'^ and excuses a trespass but confers no right. IllustraHon. Hewlins was tenant of the "Swan Inn" at Chichester, and his landlords, on re-building the inn, agreed with the landlord of one Shippam, who occupied the adjoining premises, that they would pave Shippam's yard if they might be allowed to construct a drain underneath it for the use o£ "The Swan." The drain was made and the yard paved, and after- wards Shippam stopped up the drain. In an action of trespass by Hewlins against Shippam for so doing, it was held that the right to have the drain under Shippam's yard, not having been given by deed, could * not be maintained, and that Shippam had not been guilty of a trespass in stopping it. (a) [Note. A servitude may however be created by devise, [b) 2. An implied grant iu the following cases. (i) Where a man has made the enjoyment of one portion of his property visibly dependent on another portion, then ("■) If he parts with the dominant tenement, he impliedly grants along with it the easement apparent, as accessorial. lUnMration. i^ 1737 one McCaa owned a house and garden, and also some adjoining land, on which he made a tanyard, and a drain from the (a) Heivlins v. Shipixim, 5 B. & C. 229. {h) Phesey v. Vicanj, 1(5 M. & W. 484. SERVITUDES. 183 tanyard into a cesspool in the garden. McCaa sold first the tanyard^ and then the garden; and by divers mesne assurances the tanyard became the property of William and John Cochrane, and the house and garden of one Ewart. Ewart stopped up the drain in the garden, and the Cochranes brought their action. The House of Lords held, that an implied grant of the easement passed to tlie Cochranes. (c) (/3.) But if he parts with the servient tenement, he cannot derogate from his own grant, and so cannot im- pliedly reserve any easement over it in favour of the dominant tenement remaining in his possession. Illustration. Knox from 1841 to 1845 owned a dry dock, and a coal wharf adjoining; during which time the bowsprits of vessels, repairing in the dock, used to project some fourteen feet over the wharf. In 1845 Knox sold the wharf to Brown, without any express reservation. In 1846 he let the dock to Mills for 21 years; and in 1861, sold it, subject to the lease, to Suffield. During all this time, also, the bowsprits used to project as before. In 1861 Brown proceeded to build warehouses on the wharf; and Suffield prayed for an injunction against him to restrain him from so building, as to interfere with the bowsprits. The injunction was refused, {d) (ii) Where a man grants land, to which there is no access, except over his own land, he impliedly grants also " a way of necessity " over his own land, which will continue so long as the necessity lasts. Illustration Davies was assignee of a building agree- (c) EvMTt V. Gochmiw, 4 ^lacij. 117. {d) Suffield v. Brown, 33 L. J. Cb. 258. 184 EUBEIC OF THE COMMON LAW. ment with Eton College^ by whicli it was agreed that tlie builder should erect on some land at Hampstead^ belonging to the college, two rows of houses back to back, between which should be certain mews ap- proachable only through an archway in one of the rows of houses ; and on the completion of each house the college should grant a lease of the land and house to the builder. When the builder had completed the house, under which was the archway, wherethrough the mews were to be approached, the college granted him a lease, which he assigned to Sear. No reservation of a right of way under the archway was mentioned. When tlie buildings were all completed, and the mews consequently surrounded. Sear stopped up the archway. And on Davies removing the obstruction, brought an action of trespass against him. Davies applied for an injunction to restrain Sear from stopping up the arch- way, and it was held, that there was an implied reservation in the lease to Sear of a right of way, being a way of necessity, under the archway to the mews. («) (iii) Where a man sells land for building he impliedly also grants a right of lateral, and (if he reserves the minerals) of vertical, support from his own land, sufficient to sustain the grantee^s buildings. Illustration. The Leeds and Selby Railway Company bought of oue Hall, the right to make a tunnel through a certain portion of Hall's land ; the right to dig for minerals in the land, through which the tunnel was to go, being reserved to Hall. Hall sold his land to Crossland ; who proceeded to work the minerals : but, on its appearing that such working woidd be dangerous to the tunnel, the North Eastern Railway (a) Davies v. Se(u\ L. E. 7 Ei|. 427. SERVITUDES. 185 Company, wlio had purchased the Leeds and Selby line, obtained an injunction against Crossland, restraining him from digging for minerals ; as it was not com- petent for the vendor so to use his land, as to destroy the object for which alone the sale of the land was made, {b) (iv) Where a man has built houses alongside of each other, or one upon another, so that each house requires, and receives, the support of the house next to, or below, it ; and parts with the possession of each of the houses to different persons; each adjoining, or each super-imposed house, has an implied right of support from the next adjoining, or subjacent, house. Illustration. Halliday sold tAvo houses, Nos, 5 & 6, in the same street, the one to Richards, and the other to Rose. Rose in executing some necessary work to the drains of her house caused a settlement in the wall of Richards^ house. In an action by Richards it was held, that where houses were so erected, as to require mutual support, there is by implied grant or reservation, a right in each house to such mutual support, (c) 3. A LOST GRANT. That is to say, when the use has been enjoyed " from time immemorial/' the law presumes that a grant has been made at some remote period, of which all trace has disappeared. § In order to support a claim to a lost grant it is essential, that (i) The enjoyment should have been exercised notoriously. Illustration. Solomon owned Nos. 2 & 3, Pilgrim Street, Ludgate Hill. No. 1 belonged to Sir John Prior : next to No. 1, came a corner house. (//) North-Eastern liailvaij CoinpaHij v. CrosalamJ, 32 L. J. Cli. 358. (f) Ricluirds v. Rose, 9 Ex. 221. 186 EUBEIC OF THE COMMON LAW. No. 13, Broadway, belonging to the Vintners' Company. Pilgrim Street sloped towards the junction with Broadway ; and for 30 years Nos. 1, 2 & 3 had been out of the perpendicular ; No. 3 appearing to lean on No. 2 ; No. 2 on No. 1 ; and No. 1 on No. 13, Broadway. The Vintners' Company pulled down No. 13, Broadway, the result of which was, that Sir John Prior's house fell ; and also the two houses of Solomon. In an action by Solomon against the Vintners' Com- pany it was held, that no grant could be presumed in favour of the Plaintiff's houses ; for a claim as of right must not be acquired by stealth ; and here, though a guess might have been made, there could have been no certain knowledge by the Defendants, that the Plaintiff's house was being supported by them, [a) (ii) Adversely, as a matter of right. Illustration. Tickle claimed a right of way over certain land of Brown, and sent his servants across the land wdth a horse. Brown forcibly prevented the passage of the servant. In an action brought by Tickle for the trespass, and alleging a right of way, the defendant sought to ffive evidence at the trial that the land was from time to time under tillage, and that permission was from time to time given to parties desirous to cross Brown's land, in order to show that the user of the land was not " of right," but under leave given. It was held by the court that such evidence was clearly admissible to show the absence of the right, {b) (a) Solomon v. The Vintners' Company, 28 L. J. Ex. 370. (6) Tickle v. Brown, 4 A. & E. 369. SEEVITUDES. 187 (iiij Exercised witli the knowledge of the oivner of tlie servient tenement. lUuslration. Daniel occupied a house in Stockport, and threw out windows therein in 1787^ overlook- ing a low adjoining building, in the occupation of one Ashgrove as tenant to Sir G. Warrender. After the lapse of more than twenty years, North, Ashgrove's successor, raised this low building so as to block Daniels^ windows. In an action by Daniels for the obstruction to his lights, no evi- dence was given at the trial that Daniels had enjoyed the access of the light during the twenty years with the knowledge of the 7'eversioner, Sir G. Warrender, and the court held that in the absence of such evidence there could be no pre- sumption of a grant of the light against the party capable of making the grant, (c) \ As to the acquisition of the right to the enjoy- ment of light under the Prescription Act, see post, p. 190. (ivj The enjoyment should have been continuous. Illustration. Onley owned two closes, the " Click Head Meadow,^' and the "Rock Hill Colts.'' Gardiner owned an adjoining close called the " Click Head Coppice.'' He claimed a right of way, for twenty years, from his own close, over Onley's two closes, to the high road. It was proved at the trial, that the " Click Head Coppice " had, about forty years before action, been a hojjyard ; and that the hops and hoppoles used to be carried, from time to time, from the yard to the high road, across the two closes. It was also proved that at a time, some fifteen years before (c) Daniel v. Xorlk, li East, 372. 188 EUBRIO OF THE COMMON LAW. action^ all the tliree closes had been in possession of the same owner. The court accordingly held, that as during the time of unity of possession there was no person who could complain of the user of the right of way, there was no continuous adverse user, as of right; and that no grant could therefore be presumed, {a) (v) Uninterrupted. |lnterruptions are usually either of a physical character, as the erection or closing of a gate ; or a prohibition of the user, acquiesced in. For such an interruption as will defeat a claim to a right of way under the Prescription Act, see post, p. 193. 1 (vi) The user must have been capable of interruption. Illustration. Webb owned a windmill, and Bird built a school-house and premises on the west side of the mill, Avhich obstructed the currents of air blowing from the west towards Webb^s mill. He sued Bird for obstructicg these currents of air, to which he claimed a right of user for twenty years. The court held, that no such claim could be supported as it was impossible for the adjoin- ing owner, over whose land the right to have the passage of the air was claimed, to use any means of interruption, whereby he could prevent Webb from acquiring a right by user, [b) (vii) The enjoyment has been '' from time immemoriali^^ [Note. This is professedly a period extending from the beginning of the reign of Richard I. A.D. 1189. But in practice the judges have directed juries to jore^wme "immemorial usage,'' if the user is shewn to have existed for twenty years before action. ! (a) Onlcij v. Gardiner, 4 M. & W. 496. {h) Webb V. Bird, 10 C. B. N. S. 268. "'' ^ . - 0~ SERVITUDES. 189 § Evidence rebuttiny the premmption of a grant can be given ^yj stewing that no grant could ever have been made. Illustration. Barker had a house at Norwich^ the win- dows of which had for more than twenty years over- looked some glebe land belonging to the rectory of St. Edmund. Six years before action the rector had^ with the consent of the bishop^ conveyed the land to Richardson^ Avho built on the land^ and obstructed Barker's windows. It was held that the enjoyment for twenty years could not in this case give a right to the user of the lights as there was no one during the time capable of making a grants the rector for the time being, being only a tenant for life, and so no grant could be presumed, [c] 4. The Prescription Act, 1832, [cl) which was passed in order to give the sanction of the legislature to the practice of the judges mentioned above (p. 188 (vii) note). § The effect of the Prescription Act is — (i) That '^time immemorial '' is cut down. ("•) In the cases of profits a prendre, appurtenant and appendent ; To thirty years, (e) (^•) In the cases of rights of way, and watercourse, and of easements, ejusdem generis. (/) To twenty years, [g) (ii) An absolute right is given, on proof of actual enjoyment, (unless a license, in writing, for tlie user is shewn.) (c) Barker v. Richardson, 4 B. & Aid. 579. ((?) 2 & .3 Will. 4, c. 71. (e) Ibid. s. 1 and prcanihlo. (/) See JVchb V. Bird, 10 C. B. N. S. 2fi8 ; 13 C. B. N. S. 841. (g) 2 & 3 Will. 4, c. 71, preamble, and s. 2. 190 EUBRIC OF THE COMMON LAW. (((1 In the case of profits a prendre, appurtenant and appendent ; For sixty years, {a) (p) In the case of rights of way, and watercourse, and of easements, ejusdem generis, (except the use of light) ; For forty years, {b) (r) In the case of the use of light ; For twenty years, (c) (iii) The Prescription Act applies only when the claim is made, [d] (a-) By custom. (^•) By prescription, (y.) By grant. (^■) As accessorial to the use and enjoyment of land. [Note. Subject to the above, all the essentials to a claim by prescription at conwion law (that is by virtue of a lost grant) must exist, for the support of a claim under the Prescription Act (see a?ite, p. 185), with the exception of a claim to the user of light, which need not be made " as of right." (e) , 5. By custom. The privilege of going upon the land of another under a custom must be claimed, not through any individual right, but as a member of a particular class of persons. § The custom must be — * (i) Certain. (ii) Reasonable, (iii) Claimed as of right. (a) 2 & 3 Will. 4, c. 71, s. 1. {h) Ibid. s. 2. (r) Ibid. s. 3. (r?) 2 & 3 Will. 4, c. 71. (e) Truscottx, The Merchant Taylors' Company, 11 Ex. 855. SEEVITUDES. 191 [iv) From time immemorial. (v) By a particular class of persons. Illustration . Tyson occupied certain waste land of the Manor of Westward^ in Cumberland; on wliicli, twice in the year^ was held a fair. At the time of the fair Smithy a victualler, claimed by virtue of an ancient custom in favour of victuallers, to erect a booth, stall, and other things on Tyson's land, paying %d. to the lord. Tyson brought an action of trespass against him ; and Smith pleaded the custom as a defence. The court held it a good custom. (/) [Iv'oTi.. A profit a prendre lies only in grant; and cannot be claimed by custom, in favour of a particular class of persons, as the right cannot vest in a fluctuating body. Unless the right is claimed by virtue of a grant from the Crown. In which case the law will presume that the Crown formed the particular class into a corporation, for the purpose of receiving the grant. Illustration. A grant from the Crown by charter (which was lost, but of the original existence of which it was alleged on the argument there was evidence,) to the in- habitants of Loughton in Essex, a Crown manor, that the poor people inhabiting the parish, and having families, might, during a certain period every year, cut or lop the boughs and branches, above seven feet from the ground, on the trees growing on the waste lands of the manor and parish of Loughton, for their own use and consurap- (/) Tijsoti V. Siiuth, G Ad. & E. 745. 192 EUBRIC OF THE COMMON LAW. tion^ and for sale, for their own relief, to all or any of the inhabitants for their consumption within the parish as fuel, was held to be valid. («) § Exceptions — (i) Rights of common, claimed by the copyhold or customary tenants of a manor over the lord's demesne, on the condition of rendering certain services. (ii) Stannary rights in Cornwall by which tin- bounders are entitled to dig for tin on the lord's waste, on payment of a small royalty.] Conventional Servitudes are Extinguished. 1. By unity of ownership, the lesser right being merged in the greater, [b) 2. By release under seal. 3. By an act of notorious abandonment. Illustration. Moore had a house, yard, and garden at Ripley in Derbyshire. At the end of the garden and abutting on land of Rawson, there had formerly been a weaver's shop with an ancient window overlooking Rawson's land ; and seventeen years before action Moore had pulled this building down, and built a stable on the site of it, with a blank wall where the ancient window used to be. Three years before action Rawson erected a building, next to this blank wall; and Moore then opened a window in the blank wall, where the ancient window used to be ; and sued Rawson for obstructing his ancient light. It was held that Moore had by his conduct evinced an intention of (a) Willingah v. Maitland, L. R. 3 E(|. 1(13. (h) Surey v. Piggot, Palmer 444, SERVITUDES. 193 not resuming the right, which he had ceased to enjoy ; and that he must be taken to have abandoned it. (c) 4. ^y forfeiture, if tlie right is liekl conditionally, and the condition is broken. Illustration, Cawkwell had an undisputed right to pour his surface water into Russell's drain. He chose also to conduct into it the foul water fi'om his privies. Russell upon this cut off the connection with his drain altogether. In an action by Cawkwell it was held that the defendant was entitled to prevent the plaintiff from using the drain at all, so long as he continued to pour foul water into it. (d) 5. By an interruption (e) where the claim is grounded on enjoy- ment under the Prescription Act. ( f) (ij For one year ; (ii) Acquiesced in or submitted to ; (iii) After notice. [NoTK. I"^^ order to rebut evidence of submission^ it is enough to show that the party interrupted has in a reasonable manner communicated to the party causing the interruption that he does not really submit to, or acquiesce in, it. {g) i (c) Moore v. Bawson, 3 B. & C. 332. (d) Cawkwell v. Russell, 26 L. J. Ex. 34. (e) [NoTK. Strictly speaking, an " interruption" of the above character is only an answer to a claim under the Prescription Act. But substantially a bond fide right claimable under the Prescription Act which has been thus " inter- rupted " becomes absolutely extinguished, j (/) 2 & 3 Will. 4, c. 71, s. 4. in) Glover v. Coleman, L. 11. 10 C. V. 108. 194- EUBEIC OF THE COMMON LAW. CHAPTER II. WASTE. § Waste {vaslum) is lasting damage done to corporeal heredita- ments to the injury of the remainderman or the reversioner. 1. Commissive waste is the doing of active, wilful, damage to the premises, as by pulling down a house, opening hitherto unbroken ground for clay, gravel, minerals, and the like. 2. Permissive waste is where premises are allowed to fall out of repair without any effort being made to retard their deterioration. § Persons liable for waste (both commissive and per- missive.) (i) Tenant by the courtesy, {a) (ii) Tenant in dower, (a) (iii) Guardians, (a) (iv) Tenant for life, {b) (v) Tenant pur autre vie. {b) (vi) Tenant for years, {b) (vii) Assignee of tenant for life or years, [c) [Note. The reason tenants for life, autre vie, and years were not liable for waste at common law, was that their interest is created by their grantor, who, if he had chosen, could have pro- tected the reversion by the terms of the grant, («) By the Common Law. {},) By the Statute of Marllmdge, 6 Ed. 1, c. b. (0 Cro. Eliz. 683. WASTE. 195 [I and the common law only gave a remedy where the estate was conferred on the tenant by the act of the law itself. 3. Equitable waste. Where the grant is made '' without im- peachment for waste; " that is, wliere the grantor has in terms excepted the tenant from the statutory liability, the court will still restrain tLe tenant from doing acts of wanton and malicious waste to the premises. Illustration. Lord Barnard, tenant for life of a settled estate sans ivaste, having quarrelled with his eldest son, got 200 workmen together, and of a sudden, in a few days, stripped Raby Castle of the lead, iron, glass- door.s, and boards, &c., &c., to the value of £3,000. The court, upon the filing of a bill by the son, granted an injunction, {d) h Fixtures. I^ ^ tenant for life, or for years, removes fixtures to which he has no right, an act of waste is committed, I. Lanl>lohu's Fixtukks. \ Those upon the premises at the time of the demise. 2 Those erected by the landlord during the demise. 3 Those so erected by the tenant during the demise, as to become part of the freehold. II. Tenant^s Fixtures \ Those which have been erected by the tenant, (i) For purposes of trade. Examylea — (a.) '^ Mules " 5C7'e2«;ec^ into the floor, (e) t^\ Barns, granaries, sheds, mills, resting on pattens, plates, brickwork, but not let into and united with the soil. (/) (y.) Vats resting on brickwork and timber, {g) {(I) Lord Vane v. Lord Barnard, 2 Vern. 739. (e) Helhm-ellv. Eastn-ood, 6 Ex. 312. (/) Huntley v. Rmsell, 13 Q. B. 572. (g) Horn v. Baker, 9 East 215. o2 19 G EUBEIO OF THE COMMON LAW. {^■) Iron saltpans, let into a brick floor, with furnaces under them, {a) (*• ) A steam engine for working a colliery, (b) (^•) Brewing vessels, and the pij)es in the walls connected therewith, {b) (ii) For ornament or convenience. Examples — - («•) Hangings and pier glasses, {c) (/3.) Cornices, (rf) (r-) Ornamental chimney pieces, (e) (^- ) Wainscot fixed to the wall by screws. (/ ) («•) Grates, ranges, and stoves. (/) (^.) Pumps, (g) (»;•) Bookcases and cupboards screwed to the walls. (//) (^•) Furnaces and coppers, (i) 2, Farm buildings, engines, and machinery, which have been erected by the tenant, (i) For agricultural purposes, (ii) For purposes of trade and agriculture, (iii) After notice in writing to the landlord. Provided— ("•) TJie severance does not materially injure the freehold. (^•) A month^s notice to elect to pnrchase is given to the landlord, (k) (a) Lawton v. Salmon, 3 Atk. 15?!. (h) Lawton v. Lawton, 3 Atk. 3. (c) Beck V. Rehoiv, 1 Ps. Williams, 94. (d) Avery v. Cheslyn, 3 A. & E, 75. (e) Bishop v. Elliot, 11 Ex. 115. (/) Lee V. Risdon, 7 Taunt. 191. ((/) Grymes v. Boioeren. 6 Bing. 437. (/(,) Birch v. Dawson, 2 A. & E. 37. (i) Squier v. Mayer, 2 Freem. 249. {h) 14 & 15 Vict. c. 35, s. 3. WASTE. 197 3. EngiueSj macliiueiy^ and other fixtures, affixed by a tenant to liis liolding, erected under a tenancy to which the Agricultural Holdings Act, 3875, applies. (/) Provided — (i) All obligations to tlie lessor have been per- formed by the tenant ; (ii) No avoidable damage is done ; (iii) All damage occasioned by the removal is made good ; (iv) One month's notice in writing is given to the lessor, to elect to purchase the fixtures ; (v) That, in the ease of a steam engine, prior to its erection, («•) The tenant had given notice in writing to his lessor, of his intention to erect it ; (^•) The lessor had not objected to its erec- tion by a notice in writing, (/) § The right of removal is a question, which arises between 1. The heir and the executor of the tenant for life; 2. The remainderman and the executor of the tenant for life; 3. Landlord and tenant. [Note. § The general rule is, that whatever has once been affixed to the freehold cannot be severed there- from. § This rule has, from time to time, been relaxed; especially between landlord and tenant. § The law shows a less degree of favour to the freeholder in the 3rd class, than in the 2nd ; and in the 2nd than in the 1st. § The relaxation has been made, principally, in favour of articles erected by the tenant for trade (Z) 3a & 30 ^'ict. c. 92, s. 03. 198 RUBRIC OP THE COMMON LAW. purposes : and has been extended to articles o£ ornament^ which can be severed without materially injuring the freehold,] § The right of removal exists only during the continuance OF the term, and until the tenant gives up posses- sion ; upon which a presumption of law arises that they are a gift in law to the reversioner. («) (a) Penton v. Rohart, 2 East 88. TEESPASS TO LAND. 199 CHAPTER III. TRESPASS TO LAND. § A TRESPASS TO LAND is Committed, where one enters upon land in the occupation,, or possession, of another without lawful excuse. § An entry will have been made, and a trespass committed, 1. If a man walk upon the land. 2. If he throws stones, rubbish, &c., upon it. 3. If he allow water, filth, &c., to be discharged thereon. 4. If he suffers his cattle, poultry, or domestic animals, to go thereon. § Lawful excuses. 1. Where the entry is made with the leave of the occupier. [Note. Where the license or other lawful excuse is departed from, a trespass will have been com- mitted ab initio, {b) Illustration. Watts was bailiff to Lord Dart- mouth (Lord of the manor of A.), and impounded a horse, which was an estray. After impounding the horse, he worked it, which was, admittedly, an unlawful act. It was held that he was a trespasser ab initio, (c)] ~. Where made upon unenclosed land adjoining a high- way, in order to drive off cattle, freshly straying thereon, {d) {h) See the Six Carpentei>)' Case, 1 Sin. L. C. 7tli cd. vol. 1, p. 133. (c) (Jdey V. Watt, 1 T. R. 12. {d) Goodtoin v. Clievelerj, 4 H. & N. 031. 200 EUBKIC OF THE COMMON LAW. 3. Where made to recover chattels, improperly removed thither, by the owner of the land, (a) 4. Where made in order, (ij To escape pressing danger, {b) (ii) To prevent a murder. (^ Where one man by want of proper care in the management of his landj or the buildings thereon, causes injury to the person or property (real or personal) of another, he is liable in damages to that other. For example—^ 1. Where he overloads the floor of a warehouse, so that the floor falls on, and damages the goods of another, which are in the room beneath. («) 2c Where he makes an excavation in his land ^vithout due care, which causes a building on adjoining land to fall, [b) 3. Where a railway company leave open their gates on a level crossing, through which cattle* stray on to the line, and are injured, (c) Unless the party injured was himself negligent, and by his own conduct contributed towards the happening of the mischief [see post, Part IV. Chap. L] § Fire. At common law every person who lights a fire on his own premises, is responsible for its safe keeping. Unless. 1. The fire is spread by the act of God. 2. The fire begins accidentally, [d] (a) Echcards v, Halinder, Popli. 46. (b) Trower v. Cliadinrk, 3 Sc. 722. (c) Fmvcett v. Midland Railway Company, 16 Q. B. 618. \d) 12 Geo. 3, c. 73, s. 37 ; 14 Geo. 3, c. 78, s, 86. OF THE NEGLIGENT USE OF EEAL PROPEETY. 209 [Note. Accidental/;/ means — (i) Originating through mere ehancej and without negligence ; or (ii) The cause of which cannot be traced, (e) ] [As to the spreading of fires from locomotive engines_, &c., see jjost, Part VII. (c) PiUifer v. Phipimrd, 11 Q. B. 357. 210 EUBRIO OP THE COMMON LAW. PART III. or THE INPKINGEMENT OP THE EIGHTS OP OWNERS OP CHATTELS. CHAPTER I. TRESPASS AND CONVERSION. I. Trespass to chattels is the wrongful intermeddling witli the goods of another, to which that other has a present right of possession. Illustration. Upon the Custom House Quay there was a hut_, in which certain porters each had a box, where they could deposit parcels, until a ship was ready to receive them. Bushell, a porter, put in certain goods, and so deposited them as to block the opening of the box of Miller, another porter. Miller, in order to get at his box, moved BushelFs parcel about a yard to- wards the door, and did not replace it. The goods in consequence were lost. Bushell sued Miller for aeon- version of the goods. But the court held that there was no conversion, tliough if he had brought trespass he might have recovered, (a) II. Conversion is the unauthorized disposal of the chattels of another, by which that other, having a present right to them, is deprived of the same. § Such unauthorized disposal may be exercised by — 1. The taking or using the chattels. (ft) BusMl v. Miller, 1 Str. 128. TEESPASS AND CONVERSION. 211 (i) For the benefit of the wrongdoer himself. (ii) For the benefit of a third person. Illustration. One H, K. Bailey^ falsely pretend- ing that he was buying for one Seddon, obtained from Fowler & Co. delivery of thirteen bales of cotton^ of the value of £244 19^. 8^/. Bailey sold the cotton to and received the price from Hollins & Co., cotton brokers, who sold it to Nicholls & Co., by whom the cotton was spun into yarn. On discovering the fraud of Bailey, Fowler & Co. sued Hollins & Co. in trover for the cotton, and the court held that they were liable for the conversion, {b) . By the consumption, destruction, or material altera- tion of the chattel. Illustration. Atkinson drew some of the contents out of afvessel containing liquor, the property of Richardson, and filled it up Avith water. In an action of trover it was held that this was a con- version of all the contents of the vessel, (c) . By an unqualified refusal to deliver up, after demand, what has lawfully come into the possession of the wrongdoer. Illustration. Baldwin was a journeyman carpenter, who was sent by his master to work for hire in the Queen^s yard. On his declining to go to work any longer, the surveyor of the works re- fused to allow him to remove his tools, pretending a usage to detain them, to enforce M'orkmen to continue until the Queen's work was done. In an action of trover for the tools, this was held to be an act of conversion, [d) (6) Foiiier v. Hollins, L. R, 7 Q. B. 616. (c) Richardson v. Atkinson, 1 Str. 576. (/) Baldwin v. Cole, 6 Mod. Re'p. 212. p2 212 EUBRIC OF THE COMMON LAW. 4. By exercising a dominion over the goods, which is inconsistent withtlie dominion of tlie owner at all times and places. Illustration. Hiort & Co., of Hull, corn merchants, were in the habit of employing one Grimmett as their broker. Grimmett, with a view to commit a fraud, directed Hiort & Co. to send to Bott of Birmingham, a delivery order for certain barley (which he pretended to have sold to Bott), making the barley deliverable to the order of the con- signor, or the consignee, and to forward the barley by the London and North Western Railway. Hiort & Co. followed their broker^s directions ; and the latter then went to Bott, and told him that the delivery order had been sent to him by mistake, and induced him to indorse it to him, Grimmett, Hiort & Co.^s agent, " in order to save expense," Bott believing he was taking the best step to secure a return of the barley to Hiort & Co. Grimmett then obtained delivery , i ^V' of the barley, sold it, and absconded. In an action of trover for the barley by Hiort & Co., against Bott, the court held that there had been a conversion by the latter, and that he was liable for the value of the barley. («) v^ § The act of conversion cannot be purged. Illustration. Hiort & Co. from time to time forwarded large quantities of grain by the London and North Western B-ailway to their own order at the company^s goods station at Birmingham. On 24th November, 1872, the company received a delivery order of Hiort & Co. for sixty quarters of oats in favour of George Tarpler^s order. Tarpler had indorsed it in favour of George (a) Hiort v. Bott, L. E. 9 Ex. 86. TRESPASS AND CONVERSION. 213 Grimmett. On November 22nd, 1872, two days before, Grimmctt had fraudulently induced the company tf) deliver to him sixty quarters of oats, which he had realised. The company, therefore, though they had improperly delivered the sixty quarters of oats to Grimmett on the 22nd, would in two days time have been bound to do that very thing on the receipt of the delivery order; and Hiort & Co. suffered no damage. Tarpler was credited with the oats, but was unable to pay ; and Grimmett had absconded. Hiort & Co. accordingly sued the company for a conversion of the oats ; and the court held, that the right of action having once vested by reason of the predelivery, it could not be divested by the subsequent receipt of the delivery order. But that the company was liable for nominal damages, {b) § The innocent finder of k chattel is entitled to the possession of it against all the world, except the true owner ; and may sue in trover, if wrongfully deprived of it. Illustration. Armoury was a chimney-sweeper^s boy, who found a jewel. He took it to Delamirie^s (a gold- smith) shop, to learn what it was, and handed it to an apprentice. The latter on pretence of weighing it, took out the stones, and called to his master to tell the boy the value was \hd. The boy refused the money, and demanded the jewel. The apprentice handed him the socket only. The boy brought an action of trover for the jewel ; and it was held that he was entitled to maintain it. [c) [ See also the chapter on the sale of goods : ante, p. 53] {Ji) Hiort V. London and North Western liuiltraii Company, 4 Ex. D. 188. (c) Arinuurij v Delamirie, 1 Str. 504. 214 EUBEIC 0¥ THE COMMON LAW. CHAPTER II. WRONGFUL DISTRESS. [For the nature of a distress, see ante, p. 169. ] A DISTRESS WILL BE WRONGFUL IN THE FOLLOWING CASES : 1 . Where there is no tenancy existing between the distrainor and the person whose goods are distrained. For instance. Where there has been a supposed tenancy, but the lessor has had no title to grant a lease. [Note. Or, at common law, when the term had ex- pired. But tbis was remedied by 8 Ann c. 4, ss. 6, 7 , under which the landlord is empowered, where a tenant is holding over, to distrain within six months of the expiration of the lease, for rent due before the end thereof. 2. Where there is no fixed and ascertained rent. 3. When the reversion is not in the distrainor. For example. If the original lessor has assigned his reversion, his right to distrain is gone. 4. If the landlord has already distrained for the same rent. Unless — (i) He had at the tenants^ request withdrawn from possession. («) (ii) There has been some mistake as to the value of the things taken, {b) (ill) The distress has been rendered abortive through the tenant's threats, (c) ((() JJ^oiiaston v. Stafford, 16 C. B. 278. \h) Uutchins v. Chambers, 1 Burr. 579. (c) Lee V. Coohc^ 3 H. & N. 203. WEONGFUL DISTRESS. 215 5. It" no rent is due. [Note. In this case the landlord is liable to an action for double the value of the goods distrained. {d)\ 6. Where there is a valid agreement not to distrain, [e] 7. Where the rent due has been tendered before the distress. (/) 8. If made on the day on which the rent is due. [g] 9. If the entiy is made by forcing the outer door, or opening the window, [h] 10. If made before sunrise, or after sunset, (i) 11. If made on land other than that from which the rent dis- trained for issues. Unless — (i) The goods have been fraudulently removed on to it, after the rent has become due, in order to defeat the distress. [Note A In which case the landlord may within thirty days follow and distrain the goods wherever they may be found. Provided they have not been bought by a bond ■ fide purchaser, (/c) ', [Note 2. In the Metropolitan Police District, a constable may stop, and detain, vehicles, which he may find removing goods, under sus- picious circumstances. (/) (ii) Cattle are distrained, while lawfully depastured on common appendent, or appurtenant, (m) {d) 2 W. & :\I. c. 5, s. 5. (e) Hor.'iford v. JFehster, 1 C. M. & R. 696. (/) Bennett v. Bayes, 5 H. & N. 391. (g) Duppa V. Mmjo, 1 Saund. 287. \h) Nash V. Lucas, L. R. 2 Q. B. 590. (t) Co. Litt. 142a. Ik) 8 Aim. c. 14, s. 2 ; 11 Geo. 2, c. 19. s. 1. (0 2 & 3 Vict. c. 47, s. 67. (//() 11 Geo. 2, c. 19, s. 8. 216 EUBRIO OF THE COMMON LAW. (iii) Cattle are seen to he driven off the demised pre- mises^ iu order to defeat the distress, [a] 12. Where the distress is unreasonable, or excessive, [b) 13. Where made in the king.^s highway, or in the common street, (c) 14. Where the chattels taken are not liable to distress, viz. : (i) Tenants' fixtures, unless attached only by bolts and strews, {d) (for they are annexed to the freel.old) . (ii) Beasts, which profit the land. Provided that other distress can be found, suffi- cient, (e) (iii) Implements of husbandry, or instruments used by a man in following his calling. Provided that other distress can be found, suffi- cient. (/) (iv) Wearing apparel, and chattels in actual use (for the taking of them might lead to a breach of the peace). (/) (v) Perishable articles [for they cannot be returned in their original state to the owner : and a distress is in the nature of a pledge.] (/) (vi) Growing trees, shrubs, plants, &c. [g) [Note. But growing crops; and corn, straw and hay, which has been cut, may be distrained. {h)\ (vii) Loose money [for it is impossible to ear-mark it], (viii) Title deeds [for they partake of the nature of the freehold] . (ix) Animals /erte naturce. (/) {a) Co. Litt. 161«. Qj) 52 Hen. 3, c. 4. Statute of Maiibridge. (c) Ibid, c. 15. (f?) Co. Litt. 476. (t) 51 Hen. 3, c. 4. (/ ) Co. Litt. 47a. ((/) Clark v. Calvert, 3 Moore, 96. (/() 11 Geo. 2, c. 19, s. 8. WRONGFUL DISTRESS. 217 (x) The goods of another left ex necessitate on the premises [n.j In the ordinary course of trade; or {P-\ To be Avorked upon by the tenant, [i] (xi) The goods of a lodger, {k) (xii) The goods, and beasts, of a guest at an inn. (/) (xiii) The goods of an ambassador, {m) (xiv) Goods in custodid legis. [n] (xv) Railway rolling stock, when on hire, (o) (xvi) Gas metres, belonging to a gas company incorpo- rated under an Act of Parliament, {p) [ Subject to the above exceptions all goods, and animals, found on the demised premises, may be lawfully dis- trained, no matter to whom belonging.| Remedies. I, An action for trespass, and the conversion of the goods. II. An action for doi,uble the value of the goods distrained in cases where 1 . There is no rent in arrear, and 2. The goods distrained upon have been sold, {q) III. An action of replevin [7'eplegiare, to receive again on giving a pledge] , where the tenant desires a return of the goods themselves. § This is an action to try the right to the goods, the tenant receiving them back, pendente lite, upon giving security for their value, and for costs. [Note. The course of procedure in replevin i« nx folloivs : — The tenant at any time after seizure, and {%) Swire \. Leech, 18 C. B. N. S. 479 ; Co. Litt. 47((. (A) 34 & .35 Vict. c. 79. {I) Crodcr v. TomJdnson, 2 Ken. 439. {m) 7 Ann. c. 12, s. 3. (n) Whartuii v. Niujlor, 12 (,). B. 673. (o) 35 & 36 Vict. c. 50, s. 3. (V) 10 & 11 Vict. c. 15, 8. 14. {q) 2 W. & M. c. 5. s. 5. 218 EUBEIO OP THE COMMON LAW. before the goods have been sold^ may apply to the registrar of the county court of the district,, in which the distress has been made^ for the return of the goods taken. The registrar will then restore (replevy) them to him^ upon the following terms : {a) 1. That the replevisor (the tenant) will commence, and prosecute, without delay, an action of replevin against the distrainor, to try the right to the goods. (i) If in the county court, within one month, (b) (ii) If in the superior court, within five days, (c) [Note. He is only entitled to siie in a superior court, if he has good grounds for believing — (a) That a question of title is involved, (c) (/3) That the rent distrained for exceeded twenty pounds.] 2. That the replevisor shall, to the satisfaction of the registrar, give security, (i) Either a bond with sureties ; or, (ii) Cash, accompanied by a memorandum of deposit, sufficient to cover the rent alleged to be due, and the costs of the action, {d) 3. If he is unable to make out his claim, he shall return the goods, {e) § If upon the trial of the action the replevisor fails to make out his title to the goods, he will have to return them to the distrainor, (e) § If he wins the action, he will [having already got (a) 19 & 20 Vict. 108, ss. 63, 64. (h) Ibid, s. 66. ((■) Ibid, s. 65. (d) Ibid, ss. 65, 66, 70, 71. (e) Ibid, ss. 65, 66. WRONGFUL DISTRESS. 219 possession of the goods] , only be entitled to recover the expenses of the replevy. § And as these are usually under £o, he will consequently not be entitled to any costs, either of counsel or solicitor. (/) ] § Avowry and cognisance were, under the old system of pleading, the names of the pleas to a declaration in replevin, confessing and justifying the seizure. 1, The first pleaded by the landlord. 2. The second by the bailiff, who acted under his orders. IV. Summary proceedings within the metropolitan district {g) may be taken on summons before a stipendiary, where — 1 . The tenancy is a weekly or a monthly one ; or 2. The rent does not exceed j615 per annum. § Who has jurisdiction — (ij To ordei^the return of the distress, on payment of the rent due (if any) ; or (ii) If it has been sold, the return of its value, less any sum due for rent ; or (iii) In default of compliance, to impose a fine of not more than jfcl5, to be paid by the landlord to the aggrieved tenant, (A) (/) 9& 10 Vict. c. 95, s. 91. (g) The limits of tlie Metropolitan District ure deliued in tke Scliedule to 10 Geo. 4, c. 44. Qi) 2 & 3 Vict. c. 71, s. 39. 220 RUBEIO OF THE COMMON LAW. PART IV. OF BREACHES OF DUTY IN THE MAXAUEMENT OE CHATTELS. CHAPTER I. OF THE NEGLIGENT USE OF CHATTELS. § Negligence. It is the duty of all persons to use reasonable care, and skill, in dealing witli any chattel : and i£ one is negligent in liis performance of this duty, and mischief or loss ensues to the person, or property [real or per- sonall, of another, he will be ansAverable to that other in damages. For eaample— \. If Smith points a loaded gun, at full cock, towards Jones ; and the gun goes off, and wounds the latter ; ^. If on a dark night, the servants of a railway com- pany pull up a train some yards short of the plat- form, and invite passengers to alight ; so that a passenger, alighting, is precipitated to the ground, and injured ; 3. If Brown drives a cart rapidly in a public street, and so knocks down, and injures Robinson; 4. If Green carries a plank so carelessly, that he runs it through a plate-glass door ; 5. If Grey navigates a vessel so carelessly, that it injures a pier, or a landing stage ; 6 . If Johnson insecurely leans a door against the wall of his house, and the door is blown down by the wind on to Williams, who happens to be passing by and is thereby injured ; OF THE NEGLIGENT USE OF CHATTELS. 221 The party injured, wlietlierin his person, or his property, (real, or personal,) is entitled to compensation from the party guilty of the negligence. § Contributory negligence. If, however, the party injured has, by his own want of reasonable care, contributed to the happening of the injury, then the party guilty of the original act of negligence is absolved. For example — 1. If Jones had persisted in dodging in front of Smith's gun, and daring him to have a shot at him. 2. If the passenger had got out of the train before it had stopped. 3. If Robinson could have got out of Brown's way, had he been looking where he was going. 4. If the plate-glass door was built in a passage, where no one would expect such a thing, and Green was entitled to go down the passage, and no notice was given to him of the position of the glass door. 5. If Grey had been misled by lights improperly exhibited by the owners of the pier or landing stage. 6. If Williams had carelessly stumbled against the door, and helped to bring it down upon himself. Then the parties, who have suffered the damage, are in that position through their own folly, and are not entitled to compensation. § Provided — (i) That the injury resulting is the necessary, ordinary, and likely consequence of the contributory negli- gence. Illustration. Swan owned certain shares in the North British Australasian Company, and also in another Australian Company. He was intending to transfer the latter, and was induced by his broker Oliver to execute a blank transfer. Oliver fraudulently filled in the numbers and 222 RUBEIC OF THE COMMON LAW. description of Swan's shares in tlie North British Company, and effected a sale to a nominee of his own. In order to get the transfers registered, it was necessary to produce to the North British Company's secretary the share certificates. Swan had left these in Oliver's charge, locked in a box, of which he, Swan, kept the key. Oliver, how- ever, got a duplicate key, stole the certificates, and got the transfer registered. Swan after- wards, on discovering the fraud, brought an action against the company for wrongfully removing his name from the list of shareholders. The defen- dants set up a defence of contributory negligence on the part of Swan in executing the blank transfer, by which Oliver was enabled to commit the fraud. But the Court held that the proximate cause of the fraud being successfully carried out, was the felonious act of Oliver in stealing the certificates, and not the negligence of the plain- tiif, and that the latter was entitled to judg- ment. («) (ii) The contributory negligence is such as to preclude the party primarily guilty of negligence from avoid- ing the consequences of such contributory negli- gence by the use of reasonable care. lUvstration. Davies had a donkey which he "hobbled," and turned into the high road. Mann's waggon and horses came along at a smartish pace, knocked down the donkey, and ran over it. In an action by Davies against Mann for the injury done to the donkey, the defendant contended that the plaintiff's negligence in leaving the donkey, hobbled, iu the highway, contributed to the donkey's death. But the court (ft) Sxmn v, North British Australasian Com]}avy, 32 L. J. Ex. 273. OF THE XEGLIGEXT USE OF CnATTELS. 223 held that this was no justification^ if by driving carefully the defendant could have avoided the donkey^ and pulled up in time to let him get out of the way. [b] 3. The act of contributory negligence is an independent actj and not an act resulting in the moment of peril from the original act of negligence. Illustration. "The Princess Alice/' a paddle steamer, coming up the Thames with some GOO passengers on board, was being navigated in a careless and reckless manner. Near Tripcock Point she came into collision with a screw steamer called " The By well Castle.'' Till the moment of the collision the latter Avas not to blame. But just as the two vessels came together, she hard-a- ported ; the consequence of which was that the collision was much more serious, and "The Princess Alice" sank with all on board. "The By well Castle," also, being considerably injured. Cross fclaims being brought in the Admiralty Court by the owners of the two vessels, it was held, on appeal, that if one ship puts another in a position of extreme peril, and that other ship, at such moment, contributes to the mischief, the latter will not be liable; as perfect presence of mind, accurate judgment, and promptitude, under all circumstances are not to be expected, (c) Where an Injury to the Person results in Death. § In all cases where an injury to the person has arisen from 1 . negligence — 2. Iti the management of realty; In the management of chattels ; {h) Davies v. Mann, 10 M. & W. 546. (c) The Byv:ell Castle, 4 P. D. 219. 224 ECTBEIC OP THE COMMON LAW. 3. In the conduct of the person; the right of action at common law lapses with the death o£ the party injured; for " actio personalis moritur cum persona." § But^ by virtue o£ Lord Campbell^s Act, [a] the right of action survives for the benefit of the wife, husband, parent, grandparent,, stepparent, childen, stepchildren, and grand- children of the deceased; and an action will lie against the party guilty of the negligence. Provided — 1. The death was caused by the wilful act, neglect, or default of the defendant. . 2 . The deceased, if he had lived, would have had a right of action for his personal injuries. " 3. The action is brought in the name of the executors or administrators of the deceased. 4. Within twelve months of his decease. 5. Full particulars of the persons for whose benefit the action is brought, are delivered to the de- fendant with the statement of claim. § The liability of shipowners is limited to £15 per ton of THE REGISTERED TONNAGE OF THE VESSEL^ in all CaSCS where loss of life or personal injury has occurred through any wrongful act, neglect, or default, for w'hich they are liable, 1 . To any person carried on such ship ; 2. To any person carried on another vessel ; Provided it has happened without their actual fault or privity, {b) § The Board of Trade has power, in its discretion, to hold an inquiry into the matter before a jury ; in which case (c) (i) No more than j630 can be recovered, id) («) 9 & 10 Vict. c. 93. {h) 2.5 & 26 Vict. c. 63. s. 54. (f) 17 & 18 Vict. c. 104, ss. 507, 510. ((7) Ibid, s. 510. OP THE NEGLTGENT USE OP CHATTELS. 225 (iij The sum recovered is paid in priority to all other claims, (e) (iii) The Board may arrange a compromise between the shipowner and the plaintiff. (/) (iv I The plaintiff^ if dissatisfied^ may repudiate the pro- ceedings of the Board of Trade ; and bring his action, [rj] Upon the terms — (a.) That any sum recovered is payable after other claims, substantiated at the Board of Trade inquiry, have- been satisfied, {g) (^•) That, unless the plaintiff in his action re- covers double the statutory amount of £30, he will have to pay the defendant's costs, [g) [y-) That he does not commence his action, until the -Board of Trade have either completed, or determined not to hold, an inquiry. (//) § In actions for negligence 1. It is the duty of the judge to say if any evidence has been given by the plaintiff, from which the inferences may reasonably be made, (i) That there was negligence on the part of the defen- dant j (ii) That the negligence (if any) was connected with the injury happening to the plaintiff. If in his opinion there has not, it is his duty to nonsuit the plaintiff. If in his opinion there has, he must leave the case to the jury. 2. // is the ditty of the jury to say, upon the evidence given by the plaintiff, and on any counter-evidence, which may be given by the defendant, whether such inferences ought to be made. That is (e) Ihid, 8. 510. (/) Ihid, s. 509. (^ In order, therefore, that an action for defamation may lie, if " legal malice " is rebutted, " actual malice," must be proved. § A PRIVILEGED OCCASION is whcrc the defamatory matter has been — 1/ Published bondfde, and under the belief that it was true. [Note. It is not necessary that there should be reasonable grounds for such belief, [b) ] (i) In the discharge of some public or private duty, legal, moral, or social, where the interest of the public, or of the person communicated with, are concerned. («•) Illustration. Mrs. Affleck had a servant named Child. Child left her service, and got another place. Her new mistress wrote, after she had engaged Child, to Mrs. Affleck for Child's character. Mrs. Affleck wrote saying that Child had, while in her service, conducted herself disgrace- fully, and was, she believed, then a prosti- tute at Bury. She also made a similar communication to the person who had {a) Fryer v. Kinncrslcy, 33 L. J. C. P. 96. (b) Clark v. Molyncux, 3 Q. B. D. 237, where Brajiwell, L, J., observes tliat there may be cases where the privilege will protect a jjerson who honestly makes a defamatory statement, even where he does not believe it to be true. It is suggested that such an occasion might be where there was a duty to make the (.ommnnication at all events, as where a bishop might bond fide say to a rector in his diocese that he had heard certain grave charges against the rector's ciu'ate which he was bound to communicate to him, but whether they were true or not he was unable to say. DEFAMATION OF CHAEACTER. 251 originally recommeuded Child to her. In consequence of the letter. Child lost her place ; and sued Mr. and Mrs. Affleck for libel in making both these communica- tions. The court held that the occasions were both privileged, (c) (/^■) Illustration. Hawkins was paying his ad- dresses to the widow of Dr. Taft. Her son in law, Mr. Todd, wrote her a letter warning her against Hawkins, and making imputations against his cha- racter. In an action by Hawkins against Todd, it was held that the occasion was privileged, [d) (ii) In the conduct of the utterer's own affairs, where his own interests are concerned. Illuslration. The firm of Spill & Briggs was being wound up by Maule, a creditor of the firm. During the course of this business Maule wrote a letter to Messrs. Collin & Co., also creditors of the firm, in which, alluding to the partnership assets, he described Spill^s conduct as "disgrace- ful and dishonest/' In an action by Spill against Maule the court held the occasion privileged, (e) (iii) Upon the request of the person of whom it is spoken. lIlHslrution. Ilopwood was in partnership with Pinhorn at Southampton, as a linen- draper. The partnership was dissolved; and HopAvood became the minister of a (c) Child V. Ajila:h, 9 B. & t'. 4(i;3. {d) Hav:lcinsv. Todd, 8 C. & P. SS ; luA ^iin Coxhead v. llidnmh, 2 C. B. (i05. (e) Spill V. Muidc, L. II. 4 Ex. 232. 252 EUBEIC OF THE COMMON LAW. dissenting chapel at Thatcliam^ near New- bury. Rumours got about^ prejudicial to his character with reference to his trans- actions with Pinhorn : and Hopwood from the pulpit in the chapel demanded an investigation. An investigation was ac- cordingly instituted ; and Thorn^ who was pastor of a congregational body at Win- chester^ was appointed to act at the inquiry on behalf of the member of Hopwood's Congregation, who had raised the charge ; and one Ainslie was appointed by Hopwood to act for him. After the inquiry was held_, but before the whole matter was disposed of. Thorn, in answer to a communication by Ainslie, wrote to him upon the subject, commenting in strong language on Hopwood's conduct, and stating that it appeared that Hopwood had cheated Pinhorn out of £2,000. In an action by Hopwood against Thorn, the court held, that the occassiou was privi- leged, {a) 2. Where the defamatory matter is published by a newspaper, and is (i A fair and imj)artial account, of what has happened in an open court of justice. Ilkistration. Three gentlemen, civil engi- neers, applied under the Master and Ser- vants Act to a police magistrate in London, for a summons against Mr. Usil, for improperly withholding certain moneys, which they alleged he had received, and («) Hopwood V. Thorn, 8 C. B. 316. DEFAMATION OF CHAEACTER. SSS were due to them. The magistrate said it was a case for a county courts and not for criminal proceedings, and refused the summons. A report of the case was pub- lished in '' The Daily News/' " The Morn- ing Advertiser/' and the '' Standard/' newspapers. In tliree actions against all three papers for libel, brought by Mr. Usil, the jury found that the report was a fair and impartial one : and the court held, the occasion to have been privileged, [b] (ii) A fair and impartial account of what has happened at a debate in the High Court of Parliament. Illustration.. On February 13, 18(37, '^ The Times " gave a report of a debate which occurred in the House of Lords on the previous evening. The report said that the debate arose on the presentation by Lord Russell of a petition of Mr. Wason, which made certain scandalous charges against the lately appointed Lord Chief Baron. That on presenting the petition. Lord Russell said that he should not ask the House to assent to the prayer of the petition, as he did not concur in it ; and said that Mr. Wason's statement must be a fabrication. That the Lord Chancellor used stronger language, and concliuled by saying that this petition would now lie on tlie table, a perpetual record of Wason's falseliood and malignity, and that Lord Derby said, that the House would only (/O Usil v. Hales, 3 C. P. D. 319. 254 RUBRIC OP THE COMMON LA^. be doing its duty^ and supporting its own dignity and cliaracter by refusing to allow so slanderous, calumnious^ and unfounded a statement to be on tbe table. In an action against " The Times " by Wason, the jury found that the report was fair and reasonable, and the court held that the occasion w^as privileged, {a) (iii) A fair and impartial criticism of a person^s conduct in matters of public interest, {b) Illustration. The ^^ Liverpool Daily Courier'^ published a correspondence between the Rev. Mr. Kelly, incumbent of St. George^s Church, Liverpool, and his churchwardens ; and also letters from other correspondents, and commented severely on Mr. Kelly^s conduct. The correspondence related to an alleged desecration of the church by Mr. Kelly in permitting books to be sold therein, and the vestry to be used for cooking purposes. In an action by Mr. Kelly, the jury found that the matter complained of was within the reasonable limits of discussion; and the court held that the occasion M^as privileged, [c) (iv) A fair and impartial criticism of a book, or a work of art, or a public entertainment. Illustration. Hood published a severe criticism on some books written by Sir John Carr, with a frontispiece consisting of a caricature of "The Knight leaving Ireland with regret. ^^ In an action by Sir John Carr, (((,) JFason v. IFalter, L. E. 4 Q. B. 73. (b) Davis v. Duncan, L. R. 9 C. P. 396. (c) Kelhj V. Tinhy, L. E. 1 Q. B. 699. DEFAMATION OF CHAEAf'TEi;. 255 it was held that a fair criticism was privileged^ so long as it did not follow into domestic life for the purposes of per- sonal slander, [d) (v) A comment made, without actual malice, on the public acts of men acting in a public capacity. Illustration. Coupland published in the " Hampshire Advertizer," a series of libels on Parmiter, imputing to him partial and corrupt conduct, and ignorance of his duties as Mayor and Justice of the Peace for the Borough of Winchester. In an action by Parmiter it was held that cAcry subject has the right to comment on those acts of public men which concern him as a subject of the realm, if he dees not make his comment a cloak for malice and slander, (e) 3. Where the defamatory matter has been uttered in the course of a judicial proceeding by a judge, counsel, the jury, the parties, or a witness, the utterer is absolutely protected. Illustration. Netherclift, an " expert " in the matter of handwriting, was witness, in the probate suit of Davies v. ^Eay, to prove that the signature to a will was a forgery. Sub- sequently he was witness in a police court, en a prosecution for forgery, to prove the genuineness of the document impugned. In cross-examina- tion counsel read to him a report of the language of the judge of the Probate Court in the case of id) Carr v. Hood, in notis, 1 Camp. 354 ; Soam v. Knujht, M. & M. 74. (e) Parmiter v. Coupland, 6 M. «Sc W. 108. 256 EUBRIO OF THE COMMON LAW. Davies v. May, strongly condemnatory of Netlierclift's evidence, as being rash and over- confident. Upon which Netherclift volunteered the observation that " he believed the signature to that will to be a rank forgery, and should believe so till the day of his death." An action for slander was brought against him by Seaman, a solicitor, who in the probate suit had sworn that the signature to the will was genuine. But the court held that the defendant was ab- solutely privileged, even though the plaintiff ivere to prove " malice in fact." [a] 4 Where the defamatory matter is contained in a bond fide petition to the Queen, to parliament, or to ministers of state respecting the conduct of magistrates or officers, {b) 5, Where the defamatory matter is uttered without actual malice in the prosecution of an inquiry into a suspected crime. Illustration. Hannah Podmore called atLawrence^s house. After she had left, Mrs. Lawrence missed a brooch. Lawrence then followed Podmore to an inn, and stated to her his suspicions in the presence of a third person. Afterwards Podmore consented to be searched by two females, to whom Lawrence repeated the charge. The brooch was afterwards dis- covered to have been left by Mrs. Lawrence in another place. In an action by Podmore the court held that the occasion was privi- leged, (e) (rt) Heaman v. Netherdift, 1 C. P. D. 544 ; 2 C. P. D. 53. (6) Harrison v. Buck, 5 E. & B. 344. (c) Podmore Y. Lmorenc^, 11 Ad. & E. 382. DEFAMATION OF CHAEACTEE. 257 III. Of statutory apologies. 1. Any defendant may give evidence^ in mitigation of damages, of his having made or offered an apology — (i) Either before action ; (ii) Or as soon as possible after action^ if the action was commenced before he had time to do so. Provided, that he has with his statement of defence delivered to the plaintiff a notice of his intention to give such evidence, {d) 2. The defendant in an action for libel against a public newspaper^ or other periodical publication, may make a good defence to such action — (i) By inserting in his own paper, at his earliest opportunity, an apology. I Or, if his own paper is published less often than weekly, in some paper or periodical selected by the plaintiff.] (ii) By showing that the libel was published — («•) Without actual malice ; and {^•) Without gross negligence, and (iii) By paying into court sufficient amends for the injury sustained by the plaintiff, (e) § Questions for the jury. 1. Whether there has been a publication of the libel. 2. Whether the defamatory matter is a libel. (/) That is to say, whether it really bears the meaning attributed to it. 3. Whether, (if it is a report, or criticism in a paper,) it is a fair comment. 4. Whether, (if the judge holds the occasion privileged,) it was published with actual malice. 5. Whether, (if justified,) it is true. {d) 6 & 7 Vict. c. 96, s. 1. (e) Ibid, s. 2. (/) 32 Geo. .3, c. 60, p. 1. S 258 EUBBIC OF THE COMMON LAW. Q Whether^ (if money is paid into court) the sum so paid in is sufficient. § Questions for the Judge. 1. "Whether the alleged libel is capable of bearing the meaning ascribed to it. (a) 2. Whether the occasion is privileged, (b) Of Criminal Proceedings. § Criminal proceedings may be taken. \^ By indictment ; 2. By information^ filed in the Queen's Bench, by leave of the court. [ This is a special remedy, which the Court of Queen's Bench, in its discretion, will allow; when it con- siders the case one of sufficient importance not to be left to be dealt with, in the usual way, by indictment.} § Punishment — 1. Where the publisher does )iot knoiv the libel to be false; Fine, or imprisonment not exceeding one year, or both, (c) 2. Where the publisher knows the libel to be false; Fine, and imprisonment not exceeding two years, {d) [The crime is a misdemeanor, not triable at quarter sessions.] ^ An indictment will only lie for libel, and not for slander. Except — 1 . Where it is seditious ; 2. Where it is blasphemous ; (e) 3. Where it directly tends to a breach of the peace ; (/) [As a challenge to fight a duel.] (a) Sturt V. Blogg, 10 Q. B. 908. (6) Coohe V. Wildes, 5 E. & B. 378. (c) 6 & 7 Vict. c. 96, s. 4. (d) Ibid, s. 5. (e) B. V. Taylor, 3 Keb. 607. /) E. V. Phillips, 6 East 464. DEFA:\rATION OF CHAKACTEE. 259 4. Where uttered against, and in tlie presence of a magistrate in the execution of his office, (y) $ Defences — 1 . The defendant may show that the libel is true ; Provided he also shews that it is for the jmblic benefit that it should be published. (A) [Note. At cornmon law it was no defence to show that the libel was true ; and hence the maxim, " The greater the truth, the greater the libel/3 2. The defendant may shew — (i) That the publication was made without his autho- rity, consent, or knowledge ; and (ii) That the publishing did not arise from want of due care, or caution, on his part, (?) {(j) R. V. Pococl, 2 St. 1,157 ; Ex parte Duke of Marlborough, 5 Q. B. 95.5 ; R. V. Jreltje, 2 Camp. 242. (h) 6 & 7 Vict. c. 96, s. 6. (i) 6 & 7 Vict. c. 96, s. 7. s '4 260 RUBRIC OP THE COMMON LAW. PART VI. OF BEEACHES OF DUTY IN RELATION TO THE PERSON. CHAPTER I. NEGLIGENT PERSONAL CONDUCT. V Wliere one by want of reasonable care in liis own personal conduct causes damage to the person, or property (real or personal) of another, lie is liable to compensate tbat other for the loss. For example. If Jones were to hit out recklessly, right and left, with his fists, in a crowd, and so were to wound Smith, he would be liable to Smith for the injury. § Peofessional men and skilled workmen are bound to use — 1. Reasonable care. 2. Reasonable diligence. 3. A reasonable and competent degree of" skill. In proportion to the character of the work which each pro- fesses to undertake. («) [Note. Contributory negligence. The remarks on contribu- tory negligence {ante, p. 221) apply equally to this chapter. 1 {<() Lanpliier v. Pliipos, 8 C. & P. 479 ; Beare v. Prentice, 8 East. 352. OF FKAUDULENT EEPEESENTATIONS. 261 CHAPTER II. OF FRAUDULENT REPRESENTATIONS. § A FRAUDULENT REPRESENTATION, for which an actioii ^vill lie must be — 1. A false statement [b), which may be^ either a ry\ Suggestio falsi ; or a (ii) Suppressio veri. 2. Made with a knowledge of its untruth, (c) {Or (i) With no belief in its truth, {d) Or (ii) In ^ reckless ignorance of its untruth, {e) 3. Made with the intention that another should act upon it. (/) [Note, ^".t a bare lie, without any fraudulent intent, is not actionable, (g) j 4. Acted upon by that other. 5. Resulting, from being so acted on, in damage to that other, {h) [Note. -A- person making a fraudulent representation will be liable, although he derives no benefit therefrom. Illustration. Joseph Freeman represented to Messrs. Pasley and Edward that one Faleh was a person safely to be trusted in order that Falch might obtain goods upon credit. Thcre- (/j) Ashlin V. White, Holt. 387. (c) Ormrod v. Huth, 14 M. & W. 651. (rf) Taylor v. Ashton, 11 M, & W, 415, (e) Jarrett v. Kemiedij, 6 C. B. 319. (/) Tlwm V. Bujlnid, 8 Ex. 725. \y) Bchn v. Keinhh, 7 C. B. N. S. 260, (Ii) Forstcr v. Charku, 7 Biug. Ut5. 262 RUBRIC OF THE COMMON LAW. upon Pasley and Edward supplied him with goods upon credit^ and Falch being insolvent, they lost the value of their goods. Freeman knew all the while Falch's circumstances. But it was conceded that Freeman had no interest in FalcVs obtaining the goods^ and that he was not in collusion with Falch. In an action by Pasley and Edward, the court held that Freeman was liable to them for the value of the goods supplied to Falch. (a) ] § Where a fraudulent representation or assurance is made AS TO A PERSON^S 1. Conduct. 2. Credit. 3. Ability. 4. Trade, 5. Dealings. And made with the intent that such person may obtain — (i) Credit, or (ii) Money, or (iii) Goods upon credit. It must, in order to render liable the person so making it, be — \'>} In writing, and (/3) Signed by the party to be charged therewith, {b) [Note 1. The representation may be partly in writing and partly verbal. Provided that the party acting upon it is mainly influenced by the written part, (c) lUustratioii One Robert Case applied to Mrs. Wade to let him some furniture on hire. Mrs. (rt) Pasley v. Freeman, 3 T. R. 51. {h) 9 Geo. 4, c. 14, s. 6. (c) Tatton v. Wade, 18 C. B. 371. OF FRAUDULENT liEPEESENTATIONS. 263 Wade required a reference; and Case directed her to apply to Tatton. She applied to Tattou, who iu answer wrote sayings " that she need have no apprehension of Case^s honesty ; that he held a very responsible situation, and there was nothing to fear." Subsequently, she had an interview with Tatton, and said, " If you, as a respectable person, assure me his (Case^s) state- ment is correct, I shall close with him ; '^ and Tatton replied, ^'You may do so with perfect safety.'' Case never paid the hire of the furni- ture, and some of it he removed, and the rest was distrained for rent. In an action by Wade against Tatton, the court held that she was entitled to recover, {d) ] [Note 2. The signature of an agent will not bind the principal Illustration. Swift, being about to sell to Sir William Russell a quantity of rails, applied to his bankers for information as to llusselFs solvency. They applied to Goddard, the manager of the Gloucester- shire Banking Company, with whom Russell banked. Goddard, knowing RusselPs affairs to be un- satisfactory, wrote a letter, leading Swift to believe that Russell was perfectly solvent. Swift there- upon supplied the rails, and lost his money. He then sued the Gloucestershire Banking Company for a fraudulent misrepresentation by Goddard, their agent. The court held that they were not liable, (e) § But as a general ride the principal is liable for the fraud id) Tatton v. Wade, 18 C. B. 371. (e) Hwift v. Jcwshurtj, L. R. 9 Q. 13. 312. 264 RUBEIC OF THE COMMON LAW. of his agent^ when he retains the benefit of the agent's fraud, (a) j § A PERSON MAKING A FRAUDULENT REPRESENTATION WILL BE LIABLE, ALTHOUGH HE DID NOT MAKE IT DIRECTLY TO THE PERSON INJURED, Illustration. Levy, a gunsmith, fraudulently represent- ing that a certain gun was made by Nock, and was a good, safe, and secure gun, sold it to Langridge for the use of himself and his sons. One of the sons used it, and it burst, and injured him. In an action by him against Levy, it was held that he was entitled to recover ; for it was immaterial that the representation was made through an intermediate person, as Levy intended the representation to be acted uijon by all the persons for whose use the gun was purchased. (6) § The MISREPRESENTATION MAY BE MADE AS WELL BY CONDUCT AS BY WORDS. Illustration. The vendor of a house in South Audley Square being aware of a defect in the main wall, plastered it up, and papered it over : And it was held that, as he had expressly concealed the defect, the vendee might recover damages from him therefor, (c) § One who makes a fraudulent representation to the public, is liable to any one of the public, who is injured by acting directly upon it. {d) Illustration. A prospectus of a company, called the " Overend & Gurney Co.," was prepared by the pro- jectors. It contained misrepresentations of facts known to those \\ho issued it. It also concealed the existence of a deed, which was material to be known. ((t) Udell v. Atherton, see ante, p. 72 ; and see Baricick v. Encjlish Joint Stock Bank, L. R. 2 Ex. 259. (/*) Langridge v. Levy, 2 M. & W. 519 ; 4 M. & W. 337. ((•) Anon, see Pichering v. Dowsun, 4 Taunt., p. 785. (d) Scott V. Dixon, 29 L. J. Ex. 62, n. ; Gerhard v. Batea, 2 E. & B. 476. OF FEAUDULENT KEPEESENTATIONS. 265 and Avhicli, if known, would in all probability have prevented the formation of the company. Being addressed to the public, anyone might take up the prospectus, and appropriate to himself its representa- tions by applying for an allotment of shares. Peek, not an original allottee, purchased shares in the market ; and upon the company being wound up, he was held liable as a contributory. He claimed in- demnity against the projectors on the ground of misrepresentation. It was held that, though an original allottee could have maintained the claim, when the allotment was completed, the office of the prospectus was at an end ; and a subsequent purchaser of shares in the market, was not so connected with the pro- spectus as to render those, who had issued it, liable to indemnify him. (e) § By the companies act, 1867, a prospectus is to be deemed fraudulent on the part ov 1. The promoters, 2. The directors, 3. The officers. Of a limited company, as regards all persons taking shares upon the faith of it, without notice of fraud. Unless it specifies the dates, and names of the parties, to aay contracts, entered into by the company, its directors, pro- moters, or trustees, before the issue of such prospectus. (/) Counterfeiting Trademarks. § Where a trademark has been adopted by a particular manu- facturer, and it has become known in the trade, and to the public as designating his goods; if another sells his own goods with a similar mark upon them, with intent to deceive purchasers, he will be liable. (e) PceJc V. Gunieij, L. K, 6 H. L. 377. (/) 30 & 31 Vict. c. 131, s. 38. 266 EUBEIC OF THE COMMON LAW. J To the purchaser for a fraudulent misrepresenta- tiou ; {a) 2. To the manufacturer for injuring his sales; and his reputation^ if an inferior article is sold under his mark, {b) [Note. § A right to a trademark precludes no one from making the same article; but only from using the same designation for it. (c) § The object is to secure to the trader the benefit of his reputation ; and to protect the public from fraud on the part of rival traders. § Long use is not necessary for the acquirement of a right to a trademark ; but the article must have been brought into, and become known in the market by the trademark. Illustration. Ford was a shirt maker in London, and invented a shape of shirt, which he called " The Eureka Shirt/' and used as a trademark the words '^ Ford's Eureka Shirt." Foster subsequently sold shirts, which he called " Foster, Porter, & Co/s improved Eureka shirt ;" and Ford applied for an injunction to restrain him from so doing. The injunction was granted, {d) § But when a name, used as a trademark, has come into such general use that it no longer has the effect of inducing the public to believe they are buying goods manufactured by the original adopter of the trademark, the («) Arion, cited in Southern v. Howe, Cro. Jac. 471. (6) Eodgers v. Noivill, 5 C. B. 127 ; see also 25 & 26 Vict. c. 88, s. 22. (c) Farina v, Silverlock, 6 De G, M. & G. 218. {d) Ford V. Foster, L. K. 7 Cli. 613. OF PEAUDULENT REPRESENTATIONS. 267 name becomes puhlicl juris ; aud uo right to its exclusive use can be maintained. For example, " Broughams/^ " Wellington boots/' *' Harvey's sauce/' or " Liebeg's extract of meat." (e) J § The remedy is by action, or injunction. i § The selling of an article with a trade mark is a selling with a warranty that the trade mark is genuine. (/) § The selling of an article, whereon is a state- ment as to the number, quantity, measure, or weight, thereof, is a selling with a warranty that such statement is true, {g) ] (e) Lieheg's Extract of Meat Conqhiut/ v, Hanhunj, 17 L. T. X. S. 298 ; Ford V. Foster, L. R. 7 Ch. p. 628. (/) 25 & 2(j Vict. c. 88, s. 19. (r/) Ibid, s. 20. 268 Eur.Eic OP the common law. PART VII. INJURIES RESULTING FROM THE EXERCISE OF STATUTORY POWERS. § An action will not lie where damage has been caused by AN act done under POWERS GIVEN BY AN AcT OF PAR- LIAMENT. Provided — 1. The power has been exercised with judgment and caution. Illustration. The G. N. Railway Co. constructed an embankment, in conformity with its Act, across some low lands, lying between the river Dun and some land belonging to Lawrence. The low lands were separated from Lawrence's -land by a bank; but in consequence of the erection of the railway embankment, the flood waters were unable to spread over the low lands as formerly, and flowed over the bank, and on to Lawrence's land. In an action by Lawrence against the company, it was held, that if the company had used proper caution, they would have opened proper flood-gates to allow the flood water to escape, and were there- fore not protected by the Act, (a) 2. The power has been strictly pursued, and not ex- ceeded. Illustration. The Festiniog Railway Company i) Lawrence v. Ch-eat Northern Kailway CunqKony, 16 Q. B. 653. INJUEIES EESULTIXG FE0:M STATUTORY POWEES. 269 were empowered by statute to make and main- tain a railway and tramroad for the passage of waggons, engines,, and other carriages for the purpose of conveying minerals, &c. They used their lines as empowered, and also ran passenger trains drawn by locomotive steam- engines. They were guilty of no negligence, but a spark from one of their engines set on fire a haystack of Jones. Jones sued them for maintaining a nuisance ; and the court held that they were not protected by their statute, and were liable at common law. (h) 3. A. nuisance is not created. Illustration. The Lewisham Board of Works poured sewage into two streams called " The Poole River" and "The County Bridge Stream," which flowed through the land of Cator. Cator sued the Board for fouling and polluting his watercourse ; and the Board justified their conduct under *' The Metropolis jNIanagement Act, 1855,^' which gave them large powers for the purposes of draining and sewering their district. The court held that the act did not empower them to commit a nuisance on Cator's land, (c) [Note. Bui if the statute expressly contemplates the creation of a nuisance, no action will lie. Illustration. The Stockton and Darlington Rail- way Company were empowered by their act to make and work a railway parallel and adjacent to an ancient highway. In consequence of Avhicli the horses of persons using the highway (6) Jones v. The Festiniog Railway Company, L. E. 3 Q. B. 733 ; Jhrnvnloiv v. Metrojwlitan Board, 31 L. J. C. P. 140. (c) Cator V. 77ie Lewisham Board of Works, 5 B. & S. 115, 270 EUBEIC OP THE COMMON LAW. were frightened by the locomotives. The Company were indicted for a nuisance; and the court hekl that the legislature must be presumed to have known what the relative positions of the highway and the railroad would be, and had sanctioned the interference with the public convenience. (a)j 4. The act has not been done negligently. Illustration. The St. Helens Canal and Railway Company under statutory powers constructed a canal across a public highway, and carried the highway over the canal by means of a swivel bridge. When the bridge was open the high- way abutted on the open cut of the canal, which was wholly unfenced, and unlighted, A boatman opened the swivel bridge to let his boat pass through, and Thomas Manley, who who was walking along the highway, fell into the canal at the unprotected spot, and was drowned. In an action by his widow under Lord CampbelPs Act the court held that the company was liable, {b) 5. Every known means of avoiding the committing of an injury has been made use of. Illustration. Vaughan had a wood near the line of the Taff Yale Railway Company, which was set on fire by a spark from one of the company's engines. In an action by Vaughan the com- pany proved that every precaution had been taken, and every means adopted, which science could suggest to prevent the emission of sparks. (a) Rex V. Pease, 4 B. & Ad. 30. (b) Manley v. St. Helens Canal and Bailway Comjnouj, 2 H. & N. 840. INJURIES RESULTING FROM STATUTORY POWERS. 271 The court held that this was an answer to the plaintiff's claim, (c) § Notice of action must generally be given before commencing a suit in respect of any tort committed in the exercise of statutory powers. (r) Vavghan v. Taff Vale Railway Company, 5 H. & N. 679. 272 EUBEIC OF THE COMMON LAW. PART VIII. OF THE RELATION OF MASTER AND SERVANT. I. Of the liability op the master for the wrongful acts of THE servant. § The master is liable for all torts committed by his servant. Provided 1. The servant is at the time acting in the execution of his master^s business. (i) Illustration. North was going on foot along a road in Southwark with a waggon and horses. Smith was ridings with his groom behind him, in the contrary direc- tion. As the groom passed North, he touched his horse with the spur. The horse kicked out, and struck and injured North. In an action by North against Smith, it was held that Smith was liable for the act of his servant. («) (ii) Illustration. Ashton was a wine mer- chant in the INIinories, who sent a clerk and a carman with a horse and cart to deliver wine at Blackheath. They delivered the wine, and received back some empty bottles : and it Avas then the duty of the carman to return to Ashton's offices, deliver the bottles, and take the horse and cart round to the stables. Instead of (a) North v. Smith, 10 C. B. 572. OF THE RELATION OP MASTER AND SERVANT. 273 doing thisj it being- after business hours, the carman, at the request of the clerk, when he had crossed London Bridge, went to the City Road to the clerk^s house ; and thence to fetch a cask from the clerk^s brother-in-law at Barnshury. While on the way to Barnsbury they ran over Storey. In an action by Storey against Ashton it was held, that the latter was not liable, as the carman had practically started on a fresh journey on his own account ; and was not acting in the course of his employment as a servant, {b) 2. He is, at the time, acting within the scope of his employment for purposes of his master, (i) Illustratio/i. The local board of Swindon had a sewage farm, of which Buchan was the manager. He had ample powers to manage the farm in the most beneficial way. A ditch divided the farm from the land of Lord Bolingbroke ; and with the view of rendering the ditch more efficient for drainage purposes, Buchan committed a trespass on Lord Bolingbroke's land, pared away the bank of the ditch, and cut the underwood and trees on Lord Bolingbroke^s side. In an action by Lord Bolingbroke against the Board, it was held that Buchan had not acted within the scope of his employment, and the Board was not liable, (c) (ii) Illustration. McCleod was tenant to (6) Storey v. Ashton, L. E. 4 Q. B. 476. (c) Lord BoHnghroke v. The Local Board of Smndon, L. R. 9 C. P. 575. T 274 EtJEEIO OP THE COMMON LAW. McKenzie of a house in Scotland [where the tenant is, by law, liable to his landlord, if the premises are burnt down by the negligence of the tenant's servants.] McCleod's housemaid, finding she was unable to light the fire in one of the rooms, by reason of the chimney smoking, and thinking the mischief arose from an accu- mulation of soot, proceeded to clean the chimney by burning furze and straw in it; ii consequence of which the house was burnt down. In an action by McKenzie against McCleod the court held that the servant's duty was to light the fire, and not clean the chimney ; and that the defen- dant was not liable. («) [Note. The master is not absolved by the fact that the servant ivas acting in disobedience to orders. Illustration. The London General Omnibus Company had given strict orders to its drivers not to hinder or annoy other omni- buses. The driver of one of its omnibuses, in Knightsbridge, wilfully drove across another omnibus belonging to Limpus, came into collision with, and overturned it. In an action by Limpus against the company it was held that the company was liable, {b)] 3. The master is not obliged by laiv to employ a particular person [as, for instance, a pilot], (c) (a) McKende v. MrCleoil, 10 Bing. 385. (b) Limpus v. General Omnibus Companii, 1 H. & 0. 52fi, (c) Bennet v. Moita. 7 Taunt. 258, OF THE EELATION OF MASTER AND SERVANT. 275 Where a man employs a suh-co7itractor to do work for him^ he is not responsible for the negligence of the sub-contractor's servants. {(I) Provided — 1. The work is lawful. Illustration. The Sheffield GJas Company con- tracted with Watson Brothers to make trenches along the streets of Sheffield, and lay down gas pipes. Watson Brothers ac- cordingly carried out the work, and in doing so carelessly left a heap of stones and earth on tlie footway, over which Jane Ellis fell and broke her arm. Neither the company nor Watson Brothers had any legal excuse or authority for ])reaking up the road, and the heap was in fact a public nuisance. In an action by Ellis against the company, the Court held that they were liable, (e) 2. He does not intermeddle himself. Illustration. Gray employed Palmer to con- struct a drain from certain premises to the main sewer in the street, and applied, himself, to the local authority for leave to break up the road. Palmer's servants left a heap of gravel by the side of the road. On com- plaint made by a constable to Gray, the latter said he would remove it as soon as he could ; and Palmer employed a man to cart away a portion of the gravel, and charged the expense to Gray. Burgess, who was driving along the road, drove over the heap, and was thrown out of his cart and injured. {d) Reedie v. London and North IFestern Railway Company, 4 Ex. 344. (e) Ellis V. meffield Gas Company, 2 E. & B. 767. t2 276 EUI5EI0 OF THE COMMON LAW. In a second interview with tlie constable, Gray said he could produce evidence to show that the accident occurred through Burgess' own carelessness. In an action by Burgess against Gray, it was held that there was evi- dence that Gray had not abandoned the entire control of the work to Palmer, and that he was liable, (a) 3. The work is not such, that if done improperly, damage must necessarily be expected to result from it. Illustration. Bower and Peate owned two ad- joining houses, and Bower was entitled to have his house supported by Peate's land. Peate employed a contractor to pull down and rebuild his house, and to excavate the foundation ; who by not sufficiently shoring up the earth, caused a settlement, which injured Bower^s house. In an action by Bower against Peate, the court held that it was no defence for Peate to say that he had engaged a competent contractor to do the work, as a man is bound himself to see to the doing of what is necessary to prevent mischief, where in the natural course of things, injurious consequences to his neigh- bour must be expected to arise, unless means are adopted to prevent them, {b) [Note. § Where the injury arises directly from the act contracted to be done, the contractor is liable. § But where it arises from something col- lateral to the act contracted to be done. (a) Burgess v. Gray, 1 C. B. 578. {h) Bower v. Peate, 1 Q. B. D. 321. or THE EELATION OF MASTEE AND SERVANT. 277 the contractee wlio employs him is liable, (c) j II, Of the liability of the master to the servant for NEGLIGENCE. ^ A master is bomirl to take all reasonable precautions for the safety of his servant, {d) & A master will be liable for all injuries happening to the servant in the course of the employment, 1. By reason of the master's negligence. Illustration. Roberts was a bricklayer in the employment of Smith. Smith had a scaffold put upj which was to his knowledge composed of rotten timbers. He sent Roberts to work on the scaffold^ which gave way ; and Roberts was thrown to the ground and injured . In an action by Roberts it was held that there was evidence to go to the jury of negligence on the part of Smith, which would make him liable for the injuries happening to the plaintiff, (e) 2, By reason of a failure to provide the protection enjoined by an Act of parliament. Illustration, Clarke was a cotton-spinner at Manchester. Holmes was his under over- looker, and it was his duty to oil certain machinery, which Clarke was bound, under the Factory Acts, properly to fence. When Holmes entered Clarke's service, the mill-gearing was fenced by an iron guard; but subsequently this Avas broken, and had not been mended, though Clarke had promised Holmes that the repairs should be done. Whilst Holmes was oiling the machinery, his arm was caught by the machine, and torn off. In an action by (c) Hole V. Sittimjhourne and Shcerness Railway Gompanij, 30 L. J. Ex. 81. (d) Williams v. Gloiujh, 3 H. & N. 258. (t;) Roberts v. Hmilh, 2 H. & N. 213. 278 EUBEIC OF THE COMMON LAW. him against his master^ the latter was held to be liable. («) 3. By reason of a failure to disclose any latent danger in the employment. Illustration, England was a contractor for the supply of beef for the use of the Royal Navy, and employed Davies to cut vip certain carcases, which he knew to be diseased and putrefying. Davies' hand became poisoned during the opera- tion ; in consequence of which he brought an action against England, and the court held that the latter was liable, {b) Unless — (i) The servant has been guilty of contributory negligence. [See ante, p. 221.] (ii) The servant was acquainted Avith the danger, and took the employment with the attendant risks. Illusti'ation. Woodley was at work on a side wall in a dark tunnel of the Metropolitan District Railway. There was just room for him to do his work between the wall and the trains, which passed every ten minutes. While reaching across the rail for a tool he had laid down, a train knocked him over, and injured him. In an action brought by him against the company, it was held that he could not recover ; as a man, entering a dangerous employment, takes it Avith the accompanying risks, {c) (iii) The injury has been caused by the negligence of a fellow servant — (f/) (ft) Holmes v. Clarke, 31 L. J. Ex. 356. (6) Davies v. England, 33 L. J. Q. B. 321. (c) Woodley v. Metropolitan District Raihi-atj Compani/, 2 Ex D. 384. {d) Tlie Government lias this session (May, 1880) brinight in a Bill to Oh' THE EELATIOX OP MASTEK AND SERVANT. 279 (a \ Engaged in a common service. Illustration. ^^^ ^^^ Henderson con- tracted with the Crystal Palace Company to erect a tower. They manufactured the materials^ and entered into a sub-contract with one Moss^ to do certain hoisting and fixing of the materials, Fox and Henderson supplying the scaffolding, and paying Moss^ workmen by the week. Moss employed Wiggett to work at the bottom of the tower, and while he was so doing, some of Fox and Henderson^s men at the top of the tower, dropped an instrument called a " rymer " on to Wiggett's head, and killed him. In an action by his widow, under Lord Campbell's Act, against Fox and Henderson, the court held that she could not recover, as her husband's death had been caused by the negligence of fellow workmen in a common employment, (e) (3) In the same work. Illustration. Reid, a miner in the em- ployment of the Bartonshill Coal Company, was in a " cage " for the purpose of ascending the shaft of a mine, and was drawn up by Shearer, also in the company's employ. Shearer failed to stop the cage in time, so that modiiy the existing law uii this puiul, with a view to make the employer liable to u servant who has been injured through the negligence of another servant, whose orders he is bound to obey, (e) Wiggett v. Fox, 11 V.\. 832. 280 EUBRIC OF THE COMMON LAW. on its reaching tlie platform^ it struck the scaffolding, and was overturned, and Reid fell to the bottom of the shaft and was killed. In an action by his widow, under Lord CampbelFs Act, the House of Lords held that she could not recover, as both Reid and Shearer were engaged in the common object of bringing up the coal of their common employer to the surface, (a) (y-) Who has been selected by the master with reasonable care, {b) [Note. One ivho volantarily assists the servants of another, and thereby gets injured through their negligence, is in the same position as a fellow servant for the time being. Illustration. James Degg, in the emj)loyment of Pickford & Co., was unloading a truck on a siding at the Cheltenham Station of the Midland Railway. Close by was a turn-table, at which three servants of the Company were attempting to turn another truck. Degg left his work, and proceeded to help the three men at the turn-table; and while pusliing with them, an engine was backed by another of the Company's servants against the truck, and crushed Degg's head between the buifer of the truck and the wall. In an action by his widow, under Lord CampbelPs Act, the court held that she was unable to recover, (c) ((() Bartonshill Goal Comixinij v. Reid, 3 Maccj^. 296. {h) Tarrant v. Wehh, 18 C. B. 804. (c) Degg v. Midland Railway Compaiuj, 1 H. & N. 773. OF THE EELATION OF MASTER AND SEEVANT. 281 III. Of the master^s right of action in respect of torts com- mitted AGAINST HIS SERVANT. § They are liable to the master in damages who wilfully interrupt the relation subsisting between master and servant^ whereby the master suffers loss. !• By procuring the servant to depart from the mastei^s service. JUustration, Lumley was lessee and manager of the Queen's Theatre, and had engaged Johanna Wagner as a dramatic artiste to per- form at his theatre for a certain time, and during that time not to sing elsewhere. Gye induced her to break her engagement, and to enter his employment ; and Lumley sued Gye for enticing her away. The court held that the action would lie. {(l) 2. By a personal injury whereby the master is deprived of the services of the servant. Illustration. Frederick Berringer, an infant, travelled by the Tilbury and Southend Rail- way from Fenchurch Street to Stepney Junction, where the train came into collision with a train belonging to the Great Eastern Railway, through the negligence of the latter company. Frederick Berringer was injured, and his father sued the Great Eastern Railway for the loss of his son's services. [See post~\ It was held that he was entitled to maintain the action, (e) Vrov'irh'd that the injury to the servant is the result of a pure tort ; and does not arise out of a breach of contract. (d) Lumhij V. Gije, 2 E. & B. 224 ; Evans v. Walton, L. R. 2 C. P. 615. (e) Berringer v. Great Eastern Railway Company, 4 C. P. D. 163 ; Gray v. Jefferies, Cro. Eliz. 55. 282 KUBEIC OF THE COMMON LAW, lUustratiun Alton, wliose servant, Baxter, was injured when travelling on the Mid- land Railway, sued the company for the loss of Baxter's services, resulting from the company^s breach of their contract to carry Baxter safely and securely. The court held that Alton could not recover, as there had been no contract between him and the company; and the company had been guilty of no breach of duty towards Alton, but only towards Baxter, who was no party to the action, (a) a. By the seduction of a female servant [for by reason of her pregnancy, the master loses the benefit of her services.] [Note. Theoretically a parent has a legal right to the services of his child, and if this relation is interfered with by reason of a daughter's pregnancy, he will be entitled to bring an action for damages against the seducer. Provided — (i) The daughter was living with the father at the time of the seduction, [b) (ii) Some service is proved, however nominal, [such as making his tea in the morning, or milking his cows, (c) ] (iii) The seduction has resulted in preg- nancy, {d) ^ But though the gist of the action is loss of service, the parent in an action for the seduction of his daughter may recover (a) Alton v. Midland Railvxty Cohipany, 34 L. J. C. P. 292. Ih) Davies v. JVilliams, 10 Q. B. 728. (c) Thompson v. Rons, 5 H. & N. 16 ; Bc)inctt v. Alcott, 2 T. R. I(i8. {d) Eager v. Grirnicood, 1 Ex. 61. 01' THE RELA'J'ION OF MASTEK AND SERVANT. 283 damages for the injury his feelings have sustained . (e) § If the child is incapable by reason of its tender years, from performing any service, the parent cannot main- tain an action. Illiistratwii, Hollander drove against, and injured HalFs child. In an action by the father against Hollander, it was proved that the child was only 2g years old, and the court held that the action would not lie, as by reason of the child's age no service could be presumed, (/) ' § The master may, if he please, waive the tort, and sue in contract for the wages earned by an apprentice from the person who has enticed him away, [g) IV. Of the dominion of pak,i;nts over their children. § A FATHER has, at common law, the exclusive right to the custody of his legitimate children from birth to the age of 21. {h) i j § The children may, however, on attaining the age of ' sixteen, choose for themselves with whom, and where, they will live, (i) § The mother has at common law no right to the custody of her children, however young, as against the father. Illustration. De ^Nlanneville, a Frenchman, married an Englishwoman, and had by her one child. Shortly after the birth of the child she separated from her husband on account of his ill treatment of her, and took the child with her, which she was nursing at the breast. When the child was eight months old, the father sot into the house where she was {c) Elliot V. yicldin, 5 Price, (j41. (/) Hall v. Hullamkr, 4 B. & C. 660. ((/) Foster v. Steicart, 3 M. & Sel. 191. (h) Cartleihje v. Cartledrje, 31 L. J. P. & M. iSJ. (i) Eijder v. Eijder, 30 L. J. P. & M. 44. 284 RUBEIO OF THE COMMON LAW. forcibly took tlie cliild from her breast_, and re- moved it, half naked, in an open carriage. The mother obtained a writ of habeas corpus, directing her husband to produce the child in court, with a view to its restoration to herself. But the court held that they had no power to deprive the father of his right to the custody of the infant, in the absence of any ground for believing that such custody would be prejudicial to the child^s health or liberty, {a) [Note, But if the father is dead, or convicted of felony, the court will grant the mother a writ of habeas corpus, to give her the custody of her child up to the age of sixteen, {b) \ § The Court will compel the mother, or any other person, to restore children to the custody of the father. Unless — 1 . He is guilty of, or it is apprehended that he will be guilty of, gross cruelty to his child ; (c) 2. The infant is of an age to elect for himself; {d) 3. The father's conduct is such, that it is essential for the child's safety and welfare, jihysical, in- tellectual, or moral that his right should be suspended, (e) Illustration. Alfred Goldsworthy applied to the Queen's Bench for a writ of habeas corpus to his wife and her father for the pro- duction before the court of his infant son Alfred Ernest, in order that he might be restored to the custody of his father, Mrs. (a) Eex v. De Manneville, 5 East, 221. (b) Ex parte Bailey, 6 Dowl. P. C. 311 ; aud see also "The Custotly of lu- iauts Act," 2}ost, p. 285. (c-) lie Andreivs, L. R. 8 Q. B. 158. (d) Rex v. Delaval, 3 Burr. 1435. (e) Ex parte Fynn, 2 De G. & Sm. 47-1 ; Be Curtis, 28 L. J. Oh. 458. OP THE RELATION OP MASTER AND SERVANT. 285 Goldswortliy having left her home and taken her child with her. ]\Irs. Goldsworthy re- sisted the application on the gronnd that her husband was constantly intoxicated^ and habitually made use of filthy and disgusting language to her in the presence of her son^ who had learnt much of the bad language from the father. The court refused the writ on the ground that the elementary morals of the child were in serious danger from the father's misconduct. (/) [Note, But the court is always reluctant to interfere with the rights of the father, [g] | § The Court may, in its discretion, on the application of the mother, order that she may have — 1, Access to her child at such times as the Court may deem fit; 2, The custody of the child up to the age of six- teen, or to such age as the Court may think proper. (A) § The Court of Divorce may, where (here has been a decree absolute for a judicial separation, or for nullity, or dissolution, of marriage, make such order as it may think just and proper for the custody, maintenance, and education of children of the marriage dealt Avith by the Court, [i) s But the Divorce Court will not interfere with the father's common law right to the custody of the children — Unless he is leading a notoriously dissolute life, {k) (/) Re Goldsworthy, 2 Q. B. D. 75. lo) Hoi)e V. Hope, 23 L. J. Ch. 689. (h) "The Custody of Infants Act, 1873," 36 Vict. c. 12, s. 1. (i) 20 & 21 Vict. c. 85, s. 35 ; 22 & 23 Vict. c. 61, s. 4. (/.•) March v. March, L. E. 1 V. & M. 437. 286 EUBRIO OF THE COMMON LAW. § A TESTAMENTARY GUARDIAN has the Same right to the custody of his infant ward as the father would have had, (a) [Note. § A father may by will appoint a guardian to his infant legitimate child, {b) § A mother has no power to appoint a guardian even to her own illegitimate child, (c)] § The religious belikf of the father must be scrupu- lously regarded by the guardians of the children of the dead man. [d) § The Court will restrain all persons from bringing up such children in any other belief. Unless — 1 . fn cases where the father is dead, such a perma- nent impression of another faith has been made on the childj that it would be injurious to the child's welfare by unsettling its belief, (e) 2. The father has abandoned his right to educate the child in his own religion. (/) [In which case the Court will only consider the happiness and benefit of the child.] § Any agreement between husband and wife that children SHALL be brought UP IN ANY FAITH OTHER THAN THAT OP THE FATHER IS VOID. Illustration. The Hon. Leopold Agar-Ellis, a Protestant, married a Roman Catholic lady. Before marriage he agreed that all the children should be brought up Roman Catholics. Shortly after the birth of the first (a) Re Andrews, L. R. 8 Q. B. 153. (b) 12 Carl. 2, c. 24, s. 8. (c) Ex parte Edwards, 3 Atk. 519 ; Ex parte Glover, 4 D. P. C. 291. (cl) Haioksivortli v. HawJcsivorth, L. R. 6 Ch. 542. (e) Stoiirton v. Stourton, 8 D. M. & G. 760 ; Agar-EUis v. Lascelks, 27 W. R. 117. (/) Andre^vs v. Salt, L. R. 8 CIi. 639. OF THE EELATION OF MASTER AXD SEEVANT. 287 child^ he retracted his promise^ and directed his wife to have the children educated as Protestants. The wife, unknown to the father, took the children to confession and Roman Catholic senaces, and imbued their minds with such distinctive Roman doctrines that the three children, aged 12, 11, and 9, respec- tively, refused to accompany their father to Protestant churches. Upon the father proceeding to send the children from home to be educated by a Protestant clergyman, the mother, who was at this time separated from her husband^ petitioned to have the custody of the infants, under the ^^ Infants^ Custody Act, 1873." The Court dismissed the petition, {g) (r/) Agar-FAlis v. Lascelles, 27 W. R. 117. book: IV. DAMAGES. § Damages. A compensation and a satisfaction for a loss or injury sustained. § The motive of the person causing tlie loss or injury cannot be taken into account by the jury. ^ Except in the cases of malicious injuries^ and tres- passes, accompanied by insulting, cruel, or wanton conduct, and then § ExEMPLARv DAMAGES may bc given, which are in the nature of a punishment, intended to have a deterrent effect. Illustration. Merest was out shooting on his own manor, when Harvey, a banker, a magistrate, and a M.P. drove up in his carriage, and vowed he would join Meres t^s party. Merest gave him distinct notice not to do so ; but Harvey fired several times on Merest^s land at Merest^s birds, and proposed to borrow shot of Merest, when his own was expended. He used very intemperate language, and threatened to commit Merest, and defied him to bring an action. Merest sued him, and recovered j8500, and the Court held the verdict to be a proper one, and the damages not excessive, [a) {a) Merest v. Harvey, 5 Taunt. 44:i. U .290 EUBEIO OF THE COMMON LAW. I. Nominal damagk is an insignificant amount recovered^ when the law presumes damage^ although the jury find that the plaintiff has suffered no appreciable loss ; 1. Where there has been a bare breach of contract ; 2.*^ Where there has been a bare infringement of a right. II. Actual damage is where the jury can estimate the amount of loss which the plaintiff has suffered^ and may be 111. G eneral d amage, viz., that which is the primary and immediate result of the defendant's misconduct^ and this is, (i) In contracts, that which may reasonably be con- sidered as arising in the ordinary course of things from the breach of contract, (a) For examp/e — (a) If the plaintiff has lent the defendant money at interest, the damages will be the sum lent and the amount of interest unpaid. (^•) If the defendant has agreed to sell goods to the plaintiff, and refuses to deliver them, the damages will be the difference between the contract price of the goods and the market price of goods of a similar description and quality at the time when the defendant should have given delivery, {b) (^) If the plaintiff is suing for the non-repair of a house under a covenant, the damages will be such a sum as will put the house into such repair as is de- manded by the covenant, regard being had to the length of the lease, (c) (a) Haclley v. Baxendale, 9 Ex. 341. (b) Gainsford v. Cairol, 2 B. & C. 624 (c) Doe d. Worcester School Trustees v. Boniand, 9 C. «&; P. 734. DAMAGES. 291 ff If the defendant is a carrier^ and loses the plaintiff^s goods^ the damages will be the value of the goods at the place and time where, and at which, they ought to have been delivered, [d) (f If the defendant is sued on a guarantie, the plaintiff will recover the amount due to him from the person he has trusted on the guarantie, with interest, if the debt bears interest, (e) (^•) If the plaintiff is suing for the breach of a warranty of a horse, he will recover such a sum as represents the difference between tlie actual value of the horse with the defect, and the value of which it would have been, had it had no de- feet. (/) (ii) In torts the direct loss, which in the ordinary course of things flows immediately from the original wrongful act. [y] For examph- [a ) If the tenant has committed waste by removing fixtures, the reversioner will recover the sum at which the fixtures would be valued between an outgoing and an incoming tenant. {]i) (^ ) In an action of trover for goods, the plaintiff would recover the value of the goods. (y) If the defendant has negligently driven (d) Rice V. Baxendale, 7 H. & N. 96. (e) AcJccrman v. Ehrenspcrrjer, Ki M. & W. 99. ( /) Towers v. Barrett, 1 T. R. 136. (V) Slmrp V. Powell, L. R. 7 C. P. 25.3. Qi) Thompson v. Pettitt, 10 Q. B. 105. 292 ETTBRIO OF THE COMMON LAW. over and injured tlie plaintiff^ the damages will be sucli a sum as the jury clioose to consider sufficient to compen- sate him for his pain and suffering, and to pay for his doctor's bill, (a) (^■) If the plaintiff is suing for a wrongful distress, he will be entitled to recover the value of the property distrained, {b) (*•) If the plaintiff is suing for a libel, the damages will be such a sum as the jury may consider sufficient to compensate him for the injury done to his cha- racter, {c) 2,-~Sp€cial damage, viz., that, which would not arise except for the peculiar circumstances of the par- ticular case. (i) Illustration Collard, a farmer in Kent, de- livered to the South Eastern Railway Company eight pockets of hops to be carried to one Cozier in London, to whom he had contracted to sell them. The Company delayed them nine days, and eventually delivered them, at the Bricklayer's Arms Station, in an open truck, stained, and wetted. Cozier, thereupon, refused the hops ; and Collard had to dry them ; (a process which required a week;) and then to sell them for the best price they would fetch. The market price had in the mean time dropped from £18 to £9 per cwt; and the hops them- selves, being damaged, lost value to the amount of £3 or £4. In an action against the Com- (rt) Blale v. Midland Railnmj Company, 18 Q. B. 111. (b) Attack V. Bramu-eU, 3 B. & S. 520. (c) Tn>|3 V. Thoma.'i, 3 B, & C. 427. DAMAGES. 293 pany by Collard^ it was held that he was entitled to recover^ not only for the damage done to the hops, but also special damage, in respect of the loss resulting from the fall in the market, during the time that the sale of the hops was delayed through the defendant's negligence, (d) (ii) nimtration. Randall ordered, and bought of Newsom, a coachbuilder, a pole for his carriage. The pole broke in use ; and the horses, becom- ing frightened in consequence, were injured. In an action by Randall the jury found that the pole was not reasonably fit for the carriage; but that Newsom had been guilty of no negligence. The Court held, that Newsom must be taken to have impliedly warranted the pole ; and that Randall was entitled to recover, not only the value of the pole, the immediate damage resulting from the breach of warranty ; but also the difference between the value of the horses before and after the accident, as special damage, [e) (iii) Illustration. France bought some champagne of Gaudet & Co., at 14*. per dozen ; and resold it to the Captain of a ship, about to leave England, for 24s. per dozen. Gaudet & Co., (who had no notice of the sub-contract,) refused to deliver the wine : and 7io similar » wine bei7ig procurable in the market, France was unable to fulfil his contract. He accord- ingly sued Gaudet & Co.; in trover for the wine. And the Court held, that he was ((/) Collard v. South Eastern llaihvaii Company, 30 L, J. Ex. 393. (e) Randall v. Nexcsom, 2 Q. ]3. D. 102. 294 RUBRIC OF THE COMMON LAW. entitled to recover, as special damage, not only the contract price of the wine, but the special value of the wine to him at the time that it ^ should have been delivered, viz., 245. per L^oTi.. J. OSS of profits cannot be recovered in ' an action of contract, {b) Unless the profits to be made are the actual Z '^' ^-{^ ( thing contracted for, as where a ship is hired for the purpose of earning freights, (c) (iv) Illustration. Benjamin kept a coffee-house in ■t-^ ' a narrow street near Covent Garden. Storr & Co. * /v carried on business as auctioneers, on adjacent premises, which had an out-let close to Beu- jamin^s house. Storr and Co.^s vans were constantly being unloaded in this out-let, and intercepted the light flowing on to Ben j amines windows, to such an extent as to oblige him to burn gas all day. In an action by Benjamin for the obstruction of his light, and for an injuction to restrain Storr & Co., it was held that the plaintiff could recover special damage in respect of the extra gas which he had been compelled to burn, {d) (v) Illustration. Riding kept a draper's and grocer's shop, and was assisted by his wife in the busi- ness. Smith said in the pi;^sence of several persons that Mrs. Riding had been guilty of adultery with the new incumbent of a neigh- bouring church. Riding sued Smith for ma- liciously making this statement with reference («) France v. Gaudet, L. R. 6 Q. B. 199. (b) Williams v. Reynolds, 34 L. J. Q. B. 221. (c) Cory v. Thames Ironworks Company, L. R. 3 Q. B. 181. id) Benjamin v. Storr, L. R. 9 C. P. 407. DAMAGES. 295 to his business^ and proved as special damage that his trade had considerably fallen off. The Court held that he was entitled to recover the damage proved, (e) (vi) Illustration. Mainwaring, a broker in London, received a commission from Gevers & Co., merchants in Holland, to purchase and ship from Porto Rico tobacco of the best quality. Mainwaring employed Brandon & Co. to exe- cute the order, and Brandon & Co. bought and shipped a quantity of rotten and inferior tobacco, which Gevers & Co. refused to accept. Gevers & Co. sued Mainwaring for, and re- covered from him, damages for the breach of contract. Mainwaring then sued Brandon & Co., and the Court held that he was entitled to recover, not only the damages he had had to pay Gevers & Co., but also the costs he had incurred in defending the action (/) [NoTK. The costs of defending an action can only be recovered when, (") They are the natural and proximate consequence of the breach of con- tract ; {g) (^•) They are such as a prudent and reason- able man would, under similar circum- stances have incurred, [h) \ [§ Prospective damages may be given by the jury in respect of consequences, which they believe will almost certainly happen, [i) (e) Riding v. Smith, 1 Ex. D. 91. (/) Maimraring v. Brandon, 2 Moore, 125. (y) llklmrdson v. Dunn, 8 C. B. N. S. 655. (Ji) Broom v. Hall, 7 C. B. N. S. 503. (t) Eichardion v. Mdlish, 2 Bing. 240. 296 RUBRIC OF THE COMMON LAW. § The damages must not be too remotely connected with the cause of action. § In order not to be too remote they must be — ,.• I. In actions of contract, damages, which may reasonably be supposed to have been in the contemplation of both parties at the time of entering into the contract, as the probable result of a breach of it. Illuatration. Hadley & Co., the owners of a flour mill, sent a broken iron shaft to Baxendales, the carriers, to be delivered to Joyce & Co. as a pattern, from which Joyce & Co. were to make a new shaft. At the time of leaving the shaft, they told Baxendales^ clerk that the mill was stopped, and the shaft must be delivered immediately, but said nothing to lead him to suppose that the working of the mill depended on the expeditious despatch of the shaft. Baxendales did not deliver the shaft to Joyce & Co. for several days, and the making of the new shaft was thereby proportion- ately delayed. Hadley & Co. sued Baxendales for the loss of profits which they incurred through the mill being stopped. And the Court held that the damage was too remote. («) § The damage will have been in the contemplation of the parties. 1 . When the special circumstances of the case are known to them. (i) Illustration. The British Columbia Saw Mill Company delivered to Nettleship several cases of machinery to be carried in his ship to Vancouver's Island_, for the erection of a saw mill. On the arrival of the ship at Van- couver's Island, one of the cases, which con- tained certain portions, without which the mill could not be erected, and which could (a) Hadley v. Baxendale, 9 Ex. 341. DAMAGES. 297 not be replaced without sending to England, was missing, and the company sued Nettle- ship for the actual cost of replacing the machinery, and also for loss incurred by the stoppage of the works for the twelve months which elapsed before the lost machinery could be replaced. Nettleship only knew at the time he shipped the cases that they con- tained machinery, and was informed of nothing further. The Court held that the damage claimed for the stoppage of the works was too remote, {b) (ii) fllustrado/t. Stuart^s business was to collect telegraphic messages for transmission to America. Sanders & Co. entrusted him with a message in cypher, which was unin- telligible to Stuart. He negligently omitted to send the message, in consequence of which Sanders & Co. lost a sum of money, which they would have earned for commission on an order, to which the message related. In an action by Sanders & Co. against Stuart, it was held, that they were only entitled to nominal damages, (c) ■-i. Where the damage flows naturally from the breach of contract under those special circumstances. Jlluslratiofi. Hobbs and wife and two chil- dren were passengers by the South Western Railway, from Wimbledon to Hampton Court, by the midnight train. Tlie train instead of going to Hampton Court branched at Surbiton ; and they were, therefore, obliged (h) British (Jolumhia Saw Mill Companu v. Nettleship, L. E. 3 C. P. 499. (c) Sanders v. Stuart, 1 C. T. D. 326. 298 RUBEIO OF THE COMMON LAW. to aliglit at Esher, some four or five miles from their destination. No conveyance could be got, and no accommodation at an inn; and they were all obliged to walk home. The night turned out a wet one, and the wife caught a severe cold, and was laid up for some time. They sued the Company for damages ; and the jury gave them £8 for the inconvenience, to which they had been submitted ; and jg20 for the expenses in I curing the wife. The Court held, that the verdict should stand for £8 ; but that as to the £20, the illness, and its consequences, were too remote, {a) H. Where the special risk has been either expressly, or impliedly assented to by the party to be charged therewith. J /lustration. Home & Co., shoe manufacturers, of Kettering, were under a contract to supply a quantity of military shoes to a firm in London for the use of the French army, at 4*. a pair, an unusually high price. The shoes were to be delivered by Feb. 3rd, 1871, and Home & Co. sent them in good time to the Midland Railway for carriage to London, with notice that the shoes would be thrown on their hands if not delivered by Feb. 3rd; but no notice was given that there was any- thing exceptional about the contract. The shoes were not delivered till Feb. 4tli, and were rejected, and had to be sold for the market price of such shoes, viz., 2*. 9d. a ((() Hobbs v. London and South Jfedcrn Railway Compan]]^ L. R. 10 Q. B. 111. DAMAGES. 299 pair. Home & Co. then sued the company for the full value of the contract at 4*. per pair, less the amount realized on sale at 2*. 9c?. per pair ; and the company paid into court the sum of £20 to cover the expenses of the sale, and of the delivery to the ulti- mate purchaser. The Court held that the extra Is. Sd. per pair could not be recovered, as, in the absence of something equivalent to a con- tract on the defendant's part to be liable for the extraordinary price, they could only be reasonably supposed to have had in their con- templation that the plaintiff's contract was to supply shoes at an ordinary price, {b) II. In actions of tort, damages, which it was probable would, in the natural course of events, flow from the original wrongful act. (i) Illustration. Some workmen of the London & South Western Railway Company cut the grass and trimmed the hedges at the side of a portion of the line. They placed the cuttings in heaps, Avhich, during the very dry weather, became so dry that some sparks from an engine set them on fire. The fire spread to the hedge, and burnt the hedge, and then across a stubble field, and over a road for some 200 yards, and set fire to Smithes cottage. In an action by Smith against the company, the Court held that the damages were not too remote, and the company were liable for all the consequences naturally re- sulting from their negligence, tohether they could have foreseen them or not. {c) (b) Home v. Midland Railicay Company, L. R. 8 C. P. 131. (c) Smith v. Lomlon and South Western Railway Company, L. 11. 6 C. P. 14. 300 RUBRIC OP THE COMMON LAW. (ii) Illustration. Felton gave Hoey (a cigar maker) into custody upon an unfounded charge. He was de- tained from 1.30 to 2.0, when lie was set at liberty. At two o^clock Hoey had an appointment with a cigar manufacturer to consider the latter taking Hoey into his employment. But by reason of Felton^s conduct, Hoey was unable to keep his appointment, and on attending the following morn- ing found the place had been given to another. In an action by Hoey against Felton for false im- prisonment, it was held that his claim for damage in respect of his loss of the engagement was too remote, for such damage does not in the common course of events follow from such a wrongful act as the defendant's, the act and the damage in such a case not being known by common experience to be in sequence, {a) [Coinpare also the cases, ante, on special damage.] § The OEIGINAL DOER OF A WRONGFUL ACT IS RESPONSIBLE FOR THE CONSEQUENCES OP THAT ACT. Illustration. Shepherd threw a lighted squib from the street into a market house, where many people were assembled. It fell upon the stall of one Yates, who sold gingerbread. One Willis, to save Yates' goods, picked it up, and threw it across the market ; where it fell on the stall of one llyall, who to save his goods took it up, and threw it across the market house again. In this last flight it struck Scott in the face, burst, and put out one of his eyes. He sued Shepherd in trespass for the injury ; and the Court held, that Shepherd, who had originally set the dangerous thing in motion, was liable, the injury to Scott being the {a) Hoey v. Fdtou, 11 C. B. N. S. 146. DAMAGES. 301 immediate consequence o£ Shepherd^s wrongful act. (b) § Damage will not be too remote, although a third party has intervened, and immediately caused the injury, Illustration. Chambers, who was the proprietor of certain athletic grounds at Lilly Bridge, illegally placed a barrier across a private road near his fence, to prevent persons from driving up to the fence, and looking over at the sports. Some person mis- chievously removed a portion of this barrier, which was covered with spikes, and set it up on the footpath by the side of the road. Clarke, who was coming along the footpath on a dark night, ran against the spikes, and injured his eye. In an action by Clarke against Chambers it was held, that the defendant was liable, (c) § Interest may be recovered. 1 . On judgments in the Superior Courts, at the rate of four per cent, [d] 2. On negotiable instruments. 3. Where there is an express, or implied agreement to pay interest, (e) 4. Where a sum which can be ascertained by calcula- tion (/) is payable, (i) By virtue of a written instrument; and (ii) At a certain time ; or (iii) By virtue of a demand for payment, in writing, with written notice that interest will be cliarged from the date of tlie demand, {y) (6) Scott V. Shqyherd, 2 Win. Bl. 892. (c) Clarice v. Chambers, 3 Q. B. D. 327. (rf) 1 & 2 Vict. c. 110, s. 17. (e) Ex parte JFillinms, 1 Rose, 399. (/) Harper v. Williams, 4 Q. B. 234. Ill) 3 & 4 AVill. 4, c. 42, s. 28. 302 RUBEIO OP THE COMMON LAW. 0. In actions of (ij Trover ; (ii) . Trespass to goods ; (iii) On policies of insurance. («) [Note. It is in the discretion of the jury to give interest in cases 4^ and 5. {b) ] Of Liquidated Damages and Penalties. § Liquidated Damages. A sum agreed upon beforehand by the parties to a contract^ as the ascertained satisfaction for its breach. 1. Where the consequences of the breach are altogether uncertain ; 2. Where the parties themselves can most correctly esti- mate the damage. Illustration. Galsworthy and Strutt, solicitors, dis- solved partnership, Strutt covenanting not to practise during the then next seven years, directly or indirectly, as solicitor or attorney within fifty miles of Ely Place, nor interfere with, solicit, or influence the clients of the late co-partnership ; and for a breach of such covenant to pay Gals- worthy the sum of £1,000 liquidated damages. Strutt broke his covenant and practised in West- minster ; and, on Galswortliy suing him on the covenant, paid =£50 into court as satisfaction for a penalty. The Court held that the sum of £1,000 was liquidated damages, for no man can say how much he may be injured by the loss of oue of his clients, (c) § A penalty is a sum which one of the parties to a contract has bound himself to forfeit in the event of — 1 His f aiUng to pay a much smaller sum ; («) 3 eSi 4 Will. 4, c. 42, s. 29. (h) Ibid. ss. 28, 29. (c) Galsworthy v. Sfrutf, 1 Ex. 6fi3, DAMAGES. 303 2. His failing to perform certain specified terms of the contract. [Note. Cases of great hardship arose, where all the material terms of a contract were fulfilled, but some insignificant matter had been neglected, whereby the full penalty became forfeit. Whereupon the Court of Chancery was in the habit of interfering by injunction, upon the defendant's satisfying the plaintiff's substantial claim, to restrain the plaintiff, who had recovered a penalty at common law, from obtaining the fruits of his judgment. Thereafter the legislature proceeded to give relief at common law, as follows. 1, In the case of common money bonds [where the bond is to become void on payment on a certain day of a certain less svim, and other- wise the larger penal sum to become forfeit.] (i) If the principal and interest due were paid before action (though the bond was forfeit), a defence was given to the action, (ii) If the principal and interest due were not paid before action, they might be paid into court, and the bond discharged, {d) 2. In the case of bonds, under which a penal sum is to be forfeit, upon failure to perform certain acts therein specified. (i) The plaintiff is bound, in an action on the bond, " to assign breaches " (that is, to specify the defendant's acts, for which he claims forfeiture of the pe- nalty) . (ii) The plaintiff may, if he pleases, pay money into court to meet the claim. (iii) The jury, if sufficient money is not paid (eriod of twenty years, shall be defeated or destroyed by showing uidy 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 WTiting. III. And be it further enacted, that wlien the access and use of light claim to the to and for any dwelling-house, workshop, or other building shall have "nfoyed'for' been actually enjoyed therewith for the full period of twenty vears with- 20 years inde- fcasiblG unless out interruption, the right thereto shall be deemed absolute and inde- shown to have feasible, any local usage or custom to the contrary notwithstanding, ^'^^'^'^^ ^°"^'^"*- unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that pui'pose by deed or writing. IV. And be it further enacted, that each of the respective periods of Bcfore- years hereinbefore mentioned shall be deemed and taken to be the period periods to be next before some suit or action wherein the claim or matter to which ,''p|™^pf[^,!e^° such period may relate shall have been or shall be brought into (juestion, suits for claim and that no act or other matter shall be deemed to be an interruption, periods relate, within the meaning of this statute, unless the same shall have been or shall be submitted to or acc^uiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person nuiking or authorizing the same to be made. 314 APPENDIX. 8 & 9 VICT. Cap. 106. AN ACT to camend the Law of Real Property. [4th August, 1855.] Feoffments, partition?, exclianges, leases, assign- ments, and surrenders required (subject to certain ex- ceptions) to be by deed. III. That a feoffment, made after the said first day of October, one thousand eight hundred and forty-five, other than a feoffment made under a custom bj^ an infant, shall be void at law, unless evidenced by deed ; and that a partition, and an exchange, of any tenements or here- ditaments, not being copyhold, and a lease, required by law to be in writing, of any tenements or hereditaments, and an assignment of a chattel interest, not being copyhold, in any tenements or hereditaments, and a surrender in writing of an interest in any tenements or heredita- ments, not being a copyliold interest, and not being an interest which might by law have been created without writing, made after the said first day of October, one thousand eight hundred and forty-five, shall also be void at law, unless made by deed : Provided always, that the said enactment so far as the same relates to a release'or a surrender shall not extend to Ireland. When the reversion on a lease is gone the next estate to be deemed the reversion. IX. That when the reversion expectant on a lease, made either before or after the passing of this Act, of any tenements or hereditaments, of any tenure, shall, after the said first day of October, one thousand eight hundred and forty-five, be surrendered or merge, the estate which shall for the time being confer as against tlie tenant under the same lease the next vested right to the same tenements or hereditaments, shall, to the extent and for the purpose of preserving such incidents to, and obliga- tions on, the same reversion, as, but for the surrenderor merger thereof, would have subsisted, be deemed the reversion expectant on the same lease. 17 & 18 VICT. Cap. 31. AN ACT for the better Eegulation of the Traffic on Railways and Canals. [10th July, 1854.] VII. Every such company as afoi'csaid shall be liable for the loss of or for any injury done to any horses, cattle, or otlier animals, or to any Company to be liable for neglect i*ii the'^caiTiao-e articles, goods, or things, in the receiving, forwarding, or delivering of goods, not- withstanding notice to the contrary. thereof, occasioned by the neglect or default of such company or its ser- vants, notwithstanding any notice, condition, or declaration made and given by such company contrary 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 APPENDIX. 315 contained shall he construed to prevent tlie 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 ^o ™J'^°hie°'^ damages shall be recovered for the loss of or for any injury done to any beyond a of such animals, beyond the sums hereinafter mentioned ; (that is to amuunt in say,) for any horse, fifty pounds ; for any neat cattle, per head, fifteen ^"^^^"ujjig pounds for any sheep or pigs, per head, two pounds ; unless the person the value sending or delivering the same to such company shall, at the time of extra iniyment such delivery, have declared them to be respectively of higher value than made. as above mentioned ; in which case it shall be lawful for such company to demand and receive by way of compensation for the increased risk and care thereby occasioned, a reasonable per-centage 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 per-centage or increased rate of charge shall be notified in the manner prescribed in the statute Eleventh George Fourth and First William Fourth, chapter sixty-eight, and shall be binding upon such company in the mamier therein mentioned ; Provided also, that the Proof of proof of the value of such animals, articles, goods, and things, and the on the person amount of the injury done thereto, shall in all cases lie upon the person compmsation. claiming compensation for such loss or injury: Provided also, that no ^'o special special contract between such company and any other parties respecting be binding the receiving, forwarding, or delivering of any animals, articles,goods, or ""^s^^ signed. 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, Carried" Act, articles, goods, or things respectively for carriage: Provided also, that J' y°j-^'|;"gg nothing herein contained shall alter or aft'ect the rights, privileges, or liabilities of any such company under the said Act of the Eleventh George Fourth and First William Fourth, chapter sixty-eight, with respect to articles of the descriptions mentioned in the said Act. 19 & 20 VICT. Cap. 97. AN ACT to amend the Laws of England and Ireland affecting Trade and Commerce. [29th July, 1856.] III. No special promise to be made by any person after the passing of consideration this Act to answer for the debt, default, or miscarriage of another person, need not'appcar being in writing, and signed by the party to be charged therewith or by writing, some other person by him thereunto lawfully authorized, shall be deemed invalid to support an action, suit, or other proceeding to charge the person by whom such jn-omise shall have been made, by reason only that the consideration for such promise does not a^jpear in writing, or by ncessary inference from a written document. 316 APPENDIX. 26 & 27 VICT. Cap. 41. "^ AN ACT to amend the Law respecting tlie Liability of Innkeepers, and to prevent certain Frauds upon tlieni. [IStli July, 1863.] Whereas it is expedient to amend the law concerning the liahility of innkeepers in respect of the goods of their guests in manner hereinafter mentioned : Be it therefore enacted Ly the Queen'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, as follows ; (that is to say), Innkeeper not I. No innkeeper shall, after the passing of this Act, be liable to make to be liable for , , i. r i • i ^ r ■ ■ . i loss, &c., beyond good to anj' guest ot such innkeeper any loss ot or injury to goods or ccn'ain'^ca.ses" pi'operty 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 the sum of thirty pounds, except in the following cases ; (that is to say,) (1.) Where such goods ur property shall have been stolen, lost, or injured through the wilful act, default, or neglect of such inn- keeper or any servant in his employ : (2.) Where such goods or property shall liave been deposited expressly for safe custody with such innkeper : Provided always, that in the case of such deposit it shall be lawful for such innkeeper, if he think fit, to re(|uii'e as a condition of his liability, that such goods or property sliall be deposited in a box or other receptacle, fastened and sealed by the person depositing the same. Obligation to II. If any innkeeper shall refuse to receive for safe custody, as before of "^ff iHssfs for'^'^ mentioned, any goods or proj^erty of his guest, or if any such guest safe custody. shall, through any default of such innkeeper, be unable to deposit such goods or property as aforesaid, such innkeeper shall not be entitled to the benefit of this Act in respect of such goods or property. Notice of law, HI. Every innkeeper shall cause at least one copy of the first section consiiicuousiy cf this Act, printed in plain type, to be exhibited in a consj)icuous part exhibited. of the hall or entrance to his inn, and he 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. Interpretation IV. The words and expressions hereinafter contained, which in their ordinary signification have a more confined or a different meaning, shall APPENDIX. 317 in this Act, except where the nature of the provision or the context of the Act shall exclude such construction, he interpreted as follows ; that is to say, the word "inn" shall mean any hotel, inn, tavern, public- house, or other place of refreshment, the keeper of which is now by law responsible for the goods and property of his guests ; and the word "inn- keeper " shall mean the keeper of any such place. 28 & 29 VIOT. Cap. 86. AN ACT to amend the Law of Partnership. [5th July, 1865.] Whereas it is expedient to amend tlie law relating to partnership : Be it therefore enacted by the Queen'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 tlie authority of the same, as follows : 1. The advance of money by way of loan to a person engaged or aboiit ^1*° i^f'vauce 1 , . ... of money ou to engage in any trade or undertaking upon a contract m writing with contract to such person that the lender shall receive a rate of interest varying with of'^profits^iot^ the profits, or shall receive a share of the profits arisiu" from carrvinic to constitute ■1 T 1.1- in , r. • 1,- • 1,1 tlie lender a on such trade or undertaking, sliall not, oi itself, constitute the lender a partucr. partner with the person or the persons carrying on such trade or under- taking, or render him responsible as such. IL No contract for the remunerafion of a servant or a'ient of anv T'^^ remuncru- 11-1 " tidu of agents, person engaged m any trade or undertaking ijy a share of the profits of &c., by share of such trade or undertaking shall, of itself, render such servant or agent ulakcMicm ° responsible as a partner therein, nor give him the rights of a partner. partners. III. No person being the widow or child of the deceased partner of a Certain trader, and receiving liy way of annuity a portion of the profits made by "to be deemed such trader in his business, shall, by reason only of such receipt, be l'^»"''i<^i's- deemed to be a partner of or to be subject to any liabilities incurred by such trader. IV. No person receiving by way of annuity or otherwise a portion of R<'<'c'Pt.of the profits of any business, in consideration of the sale by him of the sideration of goodwill of such business, shall, by reason only of such receipt, be not to ma'kc^"' deemed to be a partner of or be subject to the liabilities of the person ^''^ •■*^"^^" ^ , i . ^ partner, carrying on sucli business. 318 APPENDIX. In case of y. Jn the event of any such trader as aforesaid being adjudged a lender not"t'o ' bankrupt, or taking the benefit of anj^ Act for the relief of insolvent creditors^ °^^'^^ debtors, or entering into an arrangement to pay his creditors less than twenty shillings in the pound, or dying in insolverit circumstances, the lender of any such loan as aforesaid shall not be entitled to recover any portion of his principal, or of the j^rofits or interest payable in respect of such loan, nor shall any such vendor of a goodwill as aforesaid be entitled to recover any such profits as aforesaid until the claims of the other creditors of the said trader for valuable consideration in money or money's worth have been satisfied. Interpretation VI. In the construction of this Act the word " person " sliall include of 'person. ^ partnership firm, a joint stock company, and a corporation. INDEX OF EXAMPLES. PAOB Abuse, mere, not actionable ... ... ... ... ... 246 Agent, when wife may be ... ... ... ... ... 130 Agreement for sale of goods 57 Annoyance amounting to a nuisance ... ... ... 203 Authority, when implied by custom, 1, 2, 3 119 Bailment 82 Bill of Exchange 138 Carrier, to whom liable ... ... ... ... ... 90 Commodatum 82 Condition precedent, in case of sales 70 Conditional sale of goods 56 Contract, executed 17 executory ... ... ... ... ... ... 17 implied ... ... ... ... ... ... 17 in restraint of marriage ... ... ... ... 127 misjoinder of parties ... ... ... ... 10 opposed to public policy ... ... ... ... 31 simple ... ... ... ... ... ... 22 Contribution to lawful game 33 Contributory negligence, 1, 2, 3, 4, 5, 6 221 Covenants, dependent 158 independent ... ... ... ... ... ... 158 to repair, tenant's liability under ... ... ... 161 Custom of merchants 2 Customs, particular or local 2 Damages, general, in contract, l, 2, 3, 4, 5, 6 290 in tort, 1, 2,3, 4, 5 291 320 INDEX OF EXAMPLES. Dependent covenant Deposition Distress, wrongful ... Dominant tenement Estoppel in pais ••• Executed contract ••• Executory contract Fixtures, tenants' . . . Forfeiture of lease waiver of ... Guarantie, wl^at Illegal consideration Illegal distress Implied contract • • Independent covenants Land, sale of an interest in Lex non scripta • • • Locatio operis faciendi Mandatum Marriage, contracts in restraint of , Merger of contract of specialty in contract of record simple contract in contract of specialty lease... Misjoinder of parties to a contract;. Mutuum Negligence, what contributory, what ... Ne^flicfent personal conduct use of real property use of chattels PAGE 158 82 214 175 166 17 17 195 167 167 95 32, 33 214 17 168 41 1 83 82 127 19 20 167 10 83 220 221 260 208 220 INDEX OP EXAMPLES. 321 PAGE Notice to quit 155 Nuisance, P^iljlicj when actionable... ... ... ... 206 Particular customs 2 Privity, what 21 Proinise> a bare, not umler seal, void ... ... ... 37 implied, where consideration executed, with previous request ... ... ... ... 24 not implied, where consideration executed with previous request ... ... ... ... 24 Promissory note 141 Public nuisance, when actionable 200 Public policy, contracts opposed to ... ... ... 31 Quit, notice to ... ... ... ... ... ... 155 Request when implied 25 Sale of Goods, agreement for 57 conditional ... ... ... ... ... ... 56 Servient tenement 175 Servitude 175 Slander, when actionable ... ... ... ... ... 247 Specific performance, when granted 35 Surrender by estoppel 166 Taskwork, contract of 77 Tenancy at will, how impliedly terminated ... 150 Tenancy on suflcrauce, what ... ... ... ... 150 Tenants fixtures 195 Torts founded on contract ... ... ... ... ... 51 Trademark which has become j^i(6/ic/ y»m ... ... 207 Usage 1 Vituperation, mere, not actionable 240 Waiver of forfeiture of lease ... ... ... ... 1G7 Warranty 60 Written contract defeating the Prescription Act • • • 48 INDEX OF ILLUSTRATIVE OASES. PAGE Abandonment of servitude 192 Abatement of nuisance 200 Acceptance of contract, actual, 1, 2 43 constructive, 1, 2 ... ... 44 Accord and satisfaction 28 Actual receipt, constructive 44 Admission defeating the Statute of Limitations- conditional promise becoming absolute ... ... 16 when insufficient ... ... ... ... ... 16 Agent, cannot dispute his principal's title ... ... 110 exceeding his authority ... ... ... ... 110 fraudulent ; when he cannot bind his principal ... 72 having an interest may sue .. . ... ... ... 120 liability of, where there is no principal ... ... 121 liability of, for representing that he had authority... 121 not liable when agency notorious ... ... ... 123 receipt by, is receipt of principal ... ... ... 123 receiving money for third party ... ... ... 123 rights of, against principal ... ... ... ... 109 signing contract in his own name, 1 ... ... 122 2 122 where principal is undisclosed, may sue ... ... 120 Alteration of Negotiable instruments 150 Agreement for sale of goods 57 Apparent possession under Bills of Sale Act 64 Apprentice, permanent illness of . . . ... ... ... 76 Appropriation, on sale of goods, what 58 INDEX OF ILLUSTRATIVE CASES. 828 PAGE Authority, express, incliules implied ... ... ... 117 implied by conduct of principal ... ... ... 118 implied by com'se of dealing ... ... ... 117 of agent notoriously limited ... ..." ... 110 of M'Qonan living as wife to pledge credit of apparent husband ... ... ... ... 130 Bailee, dntj oi, in case oi locatia opens fadoidi ... ... 86 duty of, in case of locatio rei ... ... ... 86 Bailor, duty of, in case o^ locatio rci ... ... ... 85 Bill of Exchange, onus of proof that value has been given for, in what case lies on holder ... ... 144 Brokera^^e, marriage, contracts of are void ... ... 127 Carrier, liability of, at end of transit ... ... ... 94 liability of, inherent vice in the thing bailed ... 87 when not liable for passengers' personal luggage... 91 Caveat emptor, 1,2 69,70 Condition precedent iu case of sale, express 71 implied ... ... 71 Consideration, i < 2 22, 23 expressed in a written memorandum ... ... 47 immoral ... ... ... ... ... ... 81 Contract, executed, when promise supported by previous request ... ... ... ... ... ... 23 in restraint of trade, 1,2... ... ... ... 32 of record acts as an estoppel ... ... ... 19 of task work or of sale, distinction between ... 78 under duress ... ... ... ... ... 30 voidable through fraud, election to hold it void ... 30 Contribution to lawful game, what 34 Contributory negligence, when not a defence, 1, 2, 3... 221, 222, 223 Conversion, 1, 2, 3, 4 211,212 act of, cannot be purged ... ... ... ... 212 Corporation, contract by, not under seal, when valid, 1, 2, 3,4,5 38,39,40 z 324 IKDEX OF ILLTSTRATJVE CASES. PAGE Covenant entered into with agent ... ... ... ... Ill not discharged hj written Hcense ... personal Cruelty j^^stifying wife in leaving husband... Custom to go upon the land of another 27 159 136 191 to take a profit in the land, when it can vest in a class 191 Damage feasant, "\vhen things may not be taken 201 Damage, exemplary 289 when in the contemplation of the parties, 1, 2, 3,4 29(5,297,298 liquidated... 302 remoteness of, 1, 2, 3, 4, 5, 6, 7, 8 296, 297, 298, 299, 300 special, 1, 2, 3, 4, 5, 6 292,293,294,295 Damnum sine injuria 3, 50 Dangerous premises, liability of owner of, to persons on lawful business ... ... ... ... 204 hability of owner of, to a bare licensee ... ... 205 Dangerous thing kept at owner's peril 202 Delivery of goods 59 Detinue founded on tort ... ... ... ... ... 6 Discharge of contracts under seal after breach, when possible, by accord and satisfaction ... ... 27 before breach, by deed ... ... ... ... 27 Dismissal of servant, reasons for, 1, 2, 3 75 Duress, contracts made under ... ... ... ... 30 Election to hold contract void by reason of fraud ... 30 Equitable waste 195 Estoppel ^y contract of record ... ... ... ... 19 Evidence, see " p.\rol evidence. " Executed contract within statute of Frauds, need not be in writing ... ... ... ... ... 42 False representation not fraudulent 72 INDEX OF ILnrSTRATIVE CASES. 325 PAGE Father I'ig^^t of, to custody of infant child ... ... ... 283 when the court will interfere with the right of ... 284 Faults, sale with all 73 Finder of Chattel has good title against all but the true owner 213 Forfeiture of conditional servitude... ... ... ... 193 of lease, waiver of .. . ... ... ... •■. 1^7 Forgery of negotiable instruments ... ... ... ••• 151 Fraud optional to hold void contract induced by . . . ... 30 Fraudulent agent, signature of, when it vnW not bind principal ... ... ... ••• ••• 263 Fraudulent misrepresentation at sale 72 liability of one who makes, though not personally interested ... ... ... ... ... 2G1 Fraudulent misrepresentation may be partly veriwl under Lord Tenterden's Act ... ... ... 262 may be made by conduct ... ... ... ... 264 not made directly ... ... ... • • • 264 of third party to induce a marriage ... ... 127 when made to the public ... ... ... • • ■ 264 Furnished house, ^'fii'i'anty that it is habitabl(> 162 Gaming contract, recovery of deposit from stakeholders 33 Grant of servitude implied, 1, 2, 3, 4, 5 182, 183, 184, 185 lost, essentials to claim under 1, 2, 3, 4, 5 ... 185, 186, 187, 188 lost, evidence in rebuttal of ... ... ... 189 more than a license ... ... ... ... 182 Guarantie, essentials of, 1, 2, 3 95,96 rights and liabilties of the sureties, 1, 2, 3, 4. 98, 99, 100 when may be revoked ... ... ■ • • • . 98 when surety discharged, 1, 2, 3 ... ... 96, 97, 98 Hiiing for a year 74 Husband misconduct of, justifying his wife's leaving him 136 Illness, permanent, of apprentice ... ... ... ... 76 Immoral conduct of servant, ground for dismissal ... 75 Immoral consideration avoiding a contract 31 z 2 326 INDEX or ILLUSTRATIVE CASES. PAGE Implied grants of servitudes, l, 2, 3, 4, 5 182, 183, 184, 185 Indemnification of agent by principal 109 Infirmity of title to bill of exchange, implied notice of ... 145 Inherent vice in thing bailed 87 Injunction to restrain breach of contract ... ... ... 36 Injuria sine damno B Injury to child of tender years — master and servant . . . 283 Innkeeper, liability of, under Innkeepers Act ... ... 88 Land, sale of an interest in, what ... ... ... ... 41 License iiot a grant 182 Licensee, liability of owner of dangerous premises to ... 205 Lien vendor's right of, revived by insolvency of vendee, 1,2,3 00,61 Limitation, Statute of, how defeated 16 Liquidated damages 302 Locatio operis faciendi, duty of bailee in case of ... 8G Locatio rei, duty of bailee in case of ... ... ... 86 bailor ,, ... ... ... 85 Luggage, personal, of passenger in railway carriage ... 91 MaHce, ^vhat 243 in fact destroys privilege ... ... ... ... 249 Mandamus for breach of contract 36 Market overt, sale of goods in 53 Marria<^e, brokerage contract respecting ... ... ... 127 not part performance of contract tinder Statute of Frauds .128 Master, has a right of action for enticing away his servant 281 has a right of action for torts committed against his servant, 1, 2 281,282 when he may dismiss servant without notice, 1, 2, 3 75 when liable for injuries to servant in course of his employment, 1, 2, 3 277,278 when not liable for injuries to servant in course of his employment, 1, 2, 3 278,279 INDEX OF ILLUSTRATIVE CASES. 327 Master — continued. page when liable for torts committed by servant, 1, 2, 3,4,5 272,273,274 Material terms in written contract, 1, 'I, H ... 46, 47 Memorandum in writing, essentials to a valid, under statute of Frauds, 1, 2, 8, 4, 5, G 40,47,48 Memorandum in writing, several documents may con- stitut- 48 Misrepresentation, fraudulent 72 not fraudulent does not avoid sale... ... ... 72 Mistake when contract will be avoided on account of ... 31 Names of parties in memorandum in writing ... . . 46 Natural servitudes, 1, 2, 3, 4 176,177 Necessity, way of 183 Nef^liccence by bailee in cases of lucatio uperis faciendi, 1,2,3 86,88,91 by bailee in cases of ?ocrtf/o jY'i ... ... ... 86 by bailor ,, ,, ••• ... 85 of drawer of negotiable instrument ... ... 151 Negotiable instrument, immaterial alteration in ... 150 Notice of action 242 of infirmity of title to negotiable instrument ... 145 of termination of yearly hiring ... ... ... 74 Nuisance, abatement of 200 examples of, 1, 2, 3, 4, 5, 6 203, 204 what is no defence to an action for, 1, 2, 3 ... 207 Operation of law, surrender ]jy, 1, 2 164,165 Original doer of wrongful act is responsible 300 even when the wrongful interference of third party has caused the mischief ... ... ... 301 Parol agreement for a lease, when specific performance of, granted ... ... ... ... ... 157 Parol evidence may bo given to charge a new party on a written contract ... ... ... .. 116 328 INUEX OF ILLUSTKATmE CASES. Parol evidence — continued. page may not be given to discharge an apparent party to a written contract ... ... ... ... 116 Part performance of a contract under Statute of Frauds, marriage is not ... ... ... ... 128 Penalties, 1, 2 304,305 Personal covenant 159 Personal luggage, liability of railway company for ... 91 Presumption of lost grant may be rebutted ... ... 189 of wife's authority to pledge husband's credit may be rebutted, 1, 2, 3. 4 ... 131, 133, 134 of wife's authority to pledge husband's credit, when irrebuttable ... ... ... ... ... 135 Price 47 Principal, when may revoke his authority to agent, 1,2 . . . ] 07, 108 when he must indemnify his agent ... ... 109 Privileged occasions, i, 2, 3, 4, 5, 6, 7,. 8, 9, 10, ii ... 250, 251, 252, 253, 254, 255, 256 Promise binding when consideration is executed and there is a previous request ... ... ... ... 23 implied, only co-extensive with the consideration... 24 Property in goods when retained after apjiropriation on an agreement for sale .. . ... ... ... 59 Quantum meruit, 1, 2, 3, 4, 5, 79,80,81 Eailway Company forwarding goods by other lines ... 93 Ratification by principal of agent's contract, 1, 2 ... 113, 115 Reasonable cause 244 Receipt, constructive actual, 1, 2 ... ... ... 44,45 Religion of child, ante-nuptial agreement by father as to, void 286 Representation, false 72 fraudulent ... ... ... ... ... ... 72 Request, where implied, 1, 2 25,26 Sale of goods, agreement for 57, 58 in market overt, title to ... ... ... ... 53 INDEX OF ILLUSTRATIVE OASES. Sale of goods — continued. not in market overt, title to, 1, 2 ... conditional, 1, 2 nnconditional, what contititutes with all faults Sample, si:^le hy. ^^'^I'l'^^^b' i-^i'^^^'i' ••• Servant of tender years, injury to Servitude, abandonment of forfeiture of, conditional natural, 1, 2, 3, 4 Signature of party to be charged on written contract Slander, when actionable, 1, 2, 8 Special contract uncompleted, i, 2, 3, -i, 0, u... Specific performance of parol agreement for lease when granted Stoppage in transitu Sub-agent, to whom liable Sub-contractor, negligence of, when Luipioyer for, 1, 2, 3 Surety niay revoke guarantie rights and duties of, 1, 2, 3, 4 when discharged, 1, 2, 3 ... Surrender by operation of law, 1, 2 Task-work, contract of Tenancy for less than a year, how implied ... Tenant iii possession under a void louse, for what liab Title to goods "ot purchased in market overt, 1, 2 purchased in market overt ... Trade, contracts in restraint of, 1, 2 Trademark Trespass ab initio Trespass, distinguished from conversion to land justifiable, if to abate a nuisance Unconditional sale Underlease, iiot ati'ected by surrender of lease 329 PAGE 54 56, 57 ... 56 .. 73 .. 69 . . 283 .. 192 .. 193 176, 177 ... 47 246, 247 70, 80, 81 ... 157 ... 35 ... 61 ... 109 liable 275, 276 ... 98 98, 99, 100 96, 97, 98 164, 165 ... 78 .. 155 le .. 158 54 53 32 .. 266 .. 199 .. 210 .. 200 56 .. 16G 330 INDEX OF ILLUSTEATIVE CASES. PAGE Undisclosed principal, bound by the equities which are binding on his agent ... ... ... ... 113 habUities of, 1, 2, 3, 4 114,115 may repudiate or adopt a contract made ly his agent without his authority ... ... ... 113 when he may take the benefit of a contract made by his agent ... ... ... ... ... 112 Unskilful work 78 Value given for bill of exchange ; Avhen burthen of proof lies on the holder ... ... ... ... ... 144 Void lease, liabihty of tenant in possession under... ... 153 Volunteer, in same position as fellow- servant ... ... 280 Waiver uf forfeiture of lease ... ... ... ... 167 Warranty, express, what 66 implied, of title, 1, 2 67 implied, of quality, 1, 2, 3, 4 ... ... 68, 69 implied, on sale by sample... ... ... ... 69 Waste, equitable 195 Way sDEX. 347 PAGE Special contract uncompleted 78 divisible aud apportiuuable 79 absolutely determined 80 incapable of completion 81 Special damage 292 in an action for slander 246 Specialty, contract of 17,20 attributes of . . . 20 Specific performance of contract 35 of parol agreement for a lease 157 Stakeholder, liabilities of 33 stannary rigbts in Cornwall 192 Statutes, merchant ... 18 staple 18 Statutory powers, inj"i-ies resulting from the < ixercise of. . . 208 Stoppage in transitu 61 Sub-contractor, liability of for negligence . . . 275 Sufferance, tenancy on 156 Sunday trading illegal 33 Support, ligbts of 177, 178, 184 Supra protest, acceptance of bilk of exchange ... • ... 149 Surety, see " Guaeaxtie." rights and liabilities of 96 Surrender of land, what 38 of lease 164 by operation of law 164 effect of on under lease 166 Suspension of bill of exchange 148 Taskwork, contract of, what 77 Tenancy lit ^\ ill 155 how terminable 156 for less than a year. . . 155 for years 153 from year to j-ear ... 154 how terminable... 154 ou suli'oraucc 156 348 GENERAL INDEX. Tenant, landlord and Tenterden's Act, Lord Third party intervening and causing damage does absolve original doer of wrongful act money paid to agent for Time immemorial Title to goods warrantry of . . . exceptions Torts amoimting to a felony. . . ■ founded on contract generally who may sue and are liable for Total loss, actual constructive ... Trade, contracts in restraint of Trade marks counterfeiting Transferee of bill of lading may sue thereon of promissory note may sue thereon Trespass, f'^ «»'^''o action of, what to goods to land when justifiable Trover, action of, what Truck Acts agreements under not PAGE 153 2G2 301 123 188 53 67 67 51 51 50 10 103 103 32 266 265 11 11 199 7 210 199 199 6 49 Unconditional sale Underlease, effect on, of surrender of lease Under lessee, liabilities of Underwriter, liabilities of ... .«. may re-insure what Undisclosed principal, ligiits ^^^d liabilities of Unnamed principal, ligiits and habilities of 55 166 160 103 102 101 112,114 112,111 GENEEAL INDEX. 349 Unfurnished house, lessor does not warrant Unsound mind, persons of, cannot sue . . . Usage, ^^'liat Use and Occupation Usual covenants, what PAGE 163 8 1 155 157 Vadium 84 Vituperation, mere, not actionable 246 Void lease, tenant's liability under 153 Volunteer iu same position as servant in a common employment ... ... ... ... ... 280 Wagers Waiver of acceptance of a bill of exchange., of notice to quit Warranty of quality of goods of title to goods sale of goods with a, express implied when not implied Waste equitable persons liable for Way of necessity private right of public right of Wife, authority of, to pledge husband's credit cruelty to, by husband, justifying her leaving h deserted by husband in position of a feme sole funeral expenses of, husband's liability for property of, husband's I'ights as to Will, tenancy at Witness, privileged Work and labour, contracts of Writing, wlun authority to agent must be in contracts whicli must be in 33 147 164 67 67 GG GG 69 194 195 194 183 178 178 130 136 9 136 129 155 255 74 107 41 350 GENERAL INDEX. Written memorandum, essentials of signs ture to... Wrongful distress remedies for PAGE 46 47 214 217 Year, contracts not to bo completed within... Yearly hiring, termination of contract for ... tenancy notice to quit under tenant, liability of under a void lease 42 74 154 155 153 London : Printed by Shaw & Sons, Fetter Lane. SCHOOL OF LAW LIBRARY UNIVERSITY OF CALIFORNIA TVT/^TnT ■Ca